1 D.D. v. Idant Labs., 374 F. App’x 319 (3d Cir. 2010).

2 Id. at 321.

3 While the district court extensively discussed choice of law for the statute of limitations and substantive claims, Donovan did not contest those holdings on appeal. Id. at 322 n.3.

4 Fragile X “is a genetic syndrome which results in a spectrum of physical, intellectual, emotional and behavioral characteristics which range from severe to mild in manifestation.” Donovan v. Idant Labs., 625 F. Supp. 2d 256, 263 (E.D. Pa. 2009), aff’d sub nom. D.D. v. Idant Labs., 374 F. App’x 319 (3d Cir. 2010).

5 Id.

6 Id. at 263-64.

7 Donovan's and Brittany's claims include “(1) negligence, (2) breach of contract, (3) third-party beneficiary breach of contract, (4) breach of the express warranty of merchantability, (5) breach of implied warranty of merchantability, (6) third-party beneficiary breach of express and implied warranties of merchantability, (7) negligent misrepresentation, (8) strict products liability and (9) negligent infliction of emotional distress.” Id. at 264.

8 Id.

9 Id.

10 The district court initially denied Idant's motion to dismiss Brittany's strict product liability claim, but upon Idant's motion for reconsideration, dismissed Brittany's strict product liability and breach of express and implied warranty claims because New York law does not recognize wrongful life claims. See id. at 276.

11 D.D., 374 F. App’x at 320, 322, 324.

12 Id. at 322.

13 Id. (quoting Ward v. Rice, 828 A.2d 1118, 1121 (Pa. Super. Ct. 2003)).

14 The statute of limitations discussion pertains only to Donovan and not Brittany because Brittany's minor status tolls her claim. See id. at 322 n.4.

15 Id.

16 Id. at 324.

17 Although the discovery rule tolls the statute of limitations if a party exercised reasonable diligence, in 1998, Donovan had already identified the injury and its source. Id. at 322. The fraudulent concealment doctrine tolls the statute of limitations when plaintiffs reasonably rely upon defendants’ “affirmative independent act of concealment,” but Donovan failed to either identify an affirmative independent act of concealment or establish that Idant's doctors’ letters were fraudulent. Id.

18 For a concise description of wrongful pregnancy, wrongful birth, and wrongful life claims, see Owings, Caroline Crosby, Note, The Right to Recovery for Emotion Distress Arising from a Claim for Wrongful Birth, 32 Am. J. Trial Advoc. 143, 146-48 (2008).Google Scholar

19 In contrast, traditional medical malpractice claims allege that the negligence caused “injury to an otherwise healthy child,” and such claims “typically arise during the labor and delivery process.” Id. at 147-48.

20 Donovan, 625 F. Supp. 2d at 275 (quoting Becker v. Schwartz, 386 N.E.2d 807, 812 (N.Y. 1978)).

21 Only three states, California, New Jersey and Washington, recognize wrongful life claims. See Brad Reich, J. & Swink, Dawn, You Can't Put the Genie Back in the Bottle: Potential Rights and Obligations of Egg Donors in the Cyberprocreation Era, 20 Alb. L.J. Sci. & Tech. 1, 63 n.377 (2010)Google Scholar (citations omitted).

22 Becker, 386 N.E.2d at 812.

23 “[R]egardless of the denomination of the nature of their claims, the infants could not recover because ‘it does not appear that [they] suffered any legally cognizable injury.’” Paretta v. Med. Offices for Human Reprod., 195 Misc.2d 568, 574 (N.Y. Sup. Ct. 2003) (quoting Becker, 386 N.E.2d at 812).

24 D.D., 374 F. App’x at 324.

25 Donovan, 625 F. Supp. 2d at 271.

26 The district court denied these claims on a motion for reconsideration. See supra note 10.

27 Donovan, 625 F. Supp. 2d at 275.

28 Id.

29 While the court combines the concepts of wrongful life and wrongful birth, the district court describes its reasoning behind separating wrongful birth and wrongful life claims brought by parents and children, respectively. In wrongful birth cases, the district court states that parents may bring such claims because it “bring[s] the parents of a child with disabilities to the position in which she would have been had the act causing the disability not occurred.” Id. at 275 n.3.

30 D.D., 374 F. App’x at 324 (quoting Paretta, 195 Misc.2d at 576) (internal quotation marks omitted).

31 Id.

32 See generally Paretta, 195 Misc.2d at 569-72; Becker, 386 N.E.2d at 808-09.

33 In its initial holding, the district court stated that “[u]nder New York law, a manufacturer may be held liable for placing ‘into the stream of commerce’ a defective product which causes injury.” Donovan, 625 F. Supp. 2d at 273.

34 Paretta extends Becker to prenatal genetic testing, but does so with the understanding that prenatal genetic testing cases clearly differ from Becker because modern technology allows physicians to actively affect potential infants’ genetic composition. Paretta, 195 Misc.2d at 575-76. The Paretta court, however, justifies barring wrongful life claims because “permitting infants to recover against doctors for wrongs allegedly committed during in vitro fertilization would give children conceived with the help of modern technology more rights and expectations than children conceived without medical assistance. The law does not recognize such a distinction.” Id. at 576.

35 While some states exempt semen from strict products liability under blood shield laws, the “New York statute does not and no case law has extended [its blood shield laws] to also exempt human tissues like sperm.” Donovan, 625 F. Supp. 2d at 273.

36 Id. at 271-73.

37 See Pollard, Deana A., Wrongful Analysis in Wrongful Life Jurisprudence, 55 Ala. L. Rev. 327, 347-66 (2004)Google Scholar (describing methods for establishing damages such as those derived from pain and suffering, loss of chance of healthier life, and interference with due process).

38 Paretta, 195 Misc.2d at 577.

39 Jackson, Anthony, Action for Wrongful Life, Wrongful Pregnancy, and Wrongful Birth in the United States and England, 17 Loy. L.A. Int’l & Comp. L.J. 535, 543 (1995)Google Scholar (stating that some courts allow “recovery of medical expenses on the ground that it would be ‘illogical and anomalous to permit only parents, and not the child, to recover for the cost of the child's own medical care’”) (citation omitted).

40 See Pollard, supra note 37, at 346-47; see also Jackson, supra note 39, at 543.

41 See generally Pollard, supra note 37, at 331-42.

42 Id. at 338; see also Jackson, supra note 39, at 611 (stating that wrongful life claims “simply help[] those children who suffer from the severest and most distressing forms of disability to bear the burden of their unnecessary affliction … . An award to the children's parents in these circumstances does not take into account the child's own pain and suffering … [and] provides no guarantee of continued support for the child once she reaches majority and all parental responsibilities cease.”).