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Newark, N.J.-A state trial judge has opened the way for a test of whether domestic partners can sustain claims for loss of consortium, rights traditionally granted only to married couples. Judge James Rothschild Jr. of Essex County Superior Court ruled on April 23 that lawyers for four workers suing their employer could amend the complaint to include a loss-of-consortium claim by one of the plaintiff’s domestic partners. The plaintiffs’ lawyer, John Norton of West Orange, N.J.’s Alpert Goldberg Butler Norton Bearg & Peach, said the right to amend merely gets the issue before a court; it doesn’t prove the claim has merit. But he and his opponent have begun to research the question in preparation for eventual dismissal arguments. “It clearly is the next logical step,” Norton said. “These are domestic partners with financial and emotional interdependence, and they shouldn’t be left out in the cold.” Norton and lawyers outside the case say New Jersey precedents are against the notion of loss-of-consortium damages for anyone but spouses, but he is betting the issue is ripe due to emerging redefinitions of familial relationships, such as the newly adopted Domestic Partnership Act. Last year, New Mexico became the first state in which courts ruled that loss-of-companionship claims are not limited to married couples. The main plaintiffs in Buell v. Clara Maass Medical Center, No. Esx-L-5144-03, are four emergency medical technicians with a grab bag of whistleblower, hostile work environment and contractual claims against Clara Maass Medical Center in Belleville, N.J., a subsidiary of St. Barnabas Health Care System. Among the workers is Linda Henry of Fair Lawn, N.J., who, the complaint alleges, was humiliated, forced to work overtime and suspended because she complained of sexual harassment by a colleague. Last September, Henry suffered a heart attack attributable to stress caused by her employer, the suit claims. The April 13 amended complaint includes a claim by her domestic partner, Judith Peterson, that she “lost the consort, companionship, society, affection, services, and support of her partner.” The case has received some public attention because Somerset County Prosecutor Wayne Forrest confirmed that his office is investigating Esther Prikril of Old Bridge, N.J.-the colleague whose behavior the complaints mention-in the death of a patient in South Bound Brook, N.J. Norton concedes that loss-of-consortium claims are not allowed under the statutes the defendants allegedly violated, the state Law Against Discrimination and the Conscientious Employee Protection Act. But the suit also includes common law claims for which consortium would be allowed, such as tortious interference and intentional infliction of emotional distress, he said. Defense lawyer Mark Blunda, a partner at Liberty Corner, N.J.’s Apruzzese, McDermott, Mastro & Murphy, said he expects to seek summary dismissal of the loss-of-consortium claim, and his brief opposing the amendment gives an abbreviated preview of likely arguments. He pointed to long-standing precedents that restrict loss-of-consortium claims to married couples. In Childers v. Shannon, 444 A.2d 1141 (Cumberland Co., N.J., Super Ct. 1982), a ruling that has never been disturbed, a judge rejected a loss-of-consortium claim in a case of cohabitation of opposite-sex partners and said that only the Legislature could grant such rights. Blunda also cited a decision by U.S. District Judge Mitchell Cohen, who wrote in Schroeder v. Boeing, 712 F. Supp. 39 (D.N.J. 1989), that he had researched the issue extensively and had come to the conclusion that “an action for loss of consortium cannot be maintained unless the plaintiff was married to injured person at the time of actionable conduct.” Blunda said in an interview last week, “The case law has been quite clear that you must be married to recover loss-of-consortium damages. We’re representing our client under existing law and our view is that the plaintiffs want to change the law. That’s for the Legislature.”

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