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An Essex County, N.J., 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. Superior Court Judge James Rothschild Jr. 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 plaintiffs’ domestic partners. The plaintiffs’ lawyer, John Norton of Alpert Goldberg Butler Norton Bearg & Peach, says 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 says. “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 whose courts ruled that loss of companionship claims are not limited to married couples. The main plaintiffs in Buell v. Clara Maass Medical Center, 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, a subsidiary of St. Barnabas Health Care System. Among the workers is Linda Henry of Fair Lawn, who the complaint alleges was humiliated, forced to work overtime and suspended because she complained of sexual harassment and misdeeds by a colleague. Last September, Henry suffered a heart attack attributable to stress caused by her employer, the suit says. 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 notoriety because Somerset County Prosecutor Wayne Forrest confirmed that his office is investigating Esther Prikril of Old Bridge — the colleague whose behavior the complaints mention — in the death of a patient in South Bound Brook. 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 says. Defense lawyer Mark Blunda, a partner in Liberty Corner’s Apruzzese, McDermott, Mastro & Murphy, says 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 longstanding precedents that restrict loss of consortium claims to married couples. In Childers v. Shannon, 183 N.J. Super. 591 (Law Div. 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 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 (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, “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.” But by Norton’s reckoning, the Legislature has already spoken by enacting the Domestic Partnership Act, which recognizes same-sex unions and grants such partners rights and benefits. The right to recovery for loss of consortium isn’t one of them, but it has changed the climate, his brief suggests. Peterson and Henry have filed an Affidavit of Domestic Partnership, which gives them official recognition under the new law, which goes into effect in July. The suit also says defendant Clara Maass recognized “the parallels of spousal relationship with domestic partnership” by giving Peterson benefits. “In fact, this policy was a strong factor in Henry’s decision to seek employment with Clara Maass in March, 2001,” the brief says. NO SOLACE IN STATUTE Lawyers familiar with the Domestic Partnership Act say, however, that there’s nothing in the statute the plaintiffs can cite to elevate domestic partnering to the status of marriage for the type of common law rights sought by Peterson. Lisa Manshel of Millburn’s Francis & Manshel, who represents plaintiffs in employment cases, and Erika Roth, an associate at Newark’s St. John & Wayne who represents corporations, say the Domestic Partnership Act provides no solace for the plaintiffs. Both lawyers have lectured on the meaning of the act. “The Domestic Partnership Act does not grant any rights other than those enumerated in the statute and does not grant consortium claims,” Manshel says. “It doesn’t help and it doesn’t hurt.” In addition, there is evidence that the atmosphere of change heightened by the act may not be good enough to effect changes in the law. In a sexual harassment case in February, for example, a Union County judge rejected arguments that the privilege allowing married couples to decline to testify against each other should be extended to the same-sex, financially interdependent partner of the plaintiff. The state Supreme Court declined certification. Changes in the common law appear to give Norton and his clients a better shot. In an auto accident case last June, Lozoya v. Sanchez, 66 P.3d 948 (N.M. 2003), the New Mexico Supreme Court ruled that a claim for loss of consortium is not limited to married partners, but may be asserted by unmarried cohabitants who can prove an intimate familial relationship with the victim. Whether such a relationship exists is a jury question, the Court said. In reaching the conclusion, the New Mexico justices relied extensively on a New Jersey Supreme Court ruling, in a so-called bystander liability case, that unmarried cohabitants with intimate familial relationships can bring a claim for negligent infliction of emotional distress. Citing that New Jersey case, Dunphy v. Gregor, 136 N.J. 99 (1994), Norton says in his brief: “Here, Henry and Peterson reside in the same household, share day to day experiences together, rely on the comfort and support from each other, and depend on one another in all of life’s tribulations. Thus, clearly they share an intimate familial relationship under Dunphy and Lozoya,” he wrote. William Vosper Jr., a Stillwater solo who represented the successful plaintiff in Dunphy, says the mental anguish, not so much the legal relationship, seemed to be the central issue to the Supreme Court. “I guess a domestic partner would be a close familial relationship.” Vosper knows, though, how difficult such leaps can be. He says he once filed a loss of consortium claim on behalf of victim’s common law spouse and a judge in Morristown threw it out. E. Drew Britcher of Glen Rock’s Britcher Leone & Roth, who filed an amicus brief in Dunphy for the Association of Trial Lawyers of America-New Jersey, says he has long believed the law on per quod claims is ripe for expansion because it is a common law question, as opposed to wrongful death law, which is statutory. “A court looking at it could determine that loss of consortium claims for domestic partners makes logical sense.” And in doing so the judge wouldn’t have to change any statutes, he says. Ironically, a leading lawyer for Lambda Legal, a national organization that litigates on behalf of lesbians, gays and bisexuals, suggests that a struggle for consortium rights pegged to domestic partnership is a side show to a more important effort to bring about marriage rights for same-sex couples. Lambda senior staff attorney David Buckle, citing suits in New Jersey and a half-dozen other states to get courts to recognize same-sex marriages, says the goal is to get “liberty in all respects.” “I don’t mean to diminish the loss of consortium issue with an unmarried gay couple,” he says. “That can be a serious matter.” But he adds, “there are a whole range of questions that are answered with one single word, ‘marriage’ that are not answered with the two-word phrase “domestic partnership.” In the meantime, he says, “there’s going to be a lot of uncertainty.”

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