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For the first time in New Jersey, a trial judge has decided that same-sex partners registered under the Domestic Partnership Act can win damages for loss of consortium. Essex County Superior Court Judge James Rothschild Jr. ruled May 11 that the right to consortium, though not set forth in the 2004 statute, fits the legislative intent. There is nothing “to suggest that the Legislature did not support the recent liberalization of tort law which would extend to those people who are not married the right, in limited circumstances, to sue for loss of consortium, provided they can meet the other requirements for bringing such a suit,” Rothschild wrote in Buell v. Clara Maass, Esx-L-5144-03. Rothschild’s one proviso is that plaintiffs can only claim damages that occur after a couple registers under the act. Through April of this year, 3,114 New Jersey couples have so registered, according to the state Health Department. That means that Judith Peterson may include loss of consortium claim in her domestic partner Linda Henry’s sex harassment and whistleblower suit against Clara Maass hospital but only for damages after she and Henry registered last August. The decision recognizes the evolution in the law that allows, for example, bystander liability claims and child visitation rights for nonspouses. Rothschild noted that the domestic partner laws or legislative histories in Connecticut, Vermont and California include specific grants of consortium rights. But Rothschild cited no decisions like his in other states’ courts, and there aren’t any, says the plaintiffs’ lawyer, Clark Alpert of West Orange’s Alpert Goldberg Butler Norton & Peach. Defense lawyer Mark Blunda of Apruzzese McDermott Mastro & Murphy in Warren had argued for dismissal on grounds that the right to consortium wasn’t enumerated in the Domestic Partners Act. Rothschild said enumeration wasn’t necessary because the rights mentioned –freedom from discrimination, the rights to visit and make medical decisions for hospitalized partners, and equal tax treatment — are not exclusive. He said his decision followed the thinking in Dunphy v. Gregor, 136 N.J. 99 (1994), which allowed the fianc�e of an accident victim to pursue a claim for bystander emotional distress if she could prove their relationship was as interdependent as a marriage. Henry and Peterson have been financially and emotionally tied for nine years, a relationship that would meet the Supreme Court’s Dunphy standard, the judge wrote.

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