Elaine Rosenthal, as of the Estate of Martin C. Rosenthal, Deceased v. Kenneth W. Warren, and New England Baptist Hospital

OAKES, Circuit Judge:

This appeal in a diversity case raises the. question whether New York would apply a Massachusetts damage limitation to the death of a New York domiciliary occurring in Massachusetts. The appeal, taken before final judgment pursuant to 28 U.S.C. § 1.292(b), is from an order of the district court granting partial summary judgment in favor of the plaintiff in an action for wrongful death, 342 F. Supp. 246. The partial summary judgment struck the affirmative defense based upon the Massachusetts wrongful death statute limiting recoverable damages to “ . . . not less than five…