Document 2YevNBwdN3pGYm8pRa7d5VZr

THE NATION*- LAW JOURNAL Monday, July 18, 1988 Courts in such jurisdictions have THE PAST DECADE has Wit-1 historically declined to apply the dis nessed an explosion in product li covery rule to wrongful death claims ability lawsuits. That explosion because to do so would contradict the has caused, and in turn been fueled bye, xpress language of the local statute.' judicial action that has broadened the Recently, however, other courts, on remedies available to plaintiffs and policy grounds, have held , that a dis liberalized the procedures by which covery rule may be Invoked notwith such remedies may be obtained. ! standing the statutory language.1 In particular, dramatic develop According to those authorities, it is ments have occurred in interpreting "profoundly unfair" to create a remedy and applying statutes of limitations. for a plaintiff and then bar him or her The most significant development is ; from exercising it before there has the courts' use of a "discovery rule" to ! been any practical opportunity to do ascertain when a statute of limitations so.* begins to run. Guided by the principle that a plaintiff should be put on notice before his or her claim is barred by the passage of time, courts increasingly have held that limitations periods for product liability claims do not com mence until the plaintiff knew or rea sonably should have known of the existence of grounds for a complaint* Statutes of limitations governing wrongful death claims generally fall into one of two categories, based upon the event that triggers the running of the limitations period. In some juris dictions, the period begins to run from the time the claim "accrues" ("accrual On April 11, the Supreme Judicial Court of Massachusetts issued a deci sion that signals a return to the tradi tional approach. In John L. Pobieglo v. Monsanto Co^ the court, resolving a question certified to it by the federal district court in Massachusetts, held. Inter alia, that because the state Legis lature had specifically provided that wrongful death claims must be brought within a specified time, it would be inappropriate for the judicia ry to vitiate that legislative determina tion by permitting the application of a discovery rule.1 statutes")1; in others that period runs from the date of decedent's death (" `from death* statutes")1. In the case of accrual statutes, the determination of when the period be gins to run -- when the claim accrues -- is left to the courts by the legisla ture, and the courts are free to apply a discovery rule. When a discovery rule is applied, the cause of action is held to Mr. Kasowitz, a partner in New York's Rosenmar, A Colin, represented the Hoechst Celaneee Carp, in the Po- bieglo case. He wishes to express his appreciation to Scott T. Barber, a sum mer associate at Rosenman, for his as sistance in the preparation of this article. accrue when plaintiff first learned or had reason to know of the cause of the decedent's demise. By contrast, when the statute specifies that the limitation period begins to run from a particular date -- the date of the decedent's death -- the courts typically have held that they lack discretion to alter that date by permitting use of a discovery rule. CONTROVERSY has arisen con Acerning the application of wrongful death statutes of limi tations to product liability claims in jurisdictions with "from death" stat utes. In the typical scenario, an un timely wrongful death action is brought on behalf of a decedent whose personal representative claims that death resulted from an injury or dis ease suffered in the work place and that the alleged cause of death was not ( and could not have been discovered ! within the statutory period. BFG19210 22176001 PRODUCT LIABILITY LAW By Marc E. Kasowitz Massachusetts High Court Decision Rejects Liberal Limitations Rulings In the typical scenario, an untimely action is brought on behalf of a decedent whose personal representative claims that death resulted from a work-place injury whose cause was found outside the statutory period. In so holding, the court delineated a boundary beyond which courts should not venture in expanding remedies and procedures available to product liabili ty plaintiffs, in the absence of clear authorization from the Legislature The traditional cases hold that the "from death" language reflects a legis lative restriction that is not subject to judicial alteration or expansion. Illus trative of this approach is the decision of the 1st U.S. Circuit Court of Appeals in Cadieux v. International Telephone and Telegraph Corp.' The Cadieux court affirmed the dis missal of wrongful death claims brought on behalf of an electronics technician who had allegedly died as a result of exposure to X-rays and other sources of radiation, which exposure his representative did not learn of until after the two-year "from death" stat ute had expired. In holding that the discovery rule did not apply to Rhode Island's wrongful death act, the court stated: Although the result seems harsh in this case, we are convinced that the Rhode Island Supreme Court would not read the statute of limi tations as [the plaintiff] desires if the question were presented.. .The word "accrued" leaves room for ju dicial Interpretation and even inno vation as to when the last element of a common-law cause of action comes into being. The doctrine that suit must be brought within two years of death leaves no such room.* HE COURT ALSO REJECTED Tthe plaintiffs claim that Rhode Island's "from death" statute dis criminated against tort victims who die from their injuries. The plaintiffs argument was that because Rhode Is land permitted the discovery rule to determine when a cause of action ac crues in a non-death tort ease, the fail ure to do so in a death case discriminated unfairly against a per son who died from his or her injuries. The court disposed of this claim by stating that actions for personal inju ries brought by the injured party and actions for wrongful death brought by a surviving representative were differ ent, and that the Legislature had the authority to distinguish between them: The personal injury plaintiff of ten must recover from his injuries before he is able to bring suit. The uninjured personal representative has no such disability. The surviv ing tort victim may not know the extent of his injuries. The personal representative has no such prob lem. The community-disturbing event of death is likely to prompt immediate focus by third parties upon the cause thereof, thereby eliminating one possible delay in volved in assembling a personal injury case. Finally, both the BFG19211 ZmSLTZ?. 1 M survivor and the state have an in terest in prompt settlement of the affairs of the deceased. Thus, the state is justified in encouraging the personal representative to bring suit promptly. In short, reasonable grounds support the state's deci sion to treat the two causes of ac tion differently." The traditional approach adopted in Cadieux. and other cases holds that it is laws to a wrongful death claim brought on behalf of minors, even though there was no statutory basis for doing SO. The court reasoned that if a tolling provision could be Invoked to suspend the time within which a wrongful death action could be brought, it was equally appropriate to apply a discovery rule to ascertain when the cause of action accrued. the function of the legislature, not the courts, to establish the policy underly ing a wrongful death statute of limita tions, and that when the legislature has done so clearly and unambiguous ly, "the courts are without power to fashion a different rule." " Under this approach, if a discovery rule is to be engrafted onto a "from death" statute, it should be done by the legislature, not the judiciarv. - HE COURT ALSO based its hold Ting on notions of "fundamental fairness": [T]he discovery rule does apply to the death act because of the fun damental fairness of the rule and .. .because it is consistent with the purposes of the act. The legislature did not intend that the limitation period In the death act be interpret ed to reach unjust and absurd re THER CASES construing a sults. The same reasoning, founded O"from death" statute have ap on basic justice, that has led us to plied a discovery rule to ascer adopt the discovery rule generally tain when a plaintiffs wrongful deathis present in wrongful death ac claim accrues, notwithstanding the ex tions. It is profoundly unfair to de press direction in the statute that the prive a litigant of his right to bring limitations period runs from the date a lawsuit before he has had any of death. reasonable opportunity to do so. These cases hold that it is unfair to Further, if the discovery rule is deprive a litigant of his or her right to not applied to wrongful death ac bring a lawsuit before there has been tions, a tortfeasor whose conduct any reasonable opportunity to do so, and that it is particularly egregious to has been so grievous as to cause death would be exonerated, while do so in cases in which, if the defen {mother tortfeasor, guilty of the dant's alleged conduct had resulted in same conduct except for the fortu injury rather than death, the discovery rule would have applied. ity that it merely caused injury, would be held responsible.... Seeking to avoid dismissal of a We will not attribute an intent to wrongful death claim under the unam adopt such an irrational result to biguous language of the statute, these courts typically hold that death claims the legislature." Application of a discovery rule to a are of "common law origin," and that "from death" statute has most recently because the legislature is not the been addressed by the Massachusetts source of the plaintiffs right to recov Supreme Judicial Court in the Po- ery, such parties may possess greater bieglo case mentioned above. Pobieglo rights than those granted explicitly by was brought on behalf of an employee statute. in a chemical plant who allegedly died The decision of the Alaska Supreme as a result of exposure to a chemical Court in Hanebuth v. Bell Helicopter used at the plant The defendants, who International typifies this reasoning.1* The court applied a discovery rule to Alaska's wrongful death statute, which included the plaintiffs employer and its chemical suppliers, moved to dis miss the wrongful death claim because provided that such action should be it was brought more than two years commenced "within two years after after the limitations period -- three death." years from death -- had passed. The premise of the decision was that there was "no legislative intent to treat [an action for wrongful death] differ ently than the common law tort ac tion." '* The court relied for this proposition upon an earlier decision in which it had applied the general toll ing provisions of the Alaska general HE U.S. DISTRICT COURT for Tthe District of Massachusetts, af firming a magistrate's decision, denied the motion, holding that It was appropriate to apply a discovery rule to extend the time within which the wrongful death claim could be brought. Thereafter, the District Court recon sidered its decision and certified the issue to the Supreme Judicial Court The plaintiffs sought to rely on Gaudette v. Webb" which applied a tolling provision to extend the time within which a wrongful death claim could be asserted on behalf o: an infant by its legal representative. The plaintiffs argued that Gaudette stood for the proposition that the right to recovery for wrongful death was "of common law origin" and, therefore, that the statutory limitation on the time period was subject to modifica tion "in the interests of justice." Moreover, they claimed that there was no "principle of distinction" be tween modification of the wrongful death statute of limitations through a discovery rule and application of the minor tolling provisions covered in Gaudette. Further, they advanced sev eral arguments on public policy grounds, contending, inter alia, that it would be unjust to treat actions for wrongful death differently than per sonal injury actions, which were -sub ject to an accrual statute and had the benefit of a discovery rule. Central to the plaintiffs' position was their claim that in Massachusetts the right to recover for wrongful death was of common law origin. The plain tiffs contended that in jurisdictions es pousing that view, a discovery rule was uniformly applied notwithstand ing explicit statutory authority direct ing the limitations period to run "from death"; conversely, when the "common law origin" of wrongful death claims was not recognized, the "from death" statutes were strictly enforced." The Supreme Judicial Court rejected those arguments. It held, in a 5-2 vote. "Application of a rule which would de- Continued on following page V-- BFG19212 o Co Continued from preceding page. lay accrual until discovery would be In clear contravention of the legislative directive that the period of limitation run from the date of death.*"' The court stated that it was not nec essary to consider the "common law origins" of the wrongful death claim, because the language of the statute of limitations was plain on its face. "Only if the statute is ambiguous, or couched_ in terms that suggest that we do so, do we look beyond the express statutory language," it said." Further, the court ruled that non-death cases did not pro vide a useful precedent, because in those actions the limitations period ran not from a specified date, "death," but'from the date when the cause of action "accrued," thus permitting the court to use its discretion to invoke a discovery rule." The court further noted that al though it had applied a discovery rule to the accrual language in Massachu setts' non-death tort statute as early as 1974, the Massachusetts Legislature had amended the wrongful death stat ute of limitations at least twice since that time and had retained the. "from death" language, thus avoiding the "accrual" concept* Moreover, although the court con ceded that the statute might present a hardship by depriving certain plain tiffs of the right to enforce their wrong ful death claims, it held that it was the province of the legislature, not the courts, to rewrite the statute, if appro priate. "Arguments as to hardship .. .[are] appropriate respecting the en actment of legislation," it said. "They are not controlling in the interpreta tion of existing statutes." * Absent such legislation, the court said, it would be "inappropriate" for the courts to "vitiate that legislative determination" and apply a discovery rule to the plaintiffs' wrongful death claims.** As a condition of providing free ac cess to the courts, legislatures have en acted statutes of limitations to require that claims be asserted within speci fied periods, so that the courts and de fendants are not overwhelmed with stale claims. It is the manifest intent of the legislatures that the policy of free access to the courts is to be counterbal anced against the policy that claims be asserted in a timely fashion and that an untimely claim, however meritori ous, is to be barred. It has traditionally been the function ) Cadleus V. International Telephone A Tele- : graph Corp, 893 TM 142 (1st Clr. 1979); Stiles Union Carbide Corp. 820 F. Supp. *88, 888 (S. Tex. 1981); Anthony v. Hoppers Co. Inc, 494 Pa. . 11*. 124. 434 A3d 18X. 184 (1*41); Presslaff v. Rob- j Ins, 144 N-J. Soper. 543, 403 A2d S3*. *40 (1*7*). ) (S) Hanebluth v. Belt Helicopter International. I <94 PM 141 (Ala. 19S4); Myer* y. McDonald, 433 Fid 444 (Utah 1981); n*tm-- v. Cantor Bros. Inc, 887 F. Supp. 1347 (IU3. RL 1883); Matter of Johna-Manville Asbestos Cases. 311 F. Supp. 1238 (HD. 111. 1*81); 8haughneasy v. Spray, IS Or. App. 42. 837 P_2d 182 (1*81). (8) Hanebluth v. Bell Helicopter International, note 8 supra, 894 F2d at 147. (7) 402 Mass. 112, 821 NJ!L2d 728 (1888). (8) 898 FJd 142 (1st Cir. 1979). (9) Id. ai 144. (10) Id. at 143. (11) Stilea v. Union Carbide Corp, note 4 supra, 820 F. Supp. at 888. (12) Hanebluth v. Bell Helicopter IntemaUonal, note 8 mpra (13) Id. at 148. (14) Id. at 148-47. (19) 342 Mae*. 80 (1972). (10) Pobieglo, note 7 supra, 821 NJL2d at T30-3L (17) Id. at 731. (18) Id. (19) Id. (20) Id. (21) Id. (22) Id. (23) Id. (24) Id. . (28) Id. at 732. (28) Id. of the legislatures, not the courts, to HE COURT ALSO rejected the determine how the foregoing balance Tplaintiffs* reliance on Gavdette. should be struck. Some courts have re Contrary to the plaintiffs' asser cently tried to usurp that function, tion, it found "important distinctions"claiming that they must do so in order between a discovery rule and tolling to protect product liability plaintiffs statute.* The most significant distinction was with wrongful death claims from "il logical" and "absurd" results. Yet it is that whereas a discovery rule is a judi those courts themselves that have tak cial creation that relates to the time a en an untenable position by contradict claim accrues, tolling rules are creat ing the plain language of applicable ed by the legislature and relate to the wrongful death statutes. In Pobieglo, suspension of the limitations period af the Supreme Judicial Court of Massa ter accrual. Further, the court held chusetts has restored the view that if that the "common law origin" of changes in current legislation should wrongful death claims referred to in be made, it is up to the legislators, not Gaudette did not entitle the court to , the courts, to make them. disregard the express language of the K statute." (1) OlMH v. Bell Telephone Laboratories Inc, In Gavdette the Supreme Judicial Court had found a wrongful death claim to be of "common law origin" so that, once the statutory period expired, *88 Maas. 1T1 (IMS). (3) A typical accrual statute la contained in Wash. Her. Code Sec. 408-010. which provides that wrongful death actions "can only be commenced with the period herein prescribed after the cause <<n1 a a common law "right" would continue to exist, which could be tolled; but Gau dette held that the "procedure and re covery" specified in the wrongful of action shall have accrued." (Emphasis added.) (3) A typical "from death" statute is contained In Maas. Gen. L. c. 229. Sec. 2. which provides that wrongful death actions "shall be commenced within three years from the date of death..." BFG19213 death statute, including the limitations provisions,.had to be enforced strictly." The court also held that the Legisla ture was authorized to distinguish be tween wrongful death claimants and In Pobieglo, the court interpreted the discovery rules personal injury plaintiffs, and that such a distinction was not "illogical or as judicial creations that relate to the time of accru absurd." " but said tolling rules are the legislatures' and relate to suspension of the limitations period after accrual.