"The statute of limitations is a very real thing in this country," former President and Republican presidential front-runner Donald Trump told reporters Monday at the New York court where he faces civil fraud claims.
I say the same thing to my 1L class every fall. Finally, some authority to back me up.
Though I can't help but think that the former President is thinking of the E. Jean Carroll matter. Carroll filed her defamation and battery claims against the former President under New York's Adult Survivors Act (ASA). The act temporarily suspended the statute of limitations for civil claims arising from alleged sexual abuse, allowing a year-long "look-back window." Carroll filed on the day the act took effect.
The ASA opened look-back to all of a complainant's adult life. The window will close on November 23, 2023. In 2019, New York extended the statute of limitations for adult survivor claims
from three to 20 years, but the extension is not retroactive. The N.Y. Law Journal reported 67 ASA lawsuits filed by February 2023; according to Katz Banks Kumin, citing The Wall Street Journal, 106 suits had been filed by May 2023. Though in April 2023, The Appeal reported "nearly 1,000" claims under the ASA by incarcerated or formerly incarcerated women against corrections officers.
The ASA was enacted as a political response to the #MeToo movement and a pointed plank in the platform of New York's first female governor, Kathy Hochul. The ASA was modeled on the New York Child Victims Act of 2019, which was in significant part a response to abuse in the Catholic Church.
The Child Victims Act similarly extended the New York limitations period for child survivors' civil claims to a victim's age 55 and opened a look-back window, one year later extended to two, that expired in 2021. That allowance saw "almost 11,000 cases," according to the N.Y. Law Journal. Jeff Anderson has details and data. Child USA tracks such laws across the country.
When a statute of limitations precluded smokers' suits against tobacco makers, the smokers' families also could not sue in wrongful death after the smokers died, the Massachusetts Supreme Judicial Court ruled in July.
It's harder nowadays, than it once was late in the last century, for smokers to sue Big Tobacco for the health consequences of smoking. In accordance with the peculiar lifecycle of many product liability theories, tobacco makers have acquired strong defenses against smokers who persist despite now well known risks. There are occasional plaintiff wins, still. But over time, fewer cases can pass muster by proving recent manifestation of injury incurred long ago.
In one strategy to circumvent the natural expiration of product liability exposure, Massachusetts plaintiffs, whose family members succumbed to smoking-related illnesses, theorized that wrongful death in commonwealth statute is a cause of action independent of the decedent's causes for personal injury. In this theory, the wrongful death action comes into being only upon the death of the decedent and might resist defenses that would have defeated the decedents' own personal injury claims—namely, the statute of limitations.
In the consolidated Fabiano v. Philip Morris USA Inc. and Fuller v. R.J. Reynolds Tobacco Co., the plaintiffs alleged negligence and breach of warranty pursuant to the wrongful death statute, even while they did not dispute that the smoker-decedents, plaintiffs' family members, could not have sued in personal injury at the time of death because of the expiry of the limitations period for those actions. Accordingly, there also could be no survival claims in the names of the decedents.
The court rejected the plaintiffs' theory, affirming the judgment of the courts below in favor of the defendants. Even though it has its own statute of limitations, wrongful death was nonetheless intended by the legislature to be a derivative cause of action, the court opined. The cause vests in family only if the decedent has a viable cause at the time of death.
The court had said as much before as to personal injury actions, so affirmed that rule, and moreover held that plaintiffs in Fabiano and Fuller failed to distinguish breach of warranty claims. All of the family's liability theories are constrained by the wrongful death statute, and so by its limitations.
The court acknowledged that not every state agrees. Colorado and West Virginia seem to regard the wrongful death action as an independent statutory action. But they are out of step with the "overwhelming majority" rule in the states, the court observed.
In teaching torts, I prefer to describe wrongful death claims as "parasitic," rather than "derivative." The concepts are not co-extensive, but both terms capture the notion of dependency on the underlying personal injury claim. I admit, I had never considered the plaintiffs' theory and did not know about the Colorado and West Virginia approach.
There is a logic to the minority rule. A wrongful death claim means to compensate "parasitic plaintiffs" for their losses, not the losses of the decedent. The wrongful death plaintiff thus does not incur injury until the time of death. At the same time, the policy of the statute of limitations attached to the decedent's claim, which statute protects defendants against excessive liability exposure, is somewhat undermined by tacking on the enduring potential of a recovery upon death at an indefinite later time.
Justice David A. Lowy wrote the court's unanimous opinion in Fabiano and Fuller, No. SJC-13282 & No. SJC-13346 (Mass. July 6, 2023) (FindLaw).
The Massachusetts three-year statute of limitations rather than a foreign one-year statute of limitations permitted wrongful death suits in the tragic case of two medical students killed while studying abroad, a trial court ruled in March.
Plaintiffs' decedents were students from New Jersey and California studying at the Medical University of the Americas (MUA) on the island of Nevis, in the Federation of St. Christopher (Kitts) and Nevis, in the West Indies. MUA is a nonprofit based in Devens, Massachusetts.
The women suffered fatal burns in their MUA dormitory when a gas cooking stove connected to an external propane tank exploded. Plaintiffs sued MUA two years later in negligence, alleging failure to inspect and maintain the stove and gas piping.
The defendant sought dismissal under the one-year statute of limitation in Nevis law. The plaintiffs contended that the more generous three-year limitations period in Massachusetts pertained.
The Superior Court in Worcester, Mass., explained the choice-of-law analysis, relying on Commonwealth high court precedent and the Restatement (Second) of Conflict of Laws:
Massachusetts applies a functional approach in determining the statute of limitations when a choice of law question arises.... Generally, Massachusetts "will apply its own statute of limitations permitting the claim unless: (a) maintenance of the claim would serve no substantial interest of the forum; and (b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence." .... "Stated in affirmative terms, a forum should apply its own statute of limitations permitting the claim if it would advance a substantial forum interest and would not seriously impinge upon the interests of other states." .... The focus of this choice of law analysis is on the timeliness of the action, rather than the underlying claim.
The court reasoned that oversight of the dorm was a function of the defendant's management in and directives from Massachusetts. And Nevis's interest was less than Massachusetts's when it is a Massachusetts defendant that faces liability.
The defendant also sought dismissal for forum non conveniens, and the court decided that the question is premature.
The case is Balasanyan v. R3 Education Inc., No. 2085CV01052 (Mass. Super. Ct. Mar. 29, 2022), Justice David M. Hodge presiding.
A Massachusetts medical malpractice case in March reminds law students and lawyers that a statute of repose can be as threatening to a cause of action as a statute of limitations, and furthermore that the statute of repose burdens patients with diligently investigating persistent suffering.
Actions of contract or tort for malpractice, error or mistake against
physicians, surgeons, dentists, optometrists, hospitals and sanitoria
shall be commenced only within three years after the cause of action
accrues, but in no event shall any such action be commenced more than
seven years after occurrence of the act or omission which is the alleged
cause of the injury upon which such action is based except where the
action is based upon the leaving of a foreign object in the body.
The plaintiff suffered from multiple sclerosis, which was misdiagnosed in 2011. The results of an MRI indicating MS were never communicated to the plaintiff, almost certainly negligence. But it was more than seven years before the diagnosis was corrected.
The plaintiff tried to predicate her claim on subsequent instances of treatment by the defendant doctors. The court was not receptive. "Even if we generously read the complaint to have alleged separate acts of negligence, that reading would nonetheless be eclipsed by the fact that the 'definitely established event' of the MRI occurred nearly eight years before the complaint was filed," the court opined. A "continuing treatment exception" "would vitiate the statute of repose."
The case is Moran v. Benson, No. 21-P-352 (Mass. App. Ct. Mar. 1, 2022). Justice William J. Meade wrote the opinion of the unanimous panel.
Lanier's story in a 2020 short by Connecticut Public
This morning the Massachusetts Supreme Judicial Court heard oral arguments in the case of Lanier v. Harvard, in which Tamara Lanier seeks to recover daguerreotypes of her enslaved ancestors, father and daughter Renty and Delia Taylor, taken on a South Carolina plantation in 1850.
The case is mostly about property and procedural law, namely, replevin and laches, though counsel for Lanier described the initial possession of the images as tortious conversion. The images were taken and "used by the Harvard biologist Louis Agassiz to formulate his now-discredited ideas about racial difference, known as polygenism," the Center for Art Law explained. "Renty and Delia were photographed naked to the waist from the front, side and back without their consent or compensation."
Harvard's position depends on a narrow view of the case as a simple question of property ownership. As the saying goes, "possession is nine tenths of the law." Harvard bolsters its position with the argument that has become familiar from museums in our age in which returning artifacts to the once colonized, developing world is increasingly common, that the public will benefit from, and the horrors of slavery will be exposed by, public presentation of the daguerreotypes in a scholarly context.
The Lanier family articulates a broader theory of the case. Civil rights attorney Ben Crump compared the sought-after return of the daguerreotypes to return of the possessions of Japanese families after World War II internment and Jewish families after the Holocaust, the latter including The Woman in Gold.
The Lanier side divided its argument between two attorneys. Crump opened the second half with a powerful statement of what he described as "three historical references" to frame the case from the Lanier perspective. First, he said:
The fact that I stand before you as a free man and not a slave is a testament to someone's decision to change the course of human history. It is a testament to our legal system, a testament that was led by the courts here in Massachusetts when Chief Justice William Cushing in 1783 judicially abolished slavery in the Quock Walker case. And it is the reason why he is so often quoted even 250 years later with ... the idea of slavery as inconsistent with our conduct and our Constitution.
Second, Crump paraphrased Frederick Douglass, that
the genealogical trees of black people do not flourish as a result of slavery. In essence what he was saying is that what slavery did was destroy the African-American family connection to its ancestral lineage. But this historical case has the ability not only to recognize such lineage but [to recognize such lineage in] Ms. Linear and her family.
Third, Crump said:
This case presents a case study of Massachusetts's complicated history with slavery. On one hand it has profited mightily from the cotton trade. Its most powerful institution, Harvard University, has ties with slavery that date back centuries. In fact the textile factories that were the largest donors of the university helped to build capitalistic empires on the backs of slave empires. In fact the institution of Harvard and the institution of slavery were born in this country a mere 17 years apart. On the other hand, Massachusetts is also the home of John Adams, and it is not lost on me or Ms. Lanier that we are in the John Adams Courthouse. John Adams said slavery is the great and foul stain upon the North American Union.
Justices Kafker, Wendlandt, and Cypher actively and almost exclusively interrogated the advocates. Based on the colloquy, the smart money in the case is on Lanier. Kafker and Wendlandt tied up Harvard advocate Anton Metlitsky mostly in civil procedure. The justices seemed to be testing out how they might navigate procedural challenges to reach a ruling in Lanier's favor.
The justices did challenge Crump and co-counsel Joshua Koskoff on First Amendment issues. In an amicus brief in the case, the Massachusetts Newspaper Publishers Association warned against a ruling that would give the subjects of photos an ownership interest in the images, for fear that First Amendment-protected news coverage would be jeopardized. It's interesting to see that concern raised in this context, because the point also marks division between the United States and Europe over data privacy rights in photographs of persons in public places.
The probing revealed that counsel for Lanier would render the case large or small, depending on their needs. Taming the case back to mere property dispute, Koskoff called "First Amendment implications" in the case "a strawman." The First Amendment is not implicated in a case of conversion, he argued, any more than the Second Amendment is implicated when someone is shot and killed.
Justice Kafker challenged Koskoff on whether return of the pictures would make them inaccessible to scholars and, as Harvard contends, thus unable to educate the public in the way that Holocaust images have. Koskoff stuck to his guns, responding that it was up to Renty and Delia, and thus up to the Lanier family, whether the images would be used for public education. The ends don't justify the means, he said.
In a related vein, Justice Wendlandt questioned Crump whether the outcome would be the same if the images had been discovered "in a drawer of the Boston Globe." Crump ducked the question. "This was a scientific experiment with black people being used as lab rats," he responded potently but inappositely, a "crime against humanity" and a crime under Massachusetts law.
Wendlandt reiterated her question, and still Crump ducked it, arguing that the hypothetical was not the facts of the case. Wendlandt then restated Crump's response back to him as a "yes," that it makes no difference who claims ownership of the daguerreotypes today. Crump picked up the thread, arguing analogy to the removal of The Woman in Gold from public display in Austria.
"This court has the ability to finally free Renty and Delia from bondage," Crump concluded. "We are beseeching this court not to condemn them in death to the property of Harvard for all eternity."
The case is Lanier v. President and Fellows of Harvard College, No. SJC-13138 (argued Nov. 1, 2021). Briefs are posted on the docket. The oral argument will be posted at the Suffolk Law archive. The Harvard Crimson published a thorough piece on the case in March. A retired probation officer in Connecticut, Tamara Lanier tells her story at the website of the "Harvard Coalition to Free Renty"; there also is a documentary film by David Grubin.
[UPDATE, Nov. 3:]
The oral argument is now posted in the Suffolk archive. Also, Tamara Lanier posted a 15-minute clip of Crump's argument on her YouTube page today (below).
I add that Crump's argument, while quotable, was not as substantively important as Koskoff's. I rewatched the oral argument today. It remains clear to me that the justices, at least those who participated in the colloquy, are searching for a way to have Lanier win, but are struggling to find a legal rationale that matches the policy rationale.
In a telling exchange out of the gate, the justices pressed Koskoff for a rationale to convert his theory of tortious conversion in 1850, a premise the justices seemed willing to accept, into a property right in 2021. Koskoff responded by describing tort law as an umbrella and property law within it, reasoning that a tortfeasor is not allowed to keep the proceeds of a tort.
I find the reasoning sound, notwithstanding the doctrine of laches, but I'm not sure the semantics and metaphor were quite right. I have never understood tort law to dictate the outcome Koskoff describes; rather, I regard the proceeds of a tort as forfeit in equity. Well recognizing how easy it is to Monday morning quarterback, I wonder that Koskoff might have prepared a better argument grounded in equity rather than tort law.
Anyway, it will take some legal gymnastics for the court to reach the result that at least three justices seemed to desire.
Immersed in grading perdition in recent weeks, I fell behind in my
usually steady diet of popular culture. Better late than never, I offer, here and in two subsequent posts, for your amazement and amusement, an overdue eclectic assortment
of three savory news pickins.
Back in January, remember January? Capitol Riot, Inauguration, that one,
the Rhode Island Supreme Court held that the state's 10-year statute of
repose and three-year statute of limitations on tort actions for latent
defects in real property apply to homeowners who purchased from the
builder. The plaintiff-homeowners purchased their lakefront home in
northwestern Rhode Island from the builder in 1997, and they discovered
extensive water damage to the lake-facing wall of the house in 2012.
They attributed the damage to improper workmanship and materials.
Because they purchased from the builder, the plaintiffs tried to escape
the statute of repose by characterizing their action for breach of
implied warranty of habitability as sounding in contract law rather than
tort law. The court disagreed, deciding that the design of the law was
to limit builder liability, regardless of whether the plaintiff was an
original or subsequent purchaser. The case is Mondoux v. Vanghel,
No. 2018-219-Appeal (R.I. Jan. 27, 2021). Hat tip to Nicole Benjamin
and Crystal Peralta of Adler Pollock & Sheehan, via the Appellate Law Blogat JD Supra.
Author of Too Much and Never Enough(2020),
Mary L. Trump on Thursday sued her uncle, the President, and her aunt, retired
federal judge Maryanne Trump Barry, for ongoing fraud and breach of
fiduciary duty in oversight of the estate of Mary's father,
Fred Trump, Jr., since his death in 1981.
The case comes just two
months after a failed bid by presidential brother Robert S. Trump to
enjoin publication of Mary's book, and one month after Mary's release of audio recordings in which her aunt condemned the President. Considering the First Amendment and
the futility of last-minute injunction, the court in the earlier case
refused to enforce the confidentiality provisions of a family agreement
that settled litigation arising from the deaths of Robert, Maryanne, and the President's
parents, Mary's grandparents, Fred and Mary Anne, in 1999 and 2000. Robert S. Trump died on
August 15, 2020. Try to keep up.
To navigate the statute of limitations, Mary Trump alleges that she only became aware of the fraud upon the publication of investigative journalism by The New York Times in 2018 (pay wall; about). Links to the dockets, the complaint in the latest Mary L. Trump case, and the court decision denying injunction in the Robert S. Trump case are now posted at the Trump Litigation Seminar blogsite, a project of The Savory Tort. HT @ TLS students Spencer K. Schneider and Richard Grace.
The Massachusetts Appeals Court today opined that the "single publication rule" of American libel law causes the statute of limitations period for a defamation claim to start running on the day that a news outlet posts the contested content online.
In American libel law, the single publication rule means that a plaintiff may sue only upon the first publication of allegedly defamatory content. The content may thereafter be distributed through other publications and other media, amplifying the injury to the plaintiff. That amplification can count toward damages if the plaintiff prevails. But there may be only one cause of action for defamation, and the clock for the statute of limitations, the time within which the plaintiff must bring suit, starts running from the time of first publication. The rule is said to serve interests of both judicial efficiency and fairness to defendants.
A newspaper is printed in 2013 on an 18th-century press in Colonial Williamsburg. (Maggie McCainCC BY 2.0)
There are exceptions to the single publication rule, namely when content is republished to a substantially different audience or is substantially altered and then republished. The lines drawn by these exceptions became fuzzier in the internet age, because the internet can be characterized as a sort of ongoing "republisher," such that content is published anew with every user download. Some plaintiffs were able to chart exception to the single publication rule by asserting alteration in the creation of online archives of dated print material, an issue that reverberates in the debate over the right to erasure, or "right to be forgotten."
The norm that emerged in the digital age in the United States is that the first posting of content online counts as the time of first publication. In a decision today, the Massachusetts Appeals Court followed that norm.
The plaintiff, Wolsfelt, sued defendant Gloucester Daily Times for its coverage of reported incidents of domestic violence. In each of two incidents, Wolsfelt was arrested. After the first incident, in November 2011, the Times published online a story that, according to the Court, "largely tracked the police report." When in February 2012 the criminal court "entered a 'general continuance' with a 'no abuse' order," the Times updated the story online to report "assault and battery charges ... continued without a finding."
After the second incident in June 2012, the Times again published online a story that "largely tracked the police report." When in February 2013 the criminal court entered "a continuance without a finding" in that case, the Times updated the story online to report a "charge of assault and battery ... continued without a finding for 18 months." Charges were dismissed in 2012 and 2014, respectively.
In a defamation complaint in February 2015, the plaintiff "asserted that the articles contained 'untrue, incomplete, misleading[,] and damaging assertions,' resulting in harm that included loss of reputation and potential employment." But the complaint was not filed until more than three years after the first article, its update, and the second article. The complaint was filed just under three years, the statute of limitations in Massachusetts, from the publication of the second update. The plaintiff said he learned about the articles only upon applying for employment in February 2013.
The Court affirmed rejection of the complaint insofar as it was predicated on the first three publications, because the statutory limitations periods on those pieces had run. Analyzing the second update alone, the Court ruled that it was protected by the fair report privilege, a common law affirmative defense to defamation that protects reporting on public records even if the public records themselves, and therefore reports about them, might contain defamatory falsehoods. The court's decision is consistent with the single publication rule as applied to the internet by courts in other states.
The single publication rule at one time marked an important difference between common law defamation in the United States and defamation law elsewhere in the world, notably the United Kingdom and other common law jurisdictions. The lack of a single publication rule in other countries exaggerated the problem of "libel tourism," the phenomenon of plaintiffs shopping for forums friendlier than the United States in which to sue for defamation.
However, adaptation of defamation to the internet, with its unprecedented capacity for republication, created far more headaches in legal systems without the single publication rule than in the United States. Without the rule to draw the limitations period to a close, causes of action based on web publication seem potentially endless. Accordingly, the single publication rule has gained traction as a U.S. export. The rule was adopted in the U.K.'s major statutory overhaul of defamation in 2013. And the rule has been a point of proposal in Australia's ongoing defamation reform. The single publication rule became law in New South Wales in July (Lexology).
The case is Wolsfelt v. Gloucester Times, No. 19-P-936 (Mass. App. Ct. Sept. 1, 2020). Justice Dalila Wendlandt wrote for a panel that also comprised Justices Singh and McDonough.
A narrow decision from the Massachusetts Supreme Judicial Court (SJC) today is important for keeping alive plaintiff personal injury claims based on road defect injuries, especially amid the trending privatization of public services. The opinion stops off in Boston history en route to its conclusion. The case is Meyer v. Veolia Energy North America, No. SJC-12606 (Mass. May 8, 2019).
Reversing summary judgment for defendant Veolia Energy North America, the SJC concluded that the statutory requirement of notice within 30 days to a potential defendant alleged to be responsible for road conditions giving rise to injury applies to the governmental defendants, but not to private-sector defendants.
Plaintiff Meyer was injured when on his bicycle, on Sudbury Street in Boston, he "struck a circular utility cover one foot or less in diameter that was misaligned with the road surface." He gave notice to the City of Boston of a potential tort claim within 30 days. But the city denied his claim on day 31, referring Meyer to private-sector Veolia as the party responsible for the utility cover. Upon purportedly late notice to Veolia under the statute, the lower court awarded summary judgment to the energy company. The SJC reversed, holding the statute inapplicable.
Most of the 32-page decision concerns statutory interpretation and is worth a read if that's your jam. A couple of points stood out for me, though, as a general observer of law American-style. The relevant Massachusetts statutes are found in General Laws chapter 84. The SJC observed that section 1 "reflects its origins in the preindustrial era." Indeed, the section states, "Highways and town ways, including railroad crossings ... shall be kept in repair at the expense of the town ... so that they may be reasonably safe and convenient for travelers, with their horses, teams, vehicles and carriages at all seasons."
The SJC traced interpretation of the relevant statutes to an 1883 opinion by Justice Holmes. Yes, that Justice Holmes, the Honorable Oliver Wendell Holmes, Jr., when he served on the Massachusetts high court. Explained today's SJC, Justice Holmes for the Court, in in Fisher v. Cushing, 134 Mass. 374 (1883) (electronic page 376 of this free ebook), had
interpreted the road defect and notice statutes, and the meaning of the reference to "persons," in the course of reviewing the statutes' legislative and legal history. As a noted scholar of legal history and the author of The Common Law (1881), Justice Holmes brought special knowledge and expertise to this interpretation. The defendant in Fisher was sued for negligently maintaining a coal hole on a Boston sidewalk.
Held the Court in Fisher, "The whole scope of that [statutory notice] scheme shows that it is directed to the general public duty [to keep the way in repair], and that it has no reference to the common law liability for a nuisance." Explained today's SJC,
The court therefore held that the defendants could be sued in tort for the nuisance they created with their coal hole.
The court also went on to explain the meaning of "persons": "The mention of 'persons' in the statute, alongside of counties and towns obliged to repair, is easily explained. The outline of our scheme was of ancient date and English origin. In England, while parishes were generally bound to repair highways and bridges, a person might be, ratione tenurae, or otherwise .... [W]e cannot say, and probably the Legislature of 1786 could not have said, that there were no cases in the Commonwealth where persons other than counties or towns were bound to keep highways in repair.... Even if there were not, it was a natural precaution to use the words.
Footnotes elucidated, "A coal hole was an underground vault covered by a hatch with a cover where coal used for heating purposes was kept for easy access" (citing S.P. Adams, Home Fires: How Americans Kept Warm in the Nineteenth Century 105-106 (2014)). And "'[r]atione tenurae' is a Latin phrase meaning by reason of tenure," as in being an occupier of land (citing Black's Law Dictionary 1454 (10th ed. 2014)).
I'm assuming that when the Court wrote that the late, great Justice Holmes "brought special knowledge and expertise" to the case, that assertion was strictly a function of the preceding clause, "as a noted scholar of legal history and [common law]," and not, as my mind hastened to wonder, because Justice Holmes had some particular tenura with coal holes.
Answering a certified question from the federal district court, the Massachusetts Supreme Judicial Court (SJC) held unanimously today that a state statute of repose for personal injury claims bars a mesothelioma negligence suit against General Electric (GE) in the case of a former nuclear-plant construction worker exposed to asbestos. The case is Stearns v. Metropolitan Life Insurance Co., No. SJC-12544 (Mass. Mar. 1, 2019) (PDF), certified by No. 1:15-cv-13490-RWZ (D. Mass. May 14, 2018).
Whereas the time limit of a statute of limitations runs from the time a would-be plaintiff becomes or should become aware that he or she has suffered an injury, a statute of repose sets a hard deadline contingent on an objectively verifiable event, irrespective of the plaintiff's experience. Massachusetts law has a statute of repose, Mass. Gen. L. ch. 260, § 2B, that is generous to the construction industry, relative to other states' laws. When personal injury arises from improvement to real property, tort claims are barred six years after the improvement is opened to use.
Brockton, Mass., native Wayne F. Oliver worked as a pipe inspector for a contractor of GE on the installation of turbine generators at the Pilgrim Nuclear Station at Plymouth, Massachusetts, and at the Calvert Cliffs Nuclear Power Plant in Maryland in the 1970s. Installation specifications called for the use of asbestos insulation, to which Oliver was exposed over the course of years. In April 2015, Oliver was diagnosed with mesothelioma, a known health consequence of asbestos exposure, and in July 2016, at age 67, he died.
Plaintiffs in some toxin claims have trouble navigating statutes of limitations, because litigants dispute when an ill plaintiff should have realized that the illness was consequent to exposure. Suing and non-natural causation are not necessarily the first thoughts of a patient diagnosed with cancer. But mesothelioma victims often surmount statutes of limitations hurdles, because the disease has a long latency period, and then, as in Oliver's case, manifests onset and death in short order. Statutes of repose then become problematic in cases arising from construction exposures.
Piping in turbine building at Russian nuclear power plant, 1986
(RIA Novosti archive, image #447414, by Petrouhyn, CC-BY-SA 3.0).
The SJC in Stearns recognized the well accepted proposition that statutes of repose may work a corrective injustice against injured plaintiffs, especially in case of diseases with long latency periods. But the greater policy aim of statutes of repose is to time-limit liability for commercial actors, lest productive development become unaffordable for fear of perpetual liability exposure.
Contingent on objectively verifiable events, statutes of repose tend to be unforgiving of lapses in time. The SJC observed that various statutes of repose in Massachusetts have not yielded in prior cases, even upon a defendant's intentional wrongdoing or fraudulent concealment of danger, or a victim's mental illness or ongoing medical treatment. The statute of repose for medical malpractice contains an exception in the event of a foreign object left in a person's body, so, the SJC reasoned, the legislature knows how to make an exception when it wants to. The statute of repose in construction is "ironclad."
Associate Justice Cypher
In a footnote, the court added:
The plaintiffs point out that a number of other State Legislatures have effectively exempted asbestos-related illnesses from their respective statutes of repose concerning improvements to real property. We encourage our Legislature to consider doing the same should it determine that such an exception is consonant with the Commonwealth's public policy.
The opinion in Stearns was authored by SJC Associate Justice Elspeth B. Cypher, a Pittsburgh native. In the fall 2019 semester at UMass Law School, Justice Cypher is scheduled tentatively to co-teach, with former dean Robert V. Ward, Jr., Race, Women’s Rights, Gender Identity and the Law.
Yesterday the Massachusetts Supreme Judicial Court (SJC) held that a statute of repose bars a claim under the Commonwealth's key consumer protection statute, chapter 93A. The case examines the oddly "contort" (contracts-torts) role of 93A and occasions a majority-dissent dispute over judicial construction of statute vs. "usurpation of ... legislative prerogative," i.e., corrective justice vs. distributive justice.
Chapter 93A is important in Massachusetts tort law because it is drawn much more broadly than the usual state consumer protection statute. In a Massachusetts tort case, chapter 93A often provides a parallel avenue for relief and can afford a plaintiff double or treble damages, as well as fee shifting. That makes it a powerful accountability tool in areas such as product liability, well beyond the usual consumer protection fare in trade practices.
The SJC, per Justice Cypher, published a sound primer on statutes of limitation and repose:
Statutes of repose and statutes of limitations are different kinds of limitations on actions. A statute of limitations specifies the time limit for commencing an action after the cause of action has accrued, but a statute of repose is an absolute limitation which prevents a cause of action from accruing after a certain period which begins to run upon occurrence of a specified event.... A statute of repose eliminates a cause of action at a specified time, regardless of whether an injury has occurred or a cause of action has accrued as of that date.... Statutes of limitations have been described as a "procedural defense" to a legal claim, whereas statutes of repose have been described as providing a "substantive right to be free from liability after a given period of time has elapsed from a defined event." Bain, Determining the Preemptive Effect of Federal Law on State Statutes of Repose, 43 U. Balt. L. Rev. 119, 125 (2014). The statutes are independent of one another and they do not affect each other directly as they are triggered by entirely distinct events. [Citations omitted.]
Chapter 93A is covered by a four-year statute of limitations. A six-year statute of repose covers tort actions arising from deficiencies in improvements to real property: "after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner."
In the instant case, the plaintiff sought relief for damage resulting from a fire 15 years ago. The plaintiff attributed the fire to multiple deficiencies in electrical work completed by defendant contractors. Arguing that the electrical work was not done in compliance with the state code, the plaintiff characterized 93A as "neither wholly tortious nor wholly contractual in nature." The court, however, found the plaintiff's claim "indistinguishable from a claim of negligence," so barred by the statute.
Three justices dissented. Chief Justice Gants in dissent pointed out that the general statute of repose does not mention chapter 93A, while the general limitations provision does. And yet another statute, stating terms of both limitation and repose, purports to govern both contract and tort malpractice actions against doctors. So the legislature knew how to write what it meant. The general statute of repose, the chief observed, predated chapter 93A, so could not have anticipated it. Moreover, statutes of limitation and repose have distinct policy objectives:
In short, as is alleged in this case, the property owner may be barred by the statute of repose from bringing a claim before he or she knows, or reasonably should know, that he or she even has a claim -- even where the defendant has fraudulently concealed the claim from the plaintiff. Consequently, a statute of repose reflects a legislative decision that it is more important to protect certain defendants from old claims than it is to protect the right of plaintiffs to enforce otherwise valid and timely claims.
Thus a statute of repose should not be construed to cover 93A absent plain legislative direction. The chief concluded: "[T]his is a usurpation of a distinctly legislative prerogative."
The Massachusetts Supreme Judicial Court adopted the continuing
treatment exception to the state medmal limitations period (three years)
and reasonable discovery rule in Parr v. Rosenthal, published this week, http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/12014.pdf.
The opinion offers a worthwhile review of the language and standards of
Masschusetts common law interpretation of the statutory limitations periods.
Bonus
tracks include (1) the problem of a minor plaintiff; (2) interaction
with statutes of repose; (3) role of the jury in fact-finding; and (4) a
dissent (from p. 37) that doesn't necessarily disagree with the
rationale but thinks the upset to settled common law invaded the
policy-making prerogative of the legislature.
Saliently for the
litigants, the Court ruled that the limitations period ran despite
operation of the continuing treatment doctrine, because the doctrine
ceased to operate when the defending physician left the treatment team.
