628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.

Docket NºCiv. A. 82-1672
Citation628 F.Supp. 1219
Party NameAnderson v. W.R. Grace & Co.
Case DateJanuary 03, 1986
CourtUnited States District Courts, 1st Circuit, District of Massachusetts

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628 F.Supp. 1219 (D.Mass. 1986)

Anne ANDERSON, et al., Plaintiffs,


W.R. GRACE & CO., et al., Defendants.

Civ. A. No. 82-1672-S.

United States District Court, D. Massachusetts.

Jan. 3, 1986

As Amended Feb. 21, 1986.

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Jan Richard Schlichtmann, Schlichtmann, Conway & Crowley, Boston, Mass., for plaintiffs.

William J. Cheeseman, Foley, Hoag & Eliot, Boston, Mass., for W.R. Grace & Co.

Jerome P. Facher, Hale & Dorr, Boston, Mass., for Beatrice Foods.


SKINNER, District Judge.

This case arises out of the defendants' alleged contamination of the groundwater in certain areas of Woburn, Massachusetts, with chemicals, including trichloroethylene and tetrachloroethylene. Plaintiffs allege that two of Woburn's water wells, Wells G and H, drew upon the contaminated water until the wells were closed in 1979 and that exposure to this contaminated water caused them to suffer severe injuries.

Of the 33 plaintiffs in this action, five are the administrators of minors who died of leukemia allegedly caused by exposure to the chemicals. They bring suit for wrongful death and conscious pain and suffering. Sixteen of the 28 living plaintiffs are members of the decedents' immediate families. These plaintiffs seek to recover for the emotional distress caused by witnessing the decedents' deaths. Three of the living plaintiffs also contracted leukemia and currently are either in remission or treatment for the disease. The 25 non-leukemic plaintiffs allege that exposure to the contaminated water caused a variety of illnesses and damaged their bodily systems. All of the living plaintiffs seek to recover for their illnesses and other damage, increased risk of developing future illness, and emotional distress. Six of the plaintiff families still reside in the area above the allegedly contaminated water. These plaintiffs seek injunctive relief under a nuisance theory.

Two of the defendants, W.R. Grace & Co. and Beatrice Foods Co. (collectively "defendants"), have jointly moved for partial summary judgment on several of plaintiffs' claims. They contend that:

(1) the wrongful death claims of Michael Zona, James Anderson and Carl Robbins, III are barred by the time limitations of the Massachusetts wrongful death statute, M.G.L. c. 229, § 2;

(2) the emotional distress claims of the plaintiffs who have not contracted leukemia may not stand because the emotional distress was not caused by any physical injury;

(3) the plaintiffs' claims for increased risk of developing serious illness in the

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future are not recognized under Massachusetts law; and

(4) the plaintiffs lack standing to request injunctive relief under a theory of nuisance. 1

As these contentions raise discrete issues, I will address each in turn.

A. Statute of Limitations.

1. Michael Zona.

Defendants argue that Michael Zona's wrongful death action is barred by the statute of limitations. The Massachusetts wrongful death statute provides in pertinent part: "An action to recover damages under this section shall be commenced within three years from the date of death ..." M.G.L. c. 229, § 2. This wrongful death action was filed in May of 1982, more than eight years after Michael Zona died on February 23, 1974. Plaintiffs contend that the action was timely filed because the statute was tolled until May, 1979, when they discovered the alleged cause of Michael Zona's death, by the Massachusetts "discovery rule", which tolls the statute of limitations until a plaintiff knows or reasonably should know that he or she has been harmed as a result of the defendant's conduct. Levin v. Berley, 728 F.2d 551, 553 (1st Cir.1984) (citing Franklin v. Albert, 381 Mass. 611, 411 N.E.2d 458, 460 (1980)). The Supreme Judicial Court has not decided whether the discovery rule will toll the statute of limitations contained in the Massachusetts wrongful death statute, M.G.L. c. 229, § 2.

The First Circuit Court of Appeals framed the issues which I must address in determining whether to apply a state discovery rule to a wrongful death action in Cadieux v. International Telephone & Telegraph Corp., 593 F.2d 142 (1st Cir.1979) (Rhode Island law). The Court of Appeals relied on two factors in holding that the Supreme Court of Rhode Island would not extend the discovery rule to wrongful death cases brought after expiration of the statutory period beginning at the "death of such person". First, the Rhode Island cases applying the discovery rule involved statutes of limitation requiring suit within a certain time after the cause of action "accrues". The Court of Appeals noted that such statutes, unlike the wrongful death statute, clearly permit judicial interpretation as to the time when the limitations period begins to run. Second, the Rhode Island Supreme Court had refused to read exceptions into the wrongful death statute of limitation because wrongful death was a legislatively created cause of action unknown to the common law and therefore not subject to judicial expansion. Id. at 143.

Massachusetts law is similar to the Rhode Island law examined in Cadieux in that the statute of limitation of the Massachusetts wrongful death statute provides that the limitation period begins upon "death". M.G.L. c. 229, § 2. In addition, the Massachusetts cases applying the discovery rule concern statutes under which the limitation period commences when the cause of action "accrues". E.g., Franklin v. Albert, 381 Mass. 611, 411 N.E.2d 458 (1980) ( M.G.L. c. 260 § 4); Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131 (1974) (M.G.L. c. 260 §§ 2, 2A). The Massachusetts discovery rule stems from an interpretation of the word "accrues" in these statutes. See, e.g., Olsen v. Bell Telephone Laboratories, Inc., 388 Mass. 171, 445 N.E.2d 609, 611 (1983) (As the statutes "[do] not direct when the period of limitation begins to run, that determination is for the court to make.").

However, the fact that the limitations period contained in the wrongful death statute does not refer to the accrual of the cause of action is not fatal to plaintiff's attempt to rely on the discovery rule under Massachusetts law. In holding that the courts lack the power to expansively interpret the Rhode Island wrongful death statute's limitations provision, the court of appeals

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in Cadieux relied on cases in which the Rhode Island Supreme Court

refused to read exceptions into the statute of limitations, reasoning that the time limit is a condition on the existence of a legislatively created cause of action unknown to the common law and therefore not subject to judicial alteration or expansion.

593 F.2d at 143 (citations omitted). In Massachusetts, the cause of action for wrongful death is subject to limited judicial alteration and expansion because the "right to recovery for wrongful death is of common law origin". Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222, 229 (1972) (overruling contrary decisions). The limitations period of the wrongful death statute is a limitation upon the remedy and not upon the right. Id. at 284 N.E.2d at 229. Accordingly, the court stated:

We further hold that statutes limiting the period for bringing actions for death are to be construed in the same manner as the limitations contained in G.L. c. 260, the general statute of limitations, and that in appropriate cases they may be tolled by the various provisions of G.L. c. 260.

Id. The court then applied M.G.L. c. 260, § 7, which tolls the statute during plaintiff's minority, to allow the wrongful death action to continue. Id. at 230.

In Gaudette, the Supreme Judicial Court did not specifically construe the language of the wrongful death statute providing that the limitations period begins to run on the "date of death" because the statute incorporates certain other statutes of limitation, one of which--M.G.L. c. 260, § 4--applied. 284 N.E.2d at 225. However, in Jenkins v. Jenkins, 15 Mass.App. 934, 444 N.E.2d 1301, 1302-03 (1983) (rescript), the Appeals Court of Massachusetts relied on Gaudette in applying M.G.L. c. 260, § 12 to toll the limitations period commencing at the "date of death" for the period of fraudulent concealment of the cause of action for wrongful death.

As noted above, the discovery rule is a method of defining when a cause of action accrues. The principle behind the discovery rule is that "a plaintiff should be put on notice before his or her claim is barred by the passage of time." Olsen, 445 N.E.2d at 611. The notice required by the rule includes knowledge of both the injury and its cause--that plaintiff "has been harmed as a result of the defendant's conduct". Fidler v. Eastman Kodak Co., 714 F.2d 192, 198 (1st Cir.1983) (quoting Olsen, 445 N.E.2d at 611); see Franklin, 411 N.E.2d at 463; see also Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170 (1977) (statute tolled until plaintiff discovers that injury was caused by defendant's conduct).

Arguably, limitation statutes should apply equally to similar facts. Where the circumstances would allow an extension of time under the limitations statute for tort for mere wounding or injury, it may be unjust to permit the fact of death to bar the use of the discovery rule. See Fure v. Sherman Hospital, 64 Ill.App.3d 259, 21 Ill.Dec. 50, 55-60, 380 N.E.2d 1376, 1381-86 (1978).

The present state of Massachusetts law does not, therefore, foreclose the possibility that a discovery rule might be applied in starting the limitation period notwithstanding the statutory reference to the time of death. I cannot predict with any confidence what the Supreme Judicial Court...

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