Pobieglo v. Monsanto Co.

• Decision Date: 11 April 1988
• Docket Number: No. S-4492,S-4492
• Citation: 402 Mass. 112,521 N.E.2d 728
• Parties: John L. POBIEGLO, executor, 1 et al. 2 v. MONSANTO COMPANY, et al. 3
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 728

521 N.E.2d 728

402 Mass. 112

John L. POBIEGLO, executor, ¹ et al.² v. MONSANTO COMPANY, et al. ³

No. S-4492.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 4, 1987.

Decided April 11, 1988.

Keith S. Halpern (Gail Strassfeld, Boston, with him), for plaintiffs.

Marc E. Kasowitz, New York City, and Richard F. Faille, Springfield, for Celanese Chemical Co., Inc.

Robert P. Powers, Boston, for Monsanto Co.

Mark W. Pearlstein, Boston, for Union Carbide Corp.

Samuel A. Marsella, Springfield, for E.I. du Pont de Nemours & Co., inc.

Robert D. Canty, Boston, for McKesson Corp.

Frank Yesu, Springfield, for Wright Chemical Corp.

Robert M. Hocking, Boston, for American Cyanamid Corp.

Thomas J. Sartory, Boston, for Tenneco Resins, Inc.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

This case comes before the court on certification from the United States District Court for the District of Massachusetts of two questions involving the applicability of the so-called discovery rule to claims for wrongful death and conscious pain and suffering arising from exposure to workplace chemicals. See S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981).

The plaintiffs filed suit in the Superior Court in Hampden County on December 31, 1984, seeking to recover for the alleged wrongful death and conscious pain and suffering of John I. Pobieglo (decedent) and for their loss of consortium and loss of parental society. The claims relevant here, for wrongful death pursuant to G.L. c. 229, § 2 (1986 ed.), and for the decedent's conscious pain and suffering, pursuant to G.L. c. 229, § 6 (1986 ed.), were founded in theories of negligence, breach of express and implied warranties, and reckless conduct. The plaintiffs alleged that the decedent was exposed to formaldehyde materials and products while employed by the defendant, Monsanto Company (Monsanto), at its chemical plant near Springfield, Massachusetts, and that this exposure caused the decedent to contract cancer of the nasopharynx resulting in his death on July 22, 1979. The plaintiffs further alleged that (1) they remained in good faith ignorance of the existence of grounds for a complaint against the defendants until more than three years after the date of the decedent's death, and (2) they commenced this action within three years of the date they first discovered the existence of grounds for suit.

On or about January 30, 1985, Union Carbide on behalf of all the defendants removed the case to the United States District Court for the District of Massachusetts. On October 21, 1986, a judge in that court denied the defendants' motion to dismiss or for summary judgment as to those claims challenged on statute of limitations grounds, adopting the report and recommendation of the magistrate, inter alia, that there was a reasonable likelihood that this court "would apply the statute of limitations 'discovery rule' to actions brought under the Massachusetts wrongful death and survival statutes." ⁴ At the same time, the judge denied the plaintiffs' motion for certification. However, on May 18, 1987, subsequent to our decision in Hallett v. Wrentham, 398 Mass. 550, 499 N.E.2d 1189 (1986), the judge ordered certified the following questions of law: 1. "May a discovery rule be applied in an action for wrongful death brought under Mass.Gen.Laws ch. 229, § 2 where, as a consequence of plaintiffs' good faith ignorance of the existence of grounds for a complaint, the action was commenced more than three years after the date of decedent's death?" 2. "May a discovery rule be applied in an action for conscious pain and suffering brought under Mass.Gen.Laws ch. 229, § 6 where, as a consequence of plaintiffs' good faith ignorance of the existence of grounds for a complaint, the action was commenced more than three years after the date of the decedent's death, and more than two years after the executor of the decedent's estate posted his bond? "

For the following reasons, we answer both certified questions in the negative.

1. In pertinent part, G.L. c. 229, § 2 (1986 ed.), provides: "An action to recover damages under this section shall be commenced within three years from the date of death or within such time thereafter as is provided by section four, four B, nine or ten of chapter two hundred and sixty."

Relying principally on our opinions in Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222 (1972), and Olsen v. Bell Tel. Laboratories, Inc., 388 Mass. 171, 445 N.E.2d 609 (1983), the plaintiffs urge us, in the interest of fairness, to extend application of the discovery rule to claims for wrongful death so as not to deprive the plaintiffs of a remedy before they knew, or reasonably should have known, that the decedent was harmed by the defendants' conduct. In Gaudette, supra at 72, 284 N.E.2d 222, we held that the right to recover for wrongful death is of common law origin and 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 they may be tolled by the various provisions of G.L. c. 260." The plaintiffs contend that there is no principle of distinction between modification of the wrongful death statute of limitations through a discovery rule and application of the minor tolling provisions of G.L. c. 260 (1986 ed.). Similarly, the plaintiffs argue that where, in a case involving nonfatal injuries caused by workplace exposure to a toxic substance, we applied a discovery rule to claims arising under G.L. c. 260, § 2A, we should not deny recovery merely because the injury alleged to have been caused by the defendants here was so serious as to result in death. In a case involving death, too, the plaintiffs contend, the principle that "a plaintiff should be put on notice before his claim is barred," Franklin v. Albert, 381 Mass. 611, 619, 411 N.E.2d 458 (1980), warrants application of a discovery rule to the wrongful death statute.

Central to the plaintiffs' analysis of this evolving area of the law is the common law origin of the right to recover for wrongful death. Thus, the plaintiffs contend, where this is the view, a discovery rule has been uniformly applied despite explicit statutory language directing that the limitations period is to run "from death." E.g., Eisenmann v. Cantor Bros., 567 F.Supp. 1347 (N.D.Ill.1983); Hanebuth v. Bell Helicopter Int'l, 694 P.2d 143 (Alaska 1984); Myers v. McDonald, 635 P.2d 84 (Utah 1981). ⁵ Conversely, the plaintiffs argue, courts of jurisdictions which do not recognize a nonstatutory right of action for wrongful death have reasoned that the lack of a nonstatutory right compelled strict construction of "from death" language, despite "harsh" results. See, e.g., Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142 (1st Cir.1979) (interpreting Rhode Island law); Knauer v. Johns-Manville Corp., 638 F.Supp. 1369 (D.Md.1986); Stiles v. Union Carbide Corp., 520 F.Supp. 865 (S.D.Tex.1981); Holzsager v. Warburton, 452 F.Supp. 1267 (D.N.J.1978); Clark v. Prakalapakorn, 8 Kan.App.2d 33, 648 P.2d 278 (1982).

Here it is of no significance that the wrongful death claim has common law origins, since we are first concerned with the meaning of G.L. c. 229, § 2, which limits the right to bring such claims. Only if the statute is ambiguous, or couched in terms that suggest that we do so, do we look beyond the express statutory language.

The Legislature has unambiguously stated that a claim for wrongful death must be brought within "three years from the date of death." Application of a rule which would delay accrual until discovery would be in clear contravention of the legislative directive that the period of limitation runs from the date of death. Furthermore, it must be understood that the discovery rule grew out of the need to determine when a cause of action "accrued." When the Legislature limits the time within which suit can commence from the date of accrual, it leaves to the court the determination of the precise meaning of the term accrued.

At least as early as 1974, this court interpreted accrual language in c. 260 to incorporate the discovery rule. Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131 (1974). Since that time, the Legislature has amended the wrongful death statute of limitations at least twice and has retained the concept of limiting the time from the date of death thereby avoiding the accrual concept. See, e.g., St.1981, c. 493, § 1; St.1979, c. 164, § 1. Contrary to the plaintiffs' assertion that there is no principle of distinction between a discovery rule and application of the minor tolling provisions of G.L. c. 260, § 7, we see at least three important distinctions. First, the wrongful death statute under consideration in Gaudette was silent about tolling provisions. Second, the discovery rule is a judicial creation whereas tolling rules are themselves of legislative creation applicable to a wide range of causes of action. Third, and perhaps most significant, application of a minor tolling provision to the wrongful death statute does not disturb the legislatively determined date of accrual, the date of death. General Laws c. 260, § 7, merely provides that the running of the limitations period will be suspended "[i]f the person ... is a minor ... when a right to bring an action first accrues ..." (emphasis added).

We reiterate that "Gaudette does not stand for the proposition that the requirements of the statute may be disregarded." Hallett v. Wrentham, 398 Mass. 550, 555, 499 N.E.2d 1189 (1986). ⁶ Although the right is of common law origin, "the death statute specifies the procedure and recovery." Id. We cannot say that the result is illogical or absurd. See Grass v. Catamount Dev. Corp., 390 Mass. 551, 457 N.E.2d 627 (1983) (Legislature might reasonably choose to put wrongful death claimant on different footing...