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SJC-12714 GGNSC
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Administrative Services LLC v Jackalyn M. Schrader.
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Mr Vail, good morning.
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Morning Mr Chief Justice, may it please the court.
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I'm John Vail for the Plaintiff.
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If I could, I'd like to reserve three minutes for rebuttal.
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We don't generally allow that
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but we'll see if anything emerges.
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First, I'm, of course, I'm aware of the previous case
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and I wanna make clear that we have no release
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such language at issue here.
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We have the issue of the ownership of the claim.
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And no owner of the Wrongful Death Claim here
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has agreed to arbitrate that claim.
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No agent that they authorized agreed on their behalf
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to arbitrate that claim.
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They could, today, agree to arbitrate their claim.
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There's no barrier to arbitration.
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It's a little ironic, isn't it that.
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So the person who's actually bringing the suit,
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is the one who put her into the nursing home, right?
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In this case, so the--
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Who was her agent to do that.
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And she had the Power of Attorney to sign that
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and now--
That's correct.
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And in those circumstances, she's sort of the actor.
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It just seems like a bad case
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to kinda make the argument, isn't it?
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But she signed this agreement only in her capacity
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as agent for, and had no authority
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to sign for beneficiaries in general
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and I think beneficiaries in general has to be an issue here
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but as you interpret this statute and try and make it whole
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and I'm gonna.
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But they don't want to arbitrate and they don't have to
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because that's how property works
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and that's how contracts work.
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This is their property.
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It's theirs to alienate if they choose to
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and they haven't chosen to.
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So help me to understand pragmatically.
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I gather if the Executor of the Estate
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wishes to recover for pain and suffering,
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that is a matter that is arbitrable.
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We have conceded that, yes.
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Okay, so that means that if you proceed,
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there could be arguably two separate actions.
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What if the arbitration goes first?
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Well, I think the arbitration should not go first
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under the Beacon Theaters' rationale.
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What Beacon Theaters tells you is
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when, constitutionally, when you have two matters
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that are parallel
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and one of them involves the right to jury trial,
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that the matter that does not
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involve the right to jury trial should come second.
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Precisely to protect the right to jury trial
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in the fact finding, in this case,
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on behalf of the people who do it.
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Now, if there's a preclusion,
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if preclusion doctrines are to apply here,
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that would suggest that the jury trial matter go first
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and the arbitral matter be stayed pending resolution
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of the jury matter.
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And that would mean that through preclusion,
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the issue of negligence would be resolved,
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and the jury action, the only issue would be,
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if there were negligence, what the damages were
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for the arbitration.
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Presumably yes, because you do recognize that,
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all of the final judicial decisions
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are generally recognized in arbitral forums.
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The other way around is untenable
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because we've had the position here
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where my colleagues have argued that,
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that somehow,
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if you had to do it that way,
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if the Federal Arbitration Act
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compels one case to be arbitrated,
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that you have to arbitrate everything.
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And that's exactly not what the FAA does.
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The FAA realizes early on that it's a weird exception
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to the idea of judicial economy
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and it says, that's the price we pay
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for having parallel actions pending,
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is the price you can pay
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for enforcing arbitration agreements.
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Another pragmatic question.
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So, if you had a situation in which you have a nursing home
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which was negligent and therefore allowed the patient
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to fall and break her hip and she was incapacitated,
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that claim would be arbitrated, correct?
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If--
If she were still alive?
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If she were still alive and she signed,
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she or her authorized agent
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signed the arbitration agreement, yes.
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And then if she died as a result of complications
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arising from that, what would happen then?
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You're in the middle of an arbitration,
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you may have completed an arbitration.
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How would that play out?
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Her claim would be pending
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in the arbitral forum when she died.
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So presumably there's a procedure in the arbitral forum
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to convert it to the Estate's Claim.
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And then you would raise the question,
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if the subsequent claim were filed,
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I don't believe that Beacon Theaters would require it.
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I think Beacon Theaters applies to the cases
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that are simultaneous or pending simultaneously.
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I believe the prior case pending doctrine
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would trump in that case.
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Are you married to the result of the first case?
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Could there be,
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is there an argument that says,
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the release applies to the heirs
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but the arbitration agreement does not?
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The first case,
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the Dardy case?
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Yeah.
That's right here?
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I think the Dardy case is reconcilable with,
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and I think that,
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I can try to respond to some the concerns you had
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in the Dardy argument because I think
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one of the things to do
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is focus on the language of section two
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and if you interpret the language of section two
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about circumstances such as
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the deceased could have recovered.
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To refer to the tort itself
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and not any separate actions of either
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the decedent or the tortfeasor
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but to the conduct that gives rise.
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Why wouldn't they include it in clause one as well then?
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And why in four and five do they keep--
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Clause one addresses the survival claim
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in gross negligence.
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Not really, it just says negligence
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and it doesn't have that language the Chief read
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and in the second clause it does.
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Because if it applies to clause one,
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you got a easy winner, don't you?
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I'm just trying to.
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Well you got an easy loser actually.
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(laughing)
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So I'm just trying to make sure I understand
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why you say it doesn't apply to clause one.
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Well I think again to,
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Clause one is dealing with
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liability to the decedent.
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So it says negligence.
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But it's dealing with liability to the decedent.
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All of them deal--
Not to their hers.
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No it's not, it's dealing with.
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It's a, I don't think so, but maybe I'm misreading it
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because honestly, the Chief caught something I didn't.
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I think we can excuse both of us if we have difficulty
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making some sense of the statutory language.
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But unfortunately, that may be at the heart
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of both of these cases, right?
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Well again, not this case because there's no release here.
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There's no release.
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There's no language affected.
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But if a negligence claim is not separable
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from the negligence that caused the death of the descendant,
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you're out of luck.
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Well you have over a hundred years of jurisprudence
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saying that it is separate
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from the McCarthy case forward at least.
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The key thing here is that the decedent has no power
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to release the claim.
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The decedent has no power to settle the claim.
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That's been clear.
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If the statute itself does,
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if two applies to one and you don't have a negligence action
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unless the decedent would have an action,
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you're in real trouble here.
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I don't think so.
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You have settled this in your jurisprudence.
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This is not an open question.
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This is settled--
Which case settled?
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Interpretation of the statute.
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Well, McCarthy for one.
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McCarthy is the 1914 case.
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Beausoleil describes these cases
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and cites these cases indicum.
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You discussed this matter in Webb v. Gaudette.
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But I think the law is clear
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that this belongs to
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the decedents and the law is clear.
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Excuse me, to the beneficiaries.
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The law is clear that the decedent has no power
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to settle the claim.
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The decedent settling the decedent's claim
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has no effect on the existence
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of the claim of the beneficiaries.
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That is crystal clear.
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The argument we heard moments ago is,
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even if that's true.
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If the decedent can't settle a claim
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that belongs to the heirs,
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what they can do is they can say.
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Okay in this circumstance,
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there's a common law duty to me,
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but I'm signing this
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so you don't have any common law duty to me.
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Wait one sec, full claim of the argument.
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So now, the decedent couldn't give away
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the cause of action of the heirs,
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but what the decedent gave away was one of the elements
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of the cause of the action of duty.
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I'm just saying that's the argument,
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I'm not saying it's right.
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Yeah, I don't believe that,
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I think that the right way to interpret that
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is to say that the statute, by designating the beneficiaries
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as the owners of a cause of action,
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has recognized that a separate duty is owed to them
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and you make sense of this whole mess by acknowledging that
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and acknowledging just as the decedent had no power
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to compromise their claim,
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it had no power to release the tortfeasor
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from a duty it owed to the beneficiaries.
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So if you were a nursing home
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which wanted a comprehensive arbitration cause,
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you'd have to get not only the nursing home resident
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or his or her Power of Attorney to sign it,
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but you'd also have to get each of the heirs to sign it.
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If you wanted a pre-dispute arbitration agreement,
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you could still have a post-dispute arbitration agreement
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once those persons are identified.
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Those persons are not identified prior to death
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because one element of their cause of action is the death.
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And you have to determine--
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So are you saying that a nursing home
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could then never get an arbitration agreement
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with regard to the wrongful death matter?
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I think the nursing home could search out people
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and find them for persons it believed would be heirs
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or who were heirs at a given time
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knowing that there's this small possibility
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that could shift over time.
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But that's their duty.
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That's how contracts work.
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It's just like if you're a Real Estate Developer
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and you wanna develop a piece of property.
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You can't go out and say,
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"Well you know, you 62 people live on this block,
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"I wanna redevelop this block
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"and I've decided I'm gonna do that."
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You have to get contracts with each one.
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And that's what a nursing home has to do
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if it wants, again, a pre-dispute arbitration clause,
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there is no current barrier to arbitration of this clause,
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of this cause to volitional arbitration of this case.
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We simply don't express the volition.
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And what happens if the resident has two sons
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and one son signs it and one does not?
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I think one son could bind himself to arbitrate his claim.
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Now this raises obviously,
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we come up against the procedural question
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of the preference of the legislature
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that these be resolved in one suit with one thing.
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But it's the Federal Arbitration Act.
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The Federal Arbitration's Act requirement
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that the arbitration clauses be enforced.
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That's the barrier to doing that.
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It's not the ownership interest
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00:15:03.600 --> 00:15:05.920
of the persons in their claims.
270
00:15:05.920 --> 00:15:08.350
Can I ask you a silly question?
271
00:15:08.350 --> 00:15:09.293
Of course.
272
00:15:10.240 --> 00:15:12.610
I thought that this was a certified question
273
00:15:12.610 --> 00:15:15.510
from the Federal Court.
274
00:15:15.510 --> 00:15:17.640
Is it not a certified question?
275
00:15:17.640 --> 00:15:18.718
Yes it is.
276
00:15:18.718 --> 00:15:20.655
And the certified question has to do with whether or not
277
00:15:20.655 --> 00:15:23.320
the wrongful-death claim of her heirs
278
00:15:23.320 --> 00:15:24.640
is derivative or independent
279
00:15:24.640 --> 00:15:26.460
of her own cause of action, right?
280
00:15:26.460 --> 00:15:27.293
That's correct.
281
00:15:27.293 --> 00:15:28.800
And isn't that basically what's at issue
282
00:15:28.800 --> 00:15:29.793
in the other case?
283
00:15:31.020 --> 00:15:33.000
Whether the claim is a wrongful death claim
284
00:15:33.000 --> 00:15:35.280
as a derivative or independent?
285
00:15:35.280 --> 00:15:37.556
It's in the Dardy case.
286
00:15:37.556 --> 00:15:38.389
Yes, the one we just did.
287
00:15:38.389 --> 00:15:40.480
It's in part an issue there but again
288
00:15:43.650 --> 00:15:48.650
in the Dardy case you can hold that the claim is independent
289
00:15:50.730 --> 00:15:55.150
but that the release was operative
290
00:15:55.150 --> 00:15:58.700
if you find that no Duty was owed
291
00:15:58.700 --> 00:16:02.757
by the tortfeasor to the beneficiaries.
292
00:16:02.757 --> 00:16:05.293
That's not an issue in this case.
293
00:16:06.292 --> 00:16:07.125
[Mr Chief Justice] Okay thank you.
294
00:16:07.125 --> 00:16:08.350
You're welcome.
295
00:16:08.350 --> 00:16:09.543
Mr Desmond.
296
00:16:15.466 --> 00:16:18.080
Good morning Mr. Chief Justice and Associate Justices,
297
00:16:18.080 --> 00:16:19.530
may it please the court.
298
00:16:19.530 --> 00:16:23.310
I wanna first correct something that was said.
299
00:16:23.310 --> 00:16:25.220
In terms of the Order of Proceedings,
300
00:16:25.220 --> 00:16:27.600
if one case were arbitrated et cetera,
301
00:16:27.600 --> 00:16:30.570
The Massachusetts arbitration act requires
302
00:16:30.570 --> 00:16:33.840
that where a case must be arbitrated
303
00:16:33.840 --> 00:16:35.100
in their remaining claims,
304
00:16:35.100 --> 00:16:37.010
that the arbitration go first
305
00:16:37.010 --> 00:16:39.650
and that the other claims be stayed
306
00:16:39.650 --> 00:16:41.756
pending the result of the arbitration
307
00:16:41.756 --> 00:16:43.890
which is what the opposite of what my brother said.
308
00:16:43.890 --> 00:16:44.960
That's by statute.
309
00:16:44.960 --> 00:16:47.110
Would that work under his theory though?
310
00:16:47.110 --> 00:16:49.210
Because his theory would be that those claims
311
00:16:49.210 --> 00:16:51.770
are not even covered by that because they're independent.
312
00:16:51.770 --> 00:16:53.730
It absolutely works.
313
00:16:53.730 --> 00:16:56.820
In Miller versus Carter which is a 2007 case
314
00:16:56.820 --> 00:17:00.990
decided by this court with the same Defendant involved
315
00:17:00.990 --> 00:17:05.020
in a similar issue where Dr Carter
316
00:17:05.020 --> 00:17:07.490
was a Doctor who was accused of malpractice,
317
00:17:07.490 --> 00:17:11.017
my nursing home client heard the arbitration agreements,
318
00:17:11.017 --> 00:17:14.260
and this court held that the arbitral claims
319
00:17:14.260 --> 00:17:17.320
that Mr Vail has now considered must be arbitrated.
320
00:17:17.320 --> 00:17:20.040
That is the claims that belongs to the Estate
321
00:17:20.040 --> 00:17:22.640
which are wrongful-death, conscious pain and suffering,
322
00:17:22.640 --> 00:17:25.120
punitive damages must be arbitrated.
323
00:17:25.120 --> 00:17:27.480
Those would have Res Judicata effect
324
00:17:27.480 --> 00:17:31.470
on any subsequent action if the court went that way,
325
00:17:31.470 --> 00:17:35.480
however, the biggest difference here in this case
326
00:17:35.480 --> 00:17:39.300
between this case and the one that we heard before us
327
00:17:39.300 --> 00:17:41.090
is that the Wrongful Death Statute
328
00:17:41.090 --> 00:17:44.640
and the issue in this case is the procedural mechanism.
329
00:17:44.640 --> 00:17:46.080
The Wrongful Death Statute says
330
00:17:46.080 --> 00:17:48.830
that there shall be a single action very clearly
331
00:17:48.830 --> 00:17:52.810
and it is uncontroverted here in open court
332
00:17:52.810 --> 00:17:55.400
that the wrongful-death action of the Estate
333
00:17:55.400 --> 00:17:58.980
which was signed by Miss Schrader on behalf of her mother
334
00:17:58.980 --> 00:18:00.460
as the Attorney-in-Fact.
335
00:18:00.460 --> 00:18:04.080
That case will be arbitrated and the question remaining
336
00:18:04.080 --> 00:18:08.080
is whether or not a separate action can be held
337
00:18:09.020 --> 00:18:11.040
arising from the wrongful death action.
338
00:18:11.040 --> 00:18:13.000
And the Wrongful Death Statute is very clear.
339
00:18:13.000 --> 00:18:15.430
There shall an action, singular.
340
00:18:15.430 --> 00:18:17.690
And this court has been focusing on
341
00:18:18.650 --> 00:18:21.870
the first five paragraphs which are the triggers
342
00:18:21.870 --> 00:18:23.580
for wrongful death damages.
343
00:18:23.580 --> 00:18:25.710
The first part of the statute says there were five,
344
00:18:25.710 --> 00:18:28.340
basically coupled with conduct actions
345
00:18:28.340 --> 00:18:30.580
that trigger the three remedies
346
00:18:30.580 --> 00:18:33.090
but the last part of the statute is the key one
347
00:18:33.090 --> 00:18:35.030
Which it says that all of those actions,
348
00:18:35.030 --> 00:18:37.140
whether it arises out of the death,
349
00:18:37.140 --> 00:18:39.670
or recklessness or common carrier,
350
00:18:39.670 --> 00:18:41.230
and then it describes the damages,
351
00:18:41.230 --> 00:18:45.900
all of those claims shall be considered in action
352
00:18:47.760 --> 00:18:51.270
brought by the Executor and Mr Chief Justice
353
00:18:51.270 --> 00:18:53.670
asked a question, what if there's two beneficiaries?
354
00:18:53.670 --> 00:18:55.870
And I'm thinking here, what if there are seven?
355
00:18:55.870 --> 00:18:58.090
And one wants to litigate in
356
00:18:58.090 --> 00:18:59.450
the home State of the Defendant,
357
00:18:59.450 --> 00:19:02.180
which in this case is Texas,
358
00:19:02.180 --> 00:19:05.730
and one wants to litigate in the forum in Delaware
359
00:19:05.730 --> 00:19:06.800
where they're incorporated
360
00:19:06.800 --> 00:19:08.760
and one wants to litigate in Federal Court
361
00:19:08.760 --> 00:19:09.900
because it's diversity.
362
00:19:09.900 --> 00:19:13.010
One wants to litigate in State Court
363
00:19:13.010 --> 00:19:14.350
because it's a State Court action.
364
00:19:14.350 --> 00:19:16.440
And one wants to be jury-waived
365
00:19:16.440 --> 00:19:19.780
and one wants to arbitrate and the last one's indifferent.
366
00:19:19.780 --> 00:19:22.740
Well they had that property right.
367
00:19:22.740 --> 00:19:25.360
In our case we're not discussing whether or not
368
00:19:25.360 --> 00:19:26.520
there's a waiver in the claim.
369
00:19:26.520 --> 00:19:28.240
The question is, what is this forum
370
00:19:28.240 --> 00:19:31.040
that single action must be brought in?
371
00:19:31.040 --> 00:19:33.560
In this case where we have two or six,
372
00:19:33.560 --> 00:19:35.340
as it happens often with the children,
373
00:19:35.340 --> 00:19:39.640
family members, the wife and kids of the decedent,
374
00:19:39.640 --> 00:19:42.990
you may have six different claims that are independent
375
00:19:42.990 --> 00:19:45.070
inasmuch as that wife has a consortium claim
376
00:19:45.070 --> 00:19:48.430
for her loss of consortium, society,
377
00:19:48.430 --> 00:19:51.290
companionship and advice under the Wrongful Death Statute.
378
00:19:51.290 --> 00:19:54.690
Which is different than the son who was at the bedside
379
00:19:54.690 --> 00:19:57.180
and different than the daughter who was at the bedside
380
00:19:57.180 --> 00:19:58.670
and certainly different than the son
381
00:19:58.670 --> 00:20:00.210
who was the prodigal son.
382
00:20:00.210 --> 00:20:03.000
They have different claims but they must be brought
383
00:20:03.910 --> 00:20:06.130
in a single action brought by the Executor
384
00:20:06.130 --> 00:20:09.320
and the Executor is the person that determines the forum
385
00:20:09.320 --> 00:20:12.080
and the Executor in our case is bound
386
00:20:12.080 --> 00:20:15.887
by the arbitration agreement, signed by the decedent
387
00:20:15.887 --> 00:20:18.480
but in this case, by the decedent's Attorney-in-Fact,
388
00:20:18.480 --> 00:20:23.480
who is also the beneficiary and the Executor of the Estate.
389
00:20:24.060 --> 00:20:27.100
And those claims, and that's why we have a concession
390
00:20:27.100 --> 00:20:28.850
that those claims must be arbitrated.
391
00:20:28.850 --> 00:20:30.400
They will be arbitrated
392
00:20:30.400 --> 00:20:34.813
and the statute does not allow room for a separate action.
393
00:20:36.550 --> 00:20:38.300
Again if there are three different beneficiaries,
394
00:20:38.300 --> 00:20:40.310
they don't get to pick three different forum
395
00:20:40.310 --> 00:20:41.320
as the single action
396
00:20:41.320 --> 00:20:44.750
and that's why this case must be arbitrated
397
00:20:44.750 --> 00:20:48.750
including the claims of the beneficiaries.
398
00:20:48.750 --> 00:20:50.487
The statute only says quote,
399
00:20:50.487 --> 00:20:52.977
"Damages under this section shall be recovered
400
00:20:52.977 --> 00:20:55.800
"in an action of tort by the Executor or Administrator
401
00:20:55.800 --> 00:20:56.800
of the deceased".
402
00:20:56.800 --> 00:20:57.633
Correct.
403
00:20:57.633 --> 00:20:58.470
That's the language you're focusing on?
404
00:20:58.470 --> 00:20:59.925
Correct, an action, and it says it twice.
405
00:20:59.925 --> 00:21:01.670
But you threw in the word single.
406
00:21:01.670 --> 00:21:03.720
Well, it says an action.
407
00:21:03.720 --> 00:21:05.320
It's stated in the singular.
408
00:21:05.320 --> 00:21:07.230
It doesn't say multiple actions may be brought.
409
00:21:07.230 --> 00:21:09.993
It authorizes an action by an Executor.
410
00:21:11.620 --> 00:21:13.670
In any wrongful death case,
411
00:21:13.670 --> 00:21:16.440
the signature must come from the Executor.
412
00:21:16.440 --> 00:21:19.450
I can't get a release of the beneficiaries claims
413
00:21:19.450 --> 00:21:22.720
by direct claim by the beneficiary
414
00:21:22.720 --> 00:21:25.470
because the beneficiary can't bring an independent claim.
415
00:21:25.470 --> 00:21:26.910
The Executor brings the claim.
416
00:21:26.910 --> 00:21:29.460
The Executor has the right to control the claim,
417
00:21:29.460 --> 00:21:31.530
to answer the interrogatories,
418
00:21:31.530 --> 00:21:34.770
to make demands and settlements, to hire Counsel.
419
00:21:34.770 --> 00:21:38.164
It all comes through an action, singular.
420
00:21:38.164 --> 00:21:40.380
And to the extent I didn't mean to mislead the court
421
00:21:40.380 --> 00:21:41.750
about a singular action.
422
00:21:41.750 --> 00:21:43.140
It's spoken in the singular,
423
00:21:43.140 --> 00:21:46.283
two times consecutively in the statute.
424
00:21:47.370 --> 00:21:49.120
But yet you say, that person is bound
425
00:21:49.120 --> 00:21:50.280
by the arbitration agreement.
426
00:21:50.280 --> 00:21:52.610
On what basis is that person, the Executor,
427
00:21:52.610 --> 00:21:54.570
bound by the arbitration agreement?
428
00:21:54.570 --> 00:21:57.970
Because that is the Directive of the decedent
429
00:21:57.970 --> 00:22:01.340
who signed the agreement directing and waiving all claims
430
00:22:01.340 --> 00:22:04.350
for his own, the Wrongful Death Claim in the--
431
00:22:04.350 --> 00:22:07.420
How can he waive something that's not his or hers?
432
00:22:07.420 --> 00:22:08.253
I'm sorry?
433
00:22:08.253 --> 00:22:10.580
How can he or she waive something that is not his or hers
434
00:22:10.580 --> 00:22:12.523
to begin with?
Hasn't waived anything.
435
00:22:14.370 --> 00:22:16.850
Again, the claims of the decedent,
436
00:22:16.850 --> 00:22:20.860
There are two, first we have the five culpable conduct
437
00:22:20.860 --> 00:22:23.000
that results in three classes of the images.
438
00:22:23.000 --> 00:22:26.010
Two of which belong to the Estate.
439
00:22:26.010 --> 00:22:29.217
Those are the claims that certainly must be arbitrated
440
00:22:29.217 --> 00:22:30.480
and they have to be.
441
00:22:30.480 --> 00:22:32.490
There's no waiver of the third claim.
442
00:22:32.490 --> 00:22:36.390
There's no impact in any way on the substance of damages
443
00:22:36.390 --> 00:22:37.720
that may be recovered.
444
00:22:37.720 --> 00:22:39.440
The only limitation is given
445
00:22:39.440 --> 00:22:42.250
that the statute only authorizes an action
446
00:22:42.250 --> 00:22:43.700
brought by the Executor.
447
00:22:43.700 --> 00:22:45.000
The Executor is bound
448
00:22:45.000 --> 00:22:47.210
to arbitrate the Wrongful Death Claims.
449
00:22:47.210 --> 00:22:49.770
So how do we answer the question
450
00:22:49.770 --> 00:22:53.010
posed by the Federal Court whether the Wrongful Death Claim
451
00:22:53.010 --> 00:22:57.010
of Emma Schrader's heirs are derivative or independent
452
00:22:57.010 --> 00:22:58.524
of her own cause of action?
453
00:22:58.524 --> 00:23:00.330
How do we answer that?
454
00:23:00.330 --> 00:23:01.640
They are derivative.
455
00:23:01.640 --> 00:23:02.473
Why?
456
00:23:02.473 --> 00:23:03.306
They are derivative for a variety of reasons.
457
00:23:03.306 --> 00:23:05.080
Of which of this procedure?
458
00:23:05.080 --> 00:23:08.210
Because the sine qua non of a Wrongful Death Statute
459
00:23:08.210 --> 00:23:11.783
is negligent act or culpable conduct to the decedent.
460
00:23:11.783 --> 00:23:16.370
It's not a separate act of negligence to the beneficiaries.
461
00:23:16.370 --> 00:23:19.510
In this court in four or five different contexts
462
00:23:19.510 --> 00:23:23.120
has acknowledged that while technically independent,
463
00:23:23.120 --> 00:23:26.660
the claims of symbiotic and the trigger for liability
464
00:23:26.660 --> 00:23:30.950
is the single negligent act or reckless act to the decedent
465
00:23:30.950 --> 00:23:33.230
that resulted in the decedent's death
466
00:23:33.230 --> 00:23:36.490
and it is from that action that the other claims arise
467
00:23:36.490 --> 00:23:41.490
and specifically in Sisson versus Lhowe,
468
00:23:41.640 --> 00:23:44.400
a claim for personal injury and wrongful death of the court
469
00:23:44.400 --> 00:23:48.610
described the consortium claims
470
00:23:48.610 --> 00:23:50.970
under the Wrongful Death Statute as symbiotic
471
00:23:50.970 --> 00:23:55.220
and we might be off into the land of semantics.
472
00:23:55.220 --> 00:23:58.410
But the symbiotic claim, as this court has described
473
00:23:58.410 --> 00:24:02.910
is related to a single set of operative facts.
474
00:24:02.910 --> 00:24:04.900
And in the case in which
475
00:24:05.830 --> 00:24:08.080
Your Honor actually asked the question,
476
00:24:08.080 --> 00:24:11.040
what happens if during the arbitration, the decedent dies
477
00:24:11.040 --> 00:24:14.093
and now you have a wrongful death claim?
478
00:24:15.030 --> 00:24:18.020
That's Sisson versus Lhowe except it wasn't an arbitration,
479
00:24:18.020 --> 00:24:21.470
it was in the context of a State Court Action
480
00:24:21.470 --> 00:24:23.830
and after the death,
481
00:24:23.830 --> 00:24:26.450
the plaintiff sought to amend the complaint
482
00:24:26.450 --> 00:24:29.600
in contravention of the Statute of Repose
483
00:24:29.600 --> 00:24:31.470
because the medical malpractice had occurred
484
00:24:31.470 --> 00:24:34.160
more than four years before the incident.
485
00:24:34.160 --> 00:24:38.140
And this court held that there is no difference in the claim
486
00:24:38.140 --> 00:24:40.150
and specifically the court held that
487
00:24:40.150 --> 00:24:42.030
for the purposes of the Statute of Repose
488
00:24:42.030 --> 00:24:44.290
the term action which is the same term
489
00:24:44.290 --> 00:24:46.100
we're dealing with here
490
00:24:46.100 --> 00:24:49.050
can be seen as referring to the group of operative facts
491
00:24:49.050 --> 00:24:53.590
and not of the various remedial claims based on the facts.
492
00:24:53.590 --> 00:24:56.610
And that's what we have here, a symbiotic claim.
493
00:24:56.610 --> 00:24:58.010
The Chief asked a question,
494
00:24:58.010 --> 00:25:00.650
could the result in this case be different
495
00:25:00.650 --> 00:25:02.623
from the result in the other case?
496
00:25:04.840 --> 00:25:06.010
The other case they're saying
497
00:25:06.010 --> 00:25:07.950
there's no liability whatsoever.
498
00:25:07.950 --> 00:25:12.740
You're saying that you've got to go to arbitration.
499
00:25:12.740 --> 00:25:15.980
Could we decide in your favor
500
00:25:17.730 --> 00:25:20.100
and the opposite way in the other case
501
00:25:20.100 --> 00:25:22.825
that they're not released and if, so how?
502
00:25:22.825 --> 00:25:25.220
I think you could because at least in my case
503
00:25:25.220 --> 00:25:27.760
and without having started the briefs in the other case.
504
00:25:27.760 --> 00:25:29.740
In my case it's a simple issue
505
00:25:29.740 --> 00:25:32.360
and Mr Vail's raised the issue of property rights
506
00:25:32.360 --> 00:25:33.550
there is no waiver.
507
00:25:33.550 --> 00:25:35.650
They've got every possible remedy
508
00:25:35.650 --> 00:25:38.420
under the Wrongful Death Statute and arbitration
509
00:25:38.420 --> 00:25:42.023
in a case that will be arbitrated brought by the Executor.
510
00:25:43.060 --> 00:25:46.080
There's no issues of waiver or you don't have to get
511
00:25:46.080 --> 00:25:48.910
to the issue of was there a release of Duty?
512
00:25:48.910 --> 00:25:50.670
We acknowledge Duty.
513
00:25:50.670 --> 00:25:51.503
We acknowledge--
514
00:25:51.503 --> 00:25:55.083
But Justice Lenk's question is a derivative?
515
00:25:56.772 --> 00:25:59.110
You say it is derivatives,
516
00:25:59.110 --> 00:26:02.300
but they say they win in the other case
517
00:26:02.300 --> 00:26:04.320
because it's derivative in his release
518
00:26:04.320 --> 00:26:07.890
so I'm trying to understand how
519
00:26:07.890 --> 00:26:11.660
we can reach the opposite result in two cases
520
00:26:11.660 --> 00:26:15.290
if under both theories it's derivative.
521
00:26:15.290 --> 00:26:18.470
I'm not advancing, the idea on the other case,
522
00:26:18.470 --> 00:26:19.430
I can't speak to it..
523
00:26:19.430 --> 00:26:20.930
I'm not saying you have to
524
00:26:20.930 --> 00:26:23.460
but I'm trying to understand, is it possible?
525
00:26:23.460 --> 00:26:24.830
And you suggested that it is
526
00:26:24.830 --> 00:26:29.210
because we're not reading this waiver as broadly
527
00:26:29.210 --> 00:26:33.000
but we are reading the derivative broadly in both cases.
528
00:26:33.000 --> 00:26:34.853
Well the other cases that speak to whether
529
00:26:34.853 --> 00:26:37.580
it's derivative are informative.
530
00:26:37.580 --> 00:26:39.900
For instance Res Judicata applies.
531
00:26:39.900 --> 00:26:41.653
That's Fiddler versus Parker.
532
00:26:43.400 --> 00:26:46.640
In other words, if a claim is barred,
533
00:26:46.640 --> 00:26:48.570
in other words, in my case if the arbitration
534
00:26:48.570 --> 00:26:52.010
which under the Mass Arbitration Act must go forward first
535
00:26:52.010 --> 00:26:55.060
then there is a defense verdict, the claim is barred.
536
00:26:55.060 --> 00:26:57.400
Again, indicating that it is derivative.
537
00:26:57.400 --> 00:26:59.580
You can't re-litigate the issue of negligence.
538
00:26:59.580 --> 00:27:02.410
It's the same set of operative facts.
539
00:27:02.410 --> 00:27:04.850
In Corcoran versus GE,
540
00:27:04.850 --> 00:27:07.360
the wife's consortium claim was barred
541
00:27:07.360 --> 00:27:09.520
because the husband's workers compensation claim
542
00:27:09.520 --> 00:27:10.780
was deemed not to arise
543
00:27:10.780 --> 00:27:12.300
out of the course and scope of employment.
544
00:27:12.300 --> 00:27:14.430
She couldn't re-litigate it.
545
00:27:14.430 --> 00:27:16.920
In Tobin versus Norwood,
546
00:27:16.920 --> 00:27:18.930
the comparative negligence of the plaintiff
547
00:27:18.930 --> 00:27:21.740
which may be more applicable to the other case.
548
00:27:21.740 --> 00:27:26.040
That is a defense that if a plaintiff,
549
00:27:26.040 --> 00:27:29.060
decedent in that case is 51% negligent
550
00:27:29.060 --> 00:27:32.630
that the consortium plaintiffs are barred
551
00:27:32.630 --> 00:27:34.140
under the Comparative Negligence Statute
552
00:27:34.140 --> 00:27:36.810
because Chapter 231, Section 85,
553
00:27:36.810 --> 00:27:38.717
says that it applies to wrongful death cases
554
00:27:38.717 --> 00:27:42.290
and Tobin versus Norwood is this court's confirmation
555
00:27:42.290 --> 00:27:45.280
of the fact that the claim is barred
556
00:27:45.280 --> 00:27:47.100
by the Comparative Negligence Statute.
557
00:27:47.100 --> 00:27:49.493
In Hallett versus the town of Wrentham,
558
00:27:50.640 --> 00:27:54.030
this court said that although there are different claims
559
00:27:54.030 --> 00:27:55.330
under the Wrongful Death Statute,
560
00:27:55.330 --> 00:27:57.120
for the purposes of governmental immunity,
561
00:27:57.120 --> 00:27:59.290
there is one statutory cap
562
00:27:59.290 --> 00:28:02.240
that applies to both the Wrongful Death Claim
563
00:28:02.240 --> 00:28:04.267
and the loss of consortium claims.
564
00:28:04.267 --> 00:28:08.540
You can only get one cap if there are seven beneficiaries.
565
00:28:08.540 --> 00:28:09.710
You don't get seven caps.
566
00:28:09.710 --> 00:28:11.910
They split up the 100,000.
567
00:28:11.910 --> 00:28:14.663
In all of those cases, in each one of those contexts'
568
00:28:15.650 --> 00:28:18.860
is indicative of the fact that they are derivative
569
00:28:18.860 --> 00:28:22.810
and again, whether the words are controlling,
570
00:28:22.810 --> 00:28:27.560
that's what the court, that the Federal District.
571
00:28:27.560 --> 00:28:29.780
The First Circuit Court of Appeal certified
572
00:28:29.780 --> 00:28:33.330
and in this case after the trial of the Evidentiary Hearing
573
00:28:33.330 --> 00:28:36.180
about enforceability of the arbitration agreement,
574
00:28:36.180 --> 00:28:38.810
Judge Woodlock, I think it's footnote three,
575
00:28:38.810 --> 00:28:41.630
of his decision said that it is derivative in that
576
00:28:41.630 --> 00:28:43.660
it's the same set of operative facts
577
00:28:43.660 --> 00:28:45.750
that in order to prove negligence
578
00:28:45.750 --> 00:28:48.160
under clause one of the Wrongful Death Statute
579
00:28:48.160 --> 00:28:50.690
or clause two, they're the same elements
580
00:28:50.690 --> 00:28:53.530
in that you have Duty, breach, causation and damages.
581
00:28:53.530 --> 00:28:57.290
Damages being the death of the resident.
582
00:28:57.290 --> 00:28:59.970
He finds no distinction between those magic words
583
00:28:59.970 --> 00:29:04.620
that this court has been understandably struggling with
584
00:29:04.620 --> 00:29:07.160
in terms of why they're in sections two and four
585
00:29:07.160 --> 00:29:10.400
but not one of three because they're the same elements
586
00:29:11.982 --> 00:29:14.070
of proof in whether its negligence
587
00:29:14.070 --> 00:29:16.380
or negligence under the circumstances
588
00:29:16.380 --> 00:29:19.300
under which the defendant may have recovered.
589
00:29:19.300 --> 00:29:22.350
Now if Mr Veil were allowed to speak on rebuttal
590
00:29:22.350 --> 00:29:26.353
which he will not be, he would say there is a waiver.
591
00:29:26.353 --> 00:29:28.753
There's a waiver to the right of the jury trial.
592
00:29:30.670 --> 00:29:33.100
Why should they be bound by the waiver
593
00:29:33.100 --> 00:29:34.520
of the right to a Jury Trial?
594
00:29:34.520 --> 00:29:36.220
They don't have the right to decide it.
595
00:29:36.220 --> 00:29:38.080
Under the statute the Executor determines
596
00:29:38.080 --> 00:29:40.010
where that single action is filed.
597
00:29:40.010 --> 00:29:42.010
They don't have a right as if we had the two
598
00:29:42.010 --> 00:29:44.130
or the seven folks in terms of,
599
00:29:44.130 --> 00:29:46.230
where we going to litigate this case?
600
00:29:46.230 --> 00:29:49.630
Whether it's jury-waived or whether it's gonna be arbitrated
601
00:29:49.630 --> 00:29:52.660
and I believe Judge Kafker sit in the first case today
602
00:29:52.660 --> 00:29:57.270
that this legislature, we hope, writes workable statutes
603
00:29:57.270 --> 00:29:58.990
and to have a workable statute here
604
00:29:58.990 --> 00:30:00.200
under the Wrongful Deaths Statute,
605
00:30:00.200 --> 00:30:02.070
there has to be a single action
606
00:30:02.070 --> 00:30:04.290
because it has been before the court
607
00:30:04.290 --> 00:30:06.720
but how many beneficiaries in this case?
608
00:30:06.720 --> 00:30:09.450
The Wrongful Death Statute certainly doesn't contemplate
609
00:30:09.450 --> 00:30:12.160
seven beneficiaries having seven different actions.
610
00:30:12.160 --> 00:30:15.070
It says you cannot have that you'll have a single action.
611
00:30:15.070 --> 00:30:18.340
So they're not wearing any substantive rights
612
00:30:18.340 --> 00:30:19.830
because they don't have the right to waive.
613
00:30:19.830 --> 00:30:22.360
It's the Executor who makes that decision.
614
00:30:22.360 --> 00:30:23.833
Not the beneficiaries.
615
00:30:25.420 --> 00:30:27.611
I'm really confused then, about why the Federal Court
616
00:30:27.611 --> 00:30:28.444
is so interested in whether or not
617
00:30:28.444 --> 00:30:32.030
it's derivative or independent.
618
00:30:32.030 --> 00:30:36.020
I think because the cases from other jurisdictions
619
00:30:36.020 --> 00:30:37.420
and they're cited in the brief.
620
00:30:37.420 --> 00:30:40.502
That is how the other courts have determined.
621
00:30:40.502 --> 00:30:43.123
And you think it's all settled in Massachusetts already?
622
00:30:44.340 --> 00:30:46.840
What I think it's settled is Wrongful Death Act.
623
00:30:46.840 --> 00:30:49.820
The clause of the statute that determines the outcome
624
00:30:49.820 --> 00:30:50.890
of this case is settled.
625
00:30:50.890 --> 00:30:52.032
There shall be a single action.
626
00:30:52.032 --> 00:30:53.490
Would that be what was controlled by.
627
00:30:53.490 --> 00:30:55.683
Would that be controlled by the order in a different case
628
00:30:55.683 --> 00:30:59.253
with the logic in a different case by Judge Zobel?
629
00:31:00.520 --> 00:31:01.353
I'm sorry--
630
00:31:01.353 --> 00:31:03.020
Wasn't there different order
631
00:31:03.020 --> 00:31:05.150
in a different cases by Judge Zobel
632
00:31:05.150 --> 00:31:06.300
coming out a different way?
633
00:31:06.300 --> 00:31:08.490
In a federal District court there was.
634
00:31:08.490 --> 00:31:12.590
And so, how does this that affect this at all or not?
635
00:31:12.590 --> 00:31:16.460
It just presents contrary opinion or?
636
00:31:16.460 --> 00:31:17.970
It's contrary to Judge Woodlock who,
637
00:31:17.970 --> 00:31:20.230
in his decision in this case, specifically disagreed
638
00:31:20.230 --> 00:31:21.490
and identified why.
But they're basically
639
00:31:21.490 --> 00:31:25.190
based on the same underlying legal claim, right?
640
00:31:25.190 --> 00:31:26.023
Yes.
641
00:31:26.023 --> 00:31:26.856
Okay.
642
00:31:26.856 --> 00:31:28.320
The last thing to answer your question, Your Honor,
643
00:31:28.320 --> 00:31:29.950
about whether it's derivative,
644
00:31:29.950 --> 00:31:34.670
I believe 41 States have considered whether or not
645
00:31:34.670 --> 00:31:38.080
the consortium claims under a Wrongful Death Statute
646
00:31:38.080 --> 00:31:39.100
are derivative or not.
647
00:31:39.100 --> 00:31:43.360
27 of the 41 have decided that it is derivative.
648
00:31:43.360 --> 00:31:45.600
And again that is the language that has been used.
649
00:31:45.600 --> 00:31:46.433
But it's not it settled
650
00:31:46.433 --> 00:31:47.266
in Massachusetts, is it?
651
00:31:48.610 --> 00:31:49.900
I don't think that the term
652
00:31:49.900 --> 00:31:51.930
whether its derivative for certain purposes
653
00:31:51.930 --> 00:31:53.370
has been specifically decided
654
00:31:53.370 --> 00:31:55.880
and the question that I have is whether or not,
655
00:31:55.880 --> 00:31:57.983
that's the real term that should be used.
656
00:31:57.983 --> 00:31:59.330
But that is the term that Judge Woodlock
657
00:31:59.330 --> 00:32:00.937
uses any certification, is it not?
658
00:32:00.937 --> 00:32:01.770
Correct.
659
00:32:02.895 --> 00:32:05.340
Where I asked can you decide that question?
660
00:32:05.340 --> 00:32:07.650
Correct and I, for the reasons in the cases I cited,
661
00:32:07.650 --> 00:32:08.720
I say that it is derivative
662
00:32:08.720 --> 00:32:11.430
because it's the same elements of cause of action.
663
00:32:11.430 --> 00:32:14.290
They're the same limitations on any recovery.
664
00:32:14.290 --> 00:32:16.393
The same procedural defences apply.
665
00:32:17.410 --> 00:32:19.800
The Statute of Repose et cetera.
666
00:32:19.800 --> 00:32:23.200
Because it arises from the same set of operative facts
667
00:32:23.200 --> 00:32:24.520
and that's what this court has held
668
00:32:24.520 --> 00:32:26.223
and said that it is symbiotic.
669
00:32:27.190 --> 00:32:28.110
Thank you.
670
00:32:28.110 --> 00:32:29.190
Thank you, Judge.
671
00:32:29.190 --> 00:32:30.523
We'll do our morning break.