-: SJC-13282, Michael Cutie,
and another V, Philip Morris, USA Inc.
And SJC-13346, Mary Fuller,
and another V, RJ Reynolds Tobacco Company and others.
-: Great. Okay, let's start with Attorney Moxon.
-: Thank you, Chief Justice Budd.
May it please the court,
I'm Shea Moxon, on behalf of the plaintiff,
Grace Fabiano, Personal Representative
of the estate of Ralph Fabiano.
Ms. Fabiano timely filed her wrongful death action
within three years after Mr. Fabiano died.
But the trial court dismissed it
because the time for filing a personal injury action
had expired before Mr. Fabiano passed away.
And that was error,
and this court should reverse
because the legislature has made its intent clear,
that the only time limit that has any bearing
on the viability of a wrongful death action,
is the one set forth in the wrongful death statute,
three years after death.
-: Well, what if, as we have held,
that this is a derivative action?
I mean, how do we reconcile the derivative nature
of the wrongful death action
with this three year statute of limitations
that suddenly revives upon death,
an action that has been dormant?
-: The, as I discussed in our briefs,
the, the principle of derivativeness,
is useful to address issues that
have not been specifically considered by the legislature,
or addressed in the wrongful death statute.
But here, we have
a pretty unique situation in Massachusetts,
where I, in addition to the plain language
of the statute,
we have the fact that this legislature,
at one time put a provision in the statute,
that clearly meant exactly the same thing
that the trial court ruled here,
and then subsequently deleted that
very provision in 1981 amendment to the statute.
And I'm referring to the provision that said,
"No recovery shall be had under this section
"for a death that does not occur
"within two years after the injury which caused the death."
-: Isn't it clear though,
from the context that that was
to address the discovery rule?
-: No, Your Honor,
because this was put in the statute in 1958,
the same legislation that
created most of the statute in its current form.
So it was added in the statute in 1958
when no one was even thinking about discovery rule.
I don't think it was even discussed or considered
until around 1974.
And the, it was a,
the discovery rule was created by the court originally.
So, but- -: What I mean by that is,
a two year, a rigid timeframe
doesn't accommodate a discovery rule.
-: I, well, yes, but I submit that,
in 1958, no one was considering the discovery rule,
but some significant things that were true in 1958,
is that the statute of limitations
for a personal injury claim was two years.
And because there was no discovery rule in effect,
that ran from the date of injury.
So when the legislature initially required,
that the death had to occur within two years for in,
two years after injury to have a wrongful death claim,
that meant precisely,
that there was no wrongful death action
if the personal injury limitations period ran out
before the decedent died.
And so by deleting that provision in 1981,
the legislature made clear its intent
that that shall no longer be the case.
And it- -: You seem to be having a,
a debate with opposing counsel on these out-of-state cases,
from with, where the action's considered derivative
wrongful death cases, and- -: Yes.
-: And their view is that in every case,
I can't remember how many jurisdictions, may be 18,
in every case where the action is derivative,
the statute of limitations is tied to
the action that the decedent would have.
And you, and you refute that and say that
their take on those cases is wrong.
Could you help us out on that please?
-: Yes. In the instance of four states,
West Virginia has rejected the,
the defendant's proposition completely.
And there are, I've discussed the Hoover's Administration,
Hoover's administratics case,
which thoroughly rejects the defendant's position.
And there are later West Virginia cases
that may clear that West Virginia is a derivative state.
Colorado has rejected the defendant's position,
and Colorado has also made clear
that it's a derivative state.
In Mississippi, I believe the defense have
misunderstood the case law somewhat.
It's a little confusing slightly,
because in Mississippi,
survival claims and true wrongful death claims
are both brought under their wrongful death statute.
But Mississippi has said that
it's only survival claims
that need to be initiated within the
same limitations period as for a personal injury action,
whereas for true wrongful death claims
for the survivor's own damages,
that period does not commence running until death.
And then in Connecticut,
kind of a similar divide,
Connecticut says that only wrongful death cases
based on a statutory theory of liability,
have to be initiated within
the underlying limitations period.
But that's not true for those that are based on common law.
But also another significant point about-
-: But before you- -: Those are the holdings.
Can you tell us the rationale?
How do we reconcile this three year statute of limitations
with the action being defined derivatively?
-: Oh.
-: And what you've just done,
is summarize the out-of-state holdings, but-
-: Yes. -: What is the rationale?
-: The rationale in West Virginia,
the rationale was that the requirement
to be able to file for the decedent
to have been able to sue,
only had to exist at some time,
not necessarily at the very moment of death.
And also the rationale that
statutes of limitation only act on the remedy,
not the right.
They don't, it's, it's a substantive procedural
distinction that the expiration of a limitations period
does not extinguish a substantive right.
In Colorado, it's likewise that-
-: So here, the substantive right was extinguished
for the decedent.
-: Well, it's, well I submit, no,
but I, I want to get back to the point that before we,
without even needing to get into
the more abstract principle of substantive
versus procedural, it's again,
it's a significant point that the legislature
has specifically considered this very issue
that at one time-
-: Right. So I understand the legislative history,
perhaps being on your side, or perhaps,
you know, being a response to the discovery rule,
but, but the action itself
is tied to the individual who has been injured.
And that, in this case has expired.
-: Well, it's, well, you know,
acknowledging that our main argument
is based on the sub,
on the legislative history,
the point discussed in the West Virginia case,
and that's consistent with Massachusetts law,
is that- -: Before, before you leave,
-: before you go outside the state,
can I follow up on Justice Wendlandt's question though?
'Cause we also have the word,
"under the circumstances," right?
That appears in the statute.
And so you re, recover under the circumstances of,
if the defendant, if the injured party could recover,
then the, the wrongful death plaintiff could recover.
Doesn't "under the circumstances,"
isn't that consistent with the derivative language
and plain language?
And that "under the circumstances,"
language has been in effect since the beginning, right?
It's not, it's not changed.
It pre-existed the 1981 amendment, right?
-: Well, yes, but in that very same legislation in 1958,
which added that clause to the,
the "under such circumstances" clause to the statute,
the legislature could not have possibly thought
that that would mean
that the expiration of the time
to file a personal injury action
during the decedent's lifetime,
would bar a wrongful death action,
because it found it necessary to put
a whole different provision in the statute,
towards the end that meant that very same thing,
which is that division that said,
"No wrongful death remedy is available
"for a death that does not occur
"within two years after injury."
-: But doesn't that mean,
the, the trial, the motion judge doesn't
say that it has to happen within,
it, it's not the same provision,
it's within three years of the time in which it,
as long as you met the statute of limitations,
you have three years, right?
That's different from this 1981 provision,
which had a sort of a rigid end date.
I'm just trying to make sense of all the different language.
-: Correct. Yes. Yes.
And thank you.
My point is that in 1958,
that provision that was later deleted,
had precisely the same meaning,
that as, that the expiration
of the limitations period for a personal injury action,
during the decedent's lifetime
would bar a wrongful death action,
because in 1958, that period was two years after injury.
-: But wasn't it an additional, an,
okay, if we're back in fift,
before the 1990, '81 amendment.
-: Yes. -: So you had to
do it with, "under the circumstances."
You had to meet the, "under the circumstances,"
and you had to meet that two year provision, right?
You had to not only be "under the circumstances,"
but it had to be within two years of the injury, right?
-: Yes. So it was both.
-: And then they eliminated the second part of it,
but they kept the first part in, right?
-: Yes. And, my point was that in 1958,
when the legislature wrote the
"under such circumstances" clause,
it could not have possibly thought
that that meant the expiration
of the personal injury limitations period
during the decendent's lifetime would bar
a wrongful death action
because it had written another
clause that said that far more directly,
and explicitly being that no recovery
shall be had under this section,
for a death that does not occur
within two years from injury.
-: So, counsel, otherwise, and correct me if I'm wrong,
if this, if we don't adopt your position,
what would happen is that if a person figures out
they have lung cancer from smoking,
and they have a long, long period before they die,
they could never have a wrongful death suit.
-: That's correct. That's correct.
And, and that is one of the reasons why
the legislature could have reasonably decided
to no longer follow that rule that
they adopted in '58.
They may have considered that,
in those circumstances that they,
a person with a disease like that,
should not be forced to
have to file a personal injury claim
to possibly preserve a wrongful death claim.
The legislature decided that
families shall have a remedy for death,
and that the only time limit
that bears on the availability of the remedy,
is the one that still remains in the statute today,
three years after death,
without any connection to the time of injury,
or any other statute of limitations.
-: So that would be true
even if there were an accident
at the corner of May and Elm 10 years ago,
and the plaintiff could unequivocally show causation,
as it relates to death,
even though the statute of limitations
on the underlying claim of the would be decedent,
elapsed seven years ago, -: Yes.
-: That the wrongful death statute
would resurrect that cause of action.
-: Yes. Although with resurrect, again-
-: Well, I think resurrect, I hear your point.
-: He likes that one.
-: Let, let me, let me take that back.
That's, that's sort of a term that
maybe doesn't make the point as well.
The cause of action would still exist for wrongful death,
even though the decedent's cause of action
on the underlying tort expired years ago.
-: Yes, yes. And because the legislature
has made that decision,
we submit, also because a statute of limitations
does not extinguish the underlying substantive right.
And if the legislature decides
that that allows too long of of a tail for liability,
the legislature always could enact a statute of repose,
as it has for architects and medical malpractice cases.
But at present,
it has made its decision that
the only time limit that applies
to a wrongful death action,
is three years after death,
no other time limit or the date of injury
has any bearing on it.
And I'm out of time, so I thank the court.
I stand on my briefs for any points I didn't reach,
and I ask the court to reverse.
-: Thank you. Okay, Attorney Rainer.
-: Good morning. I'm Andrew Rainer.
I'm the Litigation Director
for the Public Health Advocacy Institute.
And I represent the plaintiff in the Fuller case,
which is the other case before the court.
In the, in the three minutes allotted to me,
I want to urge the court not to decide the case,
based on a theoretical construct about
what does derivative mean.
Because that actually diverges state to state.
And also not to decide the case,
based on how other wrongful death statutes
have been interpreted,
but rather to decide the case
based on the unique legislative history of this case,
which we've been discussing.
And Justice Kafker, you,
on page 44 of my opening brief,
I have the statute as
more or less it appeared in 1958,
and it had three clauses.
It had the "understood circumstances clause,"
it had the "no recovery shall be had clause,"
and it had, for the first time,
the limitations period based on death.
So these were all new in 1958.
And what my brother was I think,
attempting to say,
is if the second clause
meant what the first clause,
you were being urged to interpret the first clause
to mean what the second clause meant.
-: First clause being which one?
-: The "under such circumstances" clause.
That's what, that's- -: And the second clause being-
-: I'm sorry. The second clause being the,
"no recovery shall be had
"for an injury that occurred within two years of death."
That's the one that was repealed.
-: And but they kept the "under the circumstances."
So. -: But my point, my point,
and I think my brother's point is,
if that meant what you are being...
You are being asked to hold
that the statutes would be interpreted
exactly as this provision held.
And what I mean by that,
I mean that it's said, that you couldn't,
if the person died after the personal injury
statute of limitations had run, you couldn't bring it.
But if the person died within it, you could.
And that is exactly the position
that the (indistinct) have taken.
-: What does, "under the circumstances mean?"
'Cause it has to have some meaning.
-: Well on that, Your Honor,
I would ask you to look
at the prior version of the statute from 1949.
Because what you'll find there is,
there was a separate provision for,
if a death was caused by a street car.
There was a separate provision for if a,
a death was caused by, on a public way,
but not by a street car.
There was a separate provision for,
if a death was caused if you, by an employer.
And so in 1958, they repealed those other distinctions,
and left only and, and basically captured that
in the "under such circumstances clause."
So I respectfully submit it was not,
it was not the interpretation
that you were being asked to hold today.
It is not, that language was not-
-: Right, but, but the,
I can't remember if you or your brother makes the argument
that "under the circumstances" mean, okay,
comparative negligence or, you know,
if they, they couldn't recover.
But I, I don't, I don't know if that's correct,
but I'm just trying to...
Because the only language that seems
to track the derivative language
is "under the circumstances."
And also, it's hard to try to figure out
what the le,
I mean, the legislature didn't have the benefit of
our decision in 2022 or whatever it is
when it wrote the statute of limitations in this thing.
So reading it backwards is kind of counterintuitive,
but at the same time,
"under the circumstances" is derivative language,
and it's the only derivative language in the statute.
So I'm trying to figure out what it means.
So help tell me what you think it means.
-: I think it meant as, as I, and I, and honestly,
if you look at the 1949 version,
and I believe it's in one of the briefs,
but if it isn't, I'll certainly provide it.
The 1949 version articulated
multiple different circumstances,
including the point, Your Honor just raised,
the comparative fault.
If you, you will find detailed different provisions.
Some that said it depends on comparative fault.
I believe that was the one with respect to the employer.
There was a different one
for if it was caused by a railroad.
It was a different one
if it was caused by a different kind of common carrier.
There are literally four.
And in 1958, they repealed all of the others,
except for the, I believe the employer one they left in.
And then they put that
"under such circumstances" language
in section two to capture.
-: Does that mean that,
that Schroeder and Doherty were wrong?
-: Well, I understand that Your Honor wrote them,
and I understand that there is a trend in the United States
to find wrongful death actions to be derivative.
But I honestly think that
the intention of that language was something different
from what Your Honor found.
Now, can you still- -: But can you tell us
what it was,
you're saying what it was not.
Can you tell us what you,
in your estimation, "under such circumstances" was, what?
-: So, if you look at the first section of section two,
the first subpart, -: Yeah.
-: The first subpart talks about negligence.
The second subpart talks about willful wanton
or reckless conduct, which is not a cause of action.
Wilful wanton and reckless conduct is, is a scienter.
And so it coupled the scienter with the notion of,
could you bring the action under some common law theory?
Could you bring it under,
for, against a municipality under section one
for not properly maintaining the roads?
Could you bring it under section 2A for streetcars?
Could you bring it under section 2C for railroads?
And each of those contained, as I said before,
each of those contained different provisions
for whether comparative fault applied.
Some did, some didn't.
There was also the fact that a husband at the time
couldn't sue a wife.
That was a separate limitation on whether,
on such circumstances.
So no, I'm not, I'm not here, Your Honor,
to say, "Oh, you must reverse what you did."
But what I am saying,
is that if you were going to give effect
to the legislative history,
you have to give effect to that second clause,
the no, the "no recovery shall be had" clause,
as well as the "under the circumstances" clause.
You have to give effect to both.
And when the legislature repealed this,
I respectfully submit that they repealed it
for the reason that the Fuller case represents,
which is, Mr. Fuller is struggling,
dying from lung cancer.
He is going through excruciating treatments
right at the time
when a personal injury action would've had to been,
when he would've had to brought it.
And I respectfully submit that the legislature intended
not to impose that burden on Mr. Fuller,
but to impose, to allow his heirs, the survivors,
who are the beneficiaries of the third clause,
to bring the action,
to allow the heirs to come along and say,
"Now that there's time to figure out
"whether we wanna bring this action,"
"instead of making a decision
"when the person is suffering,
to make the decision within three years of death.
And that is what I ask Your Honors to find.
Obviously I used way more than my time,
so I thank you very much.
-: Okay. Thank you.
Attorney Chessen.
-: Thank you. May it please the court,
Scott Chessen from Shakarde for the appalease
in the Vapiano case.
Your Honor, this case,
these cases are controlled
by Your Honor's decision in GGNSC two years ago,
where this court held that the beneficiaries
of a death action,
can sue only if the decedent would still be
in a position to sue,
which is what Justice Wendlandt
has been asking in various forms,
to both advocates who preceded me.
The court held that wrongful death actions
in this state are derivative of and dependent on
the continuance of a right in the decedent
to maintain an action for his injury
up to the time of his death.
-: So counsel, can I ask you? -: Yes, absolutely.
-: I'm sorry.
-: Go ahead please. -: Oh, thank you.
Can I ask you then to explain this legislative history
that you're opposing, cousnel?
-: That's exactly where I was going to go.
-: Well good.
(laughing)
-: So we're all thinking the same thing.
-: There you go.
-: So- -: Big softball.
-: The provision that was deleted in 1981,
was very different from and far harsher than
the "under such circumstances" clause,
which existed then and exists now.
That provision said that
"no recovery shall be had under this section,
"for a death which does not occur
"within two years after the injury that caused the death."
Meaning, that a person who,
like the sort of hypothetical
litigant we've been discussing in the
briefs and this this morning;
a person who is injured a day later,
a year later, within the statutory period,
files a lawsuit, that lawsuit is pending,
and then, you know, a day later, a year later, et cetera,
that person dies,
even if that person had complied with everything,
even if that person had met the
statute of limitations for personal injury,
under the prior statute,
his or her heirs could not bring a wrongful death suit
because it was, it, there was no provision.
-: I'm gonna ask you to be more basic.
Hold our hand right through why
the 1949 legislative history,
and all the different provisions were in it,
does not support the appellants position.
-: Here's my, here's my point.
Absolutely. So in 1958,
the statute that existed at the time was repealed,
and replaced with simple language that said
that, "a wrongful death action can be brought for a person,
"against a person who causes the death of a person,
"under such circumstances that the deceased
"could have recovered damages for personal injury,
"if his death had not resulted."
The idea was to eliminate all of the varied...
I agree with Mr. Rainer,
that there were a number of different circumstances
under which, that were enumerated in the statute.
And this statute was in intended,
I assume, to,
to eliminate the like exlusio un es est,
whatever, I don't speak Latin.
But the point, the proposition that there are
certain types of claims that
because they are not enumerated in the statute,
cannot be brought.
This is broader language. -: So, under your situ,
your interpretation of everything,
if the defendant, if the plaintiff,
say like as such as in this case,
one of them gets diagnosed in 20, 2004,
dies in 2012 or or 2015,
if they had brought their personal injury action,
and settled it, and recovered it,
or had gone to trial, whatever,
it's over, they brought it, it's over.
What happens then to the statute of limitations?
-: Well- -: On the wrongful death case?
-: If I can permissively break that question down into,
into two pieces.
If the, the situation that Your Honor is presenting,
is a situation that I don't think
there's any dispute among the parties about,
'cause at least in the Fabiano case,
the plaintiffs say this in their brief.
If there is a personal injury suit
that is resolved definitively
during the lifetime of the decedent,
then there's no wrongful death action at all.
You know, timely or not,
either because of (indistinct)
because there's been a, a resolution,
or if that suit is settled,
or resolved, or released.
Because as this court held in GGNSC,
the wrongful death action is derivative
of the personal injury action. Justice Lowy,
what you wrote in the beginning of that opinion,
is that the, the right to dispose of
the personal injury case,
according to the derivative theory,
belongs exclusively to the injured party.
And there are good reasons why that may be,
and Your Honor distinguished it from independent regimes,
where, and a legislature is free to do this,
and a lot of legislatures in this country have done so
where they have said it doesn't matter
what the decedent did, these are separate injuries,
these are separate rights.
But what this court held unanimously two years ago,
was that this legislature in this state,
determined that the wiser course of action
was to tie the rights of the beneficiaries
to the rights of the decedent.
-: It's also a footnote though in Schrader that,
footnote 11 that points out that
"Any of our interpretation of the common law,
"must therefore recognize that chapter 229 sets forth..."
And then it lays out what it sets forth.
And then one of the things that is referenced
it sets forth, a statue of limitations.
I suppose you're the wrong person to ask this question,
but couldn't you interpret that, that,
that footnote as saying,
"Well we recognize there's a
statute of limitations issue here as well,
and we're not digging into that this moment?
-: Well, I mean, Your Honor certainly has me
at a disadvantage in the sense that you wrote
the opinion in that footnote and I did not, so.
-: That's why you're the wrong person to ask.
-: You know what was, what was in your mind and I don't.
-: He was talking to himself this morning.
Don't worry. -: But, I will say this;
If I were, if I were anywhere in this state
other than in this room,
if I were down the hall and I were,
I were arguing to a tribunal
that is bound by GGNSC or Schrader,
I would say, "I think that opinion is as clear as day,
"that the dividing line between viable
"wrongful death claims,
"and non-viable wrongful death claims,
"is whether at the time of the decedent's death,
"he quote, would still be in a position to sue."
And the reason for that,
and Your Honor went through the reasoning,
you said, "Number one, there's that
"under such circumstances" clause,
which again is very clear.
It says a person can be sued for wrongful death
if he causes the death of a person
under such circumstances where the
deceased could have recovered damages.
Two parts to that; causes the death at a time.
So in response to my, my brother's suggestion that,
-: And can you-
-: And I don't mean to cut Justice Lowy off,
or you, but one thing I don't understand is,
the "under such circumstances" only,
it doesn't appear in every clause, right?
It doesn't appear in the breach of warranty clause,
and other parts.
-: It also doesn't appear in the negligence clause.
So, and the court dealt with this in GGNCSC,
at least in part.
So, what the court...
In GGNSC, there was a negligence claim.
And so what the court said is,
"We recognize that under such circumstances
appears in the willful and wanton clause,
but not in the negligence clause.
But those two things are combined in the disjunctive,
and so we read the clause as modifying both.
Your Honor certainly could hold that
with respect to each warranty.
-: But how do we, how do we do that?
'Cause it's a little harder with breaching warranty.
This is exactly where I was going.
I see plaintiff's point,
that breach of warranty comes after the clause,
whereas negligence comes before.
So you have to squint a little harder at that sentence
in order to do that.
But here's what I would say;
again, and I'd direct it back to that opinion
from two years ago.
What the court said is,
because of the the "or" in there,
we think the clause modifies both.
"But in any event," Your Honor said,
"there are multiple other indications in that statute
"that the statute was intended to be derivative."
For example, the court wrote,
"The elements of a negligence based wrongful death claim
"are the same as the elements of a personal injury based,
"a personal injury negligence claim."
The the elements overlap.
The same is true for breach of warranty.
Your Honor also said,
the structure of the whole statute,
the fact that the claim for wrongful death
can only be brought by the administrator
of the deceased's estate.
The fact that, and not by the beneficiaries themselves,
the fact that there's only one action,
even if there are multiple beneficiaries,
all contributes to the conclusion that this court drew,
that the legislature when it wrote this statute,
like the legislatures in the majority
of states around the country,
intended the rights of the survivors
to be tied to the rights of the decedents.
And the fact is also,
I've been thinking a lot about
this breach of warranty question,
'cause I, I'm with you, that it's harder
to read the "or" as doing the work in this case,
as it did in the prior case.
But even if you consider
the breach of warranty clause in isolation,
I think it's pretty clear on its face
that it's meant to be derivative.
'Cause what the clause says,
is wrongful death claims can be brought
against someone who is responsible for
a breach of warranty under
Article II of chapter 106.
It's the UCC.
You got the, the Uniform Commercial Code.
It references the Uniform Commercial Code.
One cannot be responsible for a breach of warranty
under the UCC legally,
if one is not sued within three years.
There is a statute of limitations right there
in Article II of section 106,
that has to be met before anyone
can be judged responsible.
-: So attorney Chessin,
how should the plaintiffs have gone about this?
How would they have been able
to sue for a wrongful death?
-: The same as any other plaintiff
under any other circumstances.
If a person is injured,
the legislature gives that person a certain amount of time,
not from injury,
but by virtue of the discovery rule,
from a accrual of the claim,
to bring a lawsuit.
I mean Mr. Fuller for example,
and that's, yeah, Ms. Powell will discuss
this in greater detail I imagine.
Mr. Fuller actually did sue.
So he brought a 93A claim.
He didn't bring personal injury claims.
Those claims were then expired by the time.
-: So you're saying that say someone does bring their,
bring a negligence claim or, or whatever,
it's settled, then there's no
wrongful death claim to be had.
-: I, and this is why I try, the answer is yes.
And where, where I said I wanted to break
Justice Sypher's question down into two parts.
Where I'm getting hung up is the, "and it's settled."
I don't even think there's a dispute,
that if there is a settled claim-
-: My only point is there's no wrongful death action.
-: So the- -: That, that is true.
And I'm just saying-
-: They, they just get to get off, right?
-: Well no, they don't get to get off.
They have liability to the decedent.
I mean look- -: But they wouldn't
have liability to the family members
who could bring the claim? -: Correct.
Which is, I believe what this court thought
was the intention of the legislature
when it decided the last two cases.
There are a number of circumstances in which,
an injured party through either action,
or conscious inaction,
I say conscious inaction because the premise
of a discovery rule,
appended to a statute of limitation,
the premise is that a person who doesn't sue,
does so knowingly.
You don't accidentally,
at least constructively
fail to meet a statute of limitations.
You have three years from when you are injured,
and you know, or have reason to know.
-: What if they keep smoking,
and it's a continuous injury?
-: Say that again. I'm sorry.
-: What if they keep smoking?
Wouldn't it be a continuous tort?
-: I mean, I suppose, if they could prove
that only the smoking within the last three years
by itself was a necessary or sufficient.
-: A cumulative effect.
-: Excuse me. -: So there is a
moment in time, one moment in time,
not a cumulative effect?
-: Well, a statute of limitations runs from
accrual of the claim.
Accrual of the claim is when you are injured.
So, I mean, I suppose a person who is injured,
knows that he's injured,
allows the statute to lapse,
and then sues 10 years later,
if, if they're suing for
the additional damages they incurred
over the course of the proceeding three years,
I think that would probably be a viable claim.
But if they're suing for
the injury that they had 10 years before...
I see my red light is on.
I'll end this way.
The, here's the gist of what I'm hearing
from the court.
And I apologize if I'm getting it wrong.
I'm sensing some concern about
what the plaintiff's called the,
the inequity of cutting off claims of people
who would otherwise have valid claims.
And I, and I hear that,
and Justice Davis discussed this
in the decision that is under review.
Any time a legislature puts any kind of
time limit on a claim,
whether it's a statute of limitations,
or a statute of repose,
or anything else,
that has the effect of cutting off the...
There's some subset of the population
that would otherwise be entitled to recover,
that isn't because of this procedural default.
-: There, there's a different concern though within that.
And I think Chief Justice Budd
and Justice Sypher's questions
get at that little bit different concern,
which is there's, there's,
there's no remedy for the death,
there's no remedy for the wrongful death.
There's implications for loss consortium.
I think that's implicit in the questions as well.
-: And I, I appreciate the clarification.
And what I'm getting at is,
that, that is the holding
in the prior two cases,
that there are certain situations
in which a decedent can make choices
that affect the ability of his or her heirs
to collect for wrongful death.
And the legislature has very good reason
to want to do that.
I mean, what Justice Davis said in the,
in the decision under review,
is that this notion of sort of
staccato on again, off again legislature, forget cigarettes.
If I'm a doctor, or a hospital, or an HMO,
or like a medical malpractice insurer,
and I'm trying to order my affairs,
and figure out the extent of potential liability,
how to set premiums, and how to set reserves,
I can be fairly confident
that a procedure that was performed four years ago,
that I haven't been sued for,
is one that I'm never going to get sued for.
Not definitely, 'cause there's a discovery rule,
and there's nuance in it.
But I can order my affairs that way.
If that claim,
if that's true until the person dies,
and then it springs back to life,
there are consequences to that,
which I respectfully submit.
-: Cigarette companies are
a little different from doctors though.
So that's, that's, I mean, I get, I get your point.
-: But- -: My point is,
I'm reading the statute.
I mean, I hear you.
-: And so that's what we're gonna figure out
-: Right. I'm reading the statute,
and I'm reading this court's decision.
And what this court said in its decision was,
the legislature chose to make these claims
derivative for a reason.
Thank you. I appreciate you guys so much.
-: Thanks so much.
Okay, Attorney Powell.
-: Thank you, Chief Justice.
May it please the court.
My name is Victoria Powell.
I'm appearing on behalf of RJ Reynolds Tobacco Company
and Cumberland Farms Incorporated.
I wanted to start by addressing
some of the questions that were asked
about how to reconcile the wrongful death
statute of limitations with
the derivative nature of the wrong,
of the wrongful death action.
And the point that I wanna make,
is that the wrongful death statute of limitations
is still doing independent work.
So the statute of limitations kicks into place,
only when the decedent at the time of his death,
had a viable injury.
So when the decedent is not still in a position to sue,
there is no cause of action for wrongful death.
And the statute of limitations,
and the wrongful death statute doesn't apply.
So it really doesn't matter
if that statute of limitations
is one year or 50 years,
if there's not a cause of action
that the injured person could bring,
then they're that wrongful death
statute of limitations doesn't, it's not triggered.
But the wrongful death statute of limitations
is still doing independent work,
because so long as the decedent was
in a position to sue,
it gives the beneficiaries a new three year period.
-: There was only one day left.
-: Exactly. So if there was one day left for the,
for the injured person to bring
a cause of action on the date of death,
then the beneficiaries have a new
three year period to bring
a wrongful death action.
-: Our issue goes back to the question,
just as Wendlandt asked this morning,
and it really is.
Is there anything about the action being derivative,
as it might relate to a waiver of claims,
or a willingness to arbitrate,
in any way different as a matter of reasoning,
from a statute of limitations? -: Not at all.
-: Why? -: Because in all
of those situations,
the decedent is not still in a position to sue.
So it really doesn't matter
what the underlying defense is.
As this court explained in Schrader,
the wrongful death action
is a continuation of the personal injury action.
So, and for any reason,
the decedent would not still be in a position to sue,
then there can be no recovery
under the wrongful death statute.
But if the decedent is in a position to sue,
even if they only have one day left
on the statute of limitations, the time of death,
then they, this beneficiaries have a new
three year period to bring a wrongful death action.
-: But, but there's one difference
between our prior cases and this one,
which is we have, we have expressed statutory language.
And again, the legislature wrote this
long before we wrote our two decisions from what,
the 2020 timeframe, right?
So it's just hard to read back into this derivative nature.
We have to, don't we have,
does it really depend on the exact language?
Because I mean, we gotta interpret
what the legislature meant, not what we said, right?
-: Yes. But I think that you can read
the under such circumstances clause,
and the breach of warranty,
the derivative language,
and the breach of warranty section
that Mr. Chessin pointed out,
consistent with- -: Can you, can you,
that point I lost me a little bit because
the UCC has a three year statute of limitations,
even though our statute of limitations
doesn't even mention the UCC,
we read in that three year period.
That's clever, but I don't know if that's realistic.
-: Yeah, I'll just briefly address that if that's okay.
So the wrongful death statute states
that there's a wrongful death action,
if the defendant is responsible
for a breach of warranty under Article II.
In Article II, there's the breach,
the statute of limitations for a breach of warranty claim.
So a defendant would not be responsible
for a breach of warranty arising under Article II
if the claim were time barred.
-: So does that mean that Article II
statute of limitations trumps,
is totally dominant for statute of limitations
in this wrongful dis, wrongful-
-: Not al all. They're doing different work.
So, the decedent had to be in a position
to sue at the time of his death,
and that's controlled by these, these-
-: But I'm just trying to take your,
this argument about Article II to its logical conclusion.
So Article II has a three year limitation period
for breach of warranty, alright.
And by the way,
is it three years from what,
three years from, in the UCC, what is it?
Three years from what? -: Date of Injury.
-: So three years from date of injury, under the UCC,
will now trump every other aspect of this
in a breach of warranty claim,
meaning, it's basically resurrecting
the 1981 provision for breach of warranty?
-: Not at all, because they're doing different things.
So that 1981 language, it's not,
so, I think the best way- -: Hold on a second.
Again, it says date of injury provision in Article II.
Are we employ,
do we have a date of injury for breach of warranty,
but not the rest of the statute?
-: No, because all,
all that matters is whether the decedent
was able to sue at the time of his death.
So the, Article II tells us whether
the decedent was able to sue at the time of his death.
And so if the Article II is telling us whether
the decedent was in a position to sue
for breach of warranty at the time he died.
But if he was,
even if there's one day remaining
on that three year clock
to bring a warranty claim,
then the wrongful death statute
gives us a new three year period
for the beneficiaries to bring a wrongful death action.
And we outline in our brief,
that there are three different situations,
where a wrongful death action could be brought,
more than three years after the date of original injury.
I'll just struck, that's at page 36,
page 37 of our brief.
So, thank you.