Products Liability Law Reporter

The Massachusetts Supreme Judicial Court held that wrongful death recovery is precluded where the limitations statute on the decedent’s underlying claims ran before the decedent’s death.

Ralph Fabiano began smoking cigarettes at age 15, when he received free samples of cigarettes, including the L&M brand manufactured by Philip Morris USA Inc. Fabiano, who became addicted, continued to smoke L&M cigarettes for the next 50 years. In 2004, he was diagnosed as having emphysema, which resulted from his long-term smoking habit. He died of COPD in 2014. Just under three years later, his estate brought a wrongful death suit against Philip Morris and Shaw’s Supermarkets, Inc., where Fabiano had regularly purchased cigarettes. The plaintiff asserted claims for breach of warranty, negligence, and conspiracy.

John Fuller began smoking Camel cigarettes at age 17 and continued to smoke for more than 40 years. He was diagnosed with lung cancer in 2012. In 2016, he sued R.J. Reynolds Tobacco Co. and Cumberland Farms, Inc., where he frequently purchased his cigarettes, alleging consumer protection violations. After Fuller’s death that year, his estate amended the complaint, adding wrongful death claims based on breach of warranty, negligence, and conspiracy.

The Fabiano defendants moved to dismiss the amended complaint. The Fuller defendants moved for partial judgment on the pleadings with regard to the wrongful death claims. All defendants argued that under relevant case law, the wrongful death claims were barred because the limitations statute had run on the decedents’ underlying claims at the time of their deaths. The trial courts granted the motions, each ruling that because wrongful death recovery is derivative of a decedent’s own cause of action, the plaintiffs’ wrongful death claims were precluded because the decedents could not have brought claims had they survived.

Affirming, the state high court noted that under the state’s wrongful death statute, an action must be commenced within the specified time period, among other things. Citing case law, the court found that because wrongful death claims are derivative based on the language of the wrongful death statute, where an action for injuries leading to a decedent’s death could not have been brought by the decedent had he or she survived, no wrongful death right of action can vest in the decedent’s administrator or representative. The court rejected the plaintiffs’ argument that the wrongful death statute’s three-year limitations period demonstrates the legislature’s intent to allow a decedent’s representative to bring a wrongful death suit within three years of the decedent’s death, regardless of whether the decedent’s claim was time-barred at the time of death. A limitations statute does not create a cause of action that does not otherwise exist, the court reasoned.

Applying these principles here, the court found that because both decedents died more than three years after the injuries that caused their deaths, there were no viable personal injury claims that attached for the decedents’ injuries at the time of their deaths. Therefore, the plaintiffs here were precluded from recovering for the decedents’ wrongful deaths.

Citation: Fabiano v. Philip Morris USA Inc., 2023 WL 4359428 (Mass. July 6, 2023).