Fabiano v. Philip Morris U.S. Inc.

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GRACE FABIANO, personal representative,^[1] v. PHILIP MORRIS USA INC. & others. ^[2]

MARY FULLER, personal representative, ^[3] v. R.J. REYNOLDS TOBACCO COMPANY & another.^[4]

Nos. SJC-13282, SJC-13346

Supreme Judicial Court of Massachusetts, Suffolk, Barnstable

July 6, 2023

Heard: March 6, 2023.

Civil action commenced in the Superior Court Department on July 14 2017. A motion to dismiss was heard by Brian A. Davis, J.

Civil action commenced in the Superior Court Department on March 21, 2016. A motion for partial judgment on the pleadings was heard by Thomas J. Perrino, J.

The Supreme Judicial Court granted an application for direct appellate review.

Shea T. Moxon, of Florida, for Grace Fabiano.

Andrew Rainer for Mary Fuller.

Scott A. Chesin (Elliott M. Davis also present) for Philip Morris USA Inc. & another.

Victoria Cuneo Powell, of Georgia (Jason T. Burnette, of Georgia, also present) for R.J. Reynolds Tobacco Company & another.

The following submitted briefs for amici curiae:

Kevin W. Buono for Massachusetts Defense Lawyers Association.

Samuel Goldblatt & Kurt M. Mullen for Product Liability Advisory Council.

Peter J. Ainsworth, Thomas R. Murphy, Kevin J. Powers, Elizabeth N Mulvey, & J. Michael Conley for Massachusetts Academy of Trial Attorneys.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

LOWY J.

In GGNSC Admin. Servs., LLC v. Schrader, 484 Mass. 181, 191 (2020) (GGNSC), we held that wrongful death actions brought under G. L. c. 229, § 2, are derivative of a decedent's own cause of action for personal injury, and unless the decedent "could have brought an action for the injuries that caused [his or her] death," a wrongful death action cannot be maintained by the personal representative of the decedent's estate for the benefit of the decedent's statutory beneficiaries. The question in these paired cases is whether this principle yields where the decedent could not have brought claims for the injuries that caused his or her death, had the decedent survived, by reason of the expiration of the statute of limitations applicable to those claims.

Grace Fabiano, as personal representative of the estate of Ralph Fabiano, and Mary Fuller, as personal representative of the estate of John Fuller^[5] (collectively, plaintiffs), commenced these separate actions for wrongful death under G. L. c. 229, § 2, alleging breach of warranty, negligence, and conspiracy. It is undisputed that, if Ralph or John (collectively, decedents) had survived, they could not have brought direct claims at the time of their deaths due to the expiration of the three-year statute of limitations. The plaintiffs argue, however, that, because G. L. c. 229, § 2, has its own three-year statute of limitations for commencement of a wrongful death action that begins to run on the date of death, the statute of limitations applicable to personal injury claims, which begins to run on the date of injury, does not apply to wrongful death actions.

In light of the derivative character of wrongful death claims, for a representative of the decedent's estate to have a right to bring a wrongful death action, the decedent must have had the continued right to bring a cause of action for the injuries that caused his or her death. Where a decedent has such a right at the time of death, a cause of action for wrongful death vests in the personal representative of the decedent's estate, and the three-year statute of limitations for the wrongful death action begins to run from the date of death. Where a decedent could not maintain a personal injury action at the time of death, the representative of the decedent's estate has no right to bring an action for wrongful death for the benefit of the beneficiaries. Thus, the three-year statute of limitations for wrongful death actions is not implicated.

In these cases, because the decedents had no right to bring a cause of action for the injuries that caused their deaths at the time that they died as a result of the running of the statute of limitations on the decedents' underlying tort and breach of warranty claims, the plaintiffs, as personal representatives of the decedents' estates, had no right to bring wrongful death actions based on those injuries.^[6] We affirm the judgments dismissing those claims.

Background.

1. Fabiano case.^[7]

Ralph began smoking cigarettes at the age of fifteen when he received free samples of cigarettes, including "L&M" brand cigarettes manufactured by Philip Morris USA Inc. Ralph became addicted to smoking and continued to buy and smoke L&M cigarettes for the next fifty years. Ralph regularly purchased L&M cigarettes from Shaw's Supermarkets, Inc. In 2004, Ralph was diagnosed with emphysema, a form of chronic obstructive pulmonary disease (COPD), caused by long-term cigarette smoking. He died of COPD on July 22, 2014. Just under three years later, on July 14, 2017, Grace, as personal representative of Ralph's estate, brought this wrongful death suit against Philip Morris USA Inc. and Shaw's Supermarkets, Inc. (collectively, Fabiano defendants).^[8] Grace's amended complaint asserted wrongful death claims based on breach of warranty, negligence, and conspiracy. See G. L. c. 229, § 2.

2. Fuller case.

John began smoking "Camel" brand cigarettes manufactured by R.J. Reynolds Tobacco Company at the age of seventeen and continued to do so for over forty years.

John frequently purchased Camel cigarettes from Cumberland Farms, Inc. In 2012, John was diagnosed with lung cancer caused by long-term cigarette smoking. On March 21, 2016, Mary and John brought a suit against R.J. Reynolds Tobacco Company and Cumberland Farms, Inc.^[9] (collectively, Fuller defendants), alleging liability under G. L. c. 93A. John subsequently died from lung cancer on November 13, 2016. On September 11, 2017, Mary, as personal representative of John's estate, amended the complaint, adding wrongful death claims based on breach of warranty, negligence, and conspiracy.^[10]

3. Motions disposing of wrongful death claims.

In the respective cases, the Fabiano defendants moved to dismiss the amended complaint and the Fuller defendants moved for partial judgment on the pleadings with respect to the wrongful death claims. In each motion, the defendants relied on our decision in GGNSC, 484 Mass. at 191, to argue that the wrongful death claims were barred because the statute of limitations had lapsed on the decedent's underlying claims at the time of the decedent's death. See G. L. c. 106, § 2-318 (three-year statute of limitations for breach of warranty actions); G. L. c. 260, § 2A (three-year statute of limitations for tort actions).

The motions were allowed by different judges in the Superior Court. Both judges ruled that, because wrongful death recovery is derivative of a decedent's own cause of action, the wrongful death claims were precluded because each decedent could not have brought claims based on the injuries that caused his death had he survived. Grace and Mary both appealed.^[11] We allowed their applications for direct appellate review.

Discussion.

1. Right to wrongful death recovery.

The right to recover for wrongful death finds its origin in the common law. See Gaudette v. Webb, 362 Mass. 60, 71 (1972). Despite the common-law nature of wrongful death actions, we have interpreted the wrongful death statute as establishing certain requirements applicable to such actions, including

"(a) requiring that damages recoverable for wrongful death be based upon the degree of the defendant's culpability; (b) prescribing the range of the damages recoverable against each defendant; (c) requiring that any action for wrongful death be brought by a personal representative on behalf of the designated categories of beneficiaries; and (d) requiring that the action be commenced within the specified period of time, as a limitation upon the remedy and not upon the right."

Id. In determining the parameters of recovery for wrongful death, we begin first with the language of the statute, and "if the language does not resolve the question, [we look] to the common law for guidance." GGNSC, 484 Mass. at 186-187.

2. Derivative nature of wrongful death claims.

In GGNSC, we were called to determine whether G. L. c. 229, § 2, provided rights to a decedent's statutory beneficiaries derivative of or independent from the decedent's own cause of action for the injuries that caused the decedent's death. GGNSC, 484 Mass. At 184. We concluded that wrongful death claims are derivative based on the language of the wrongful death statute, augmented by our interpretation of common-law wrongful death actions in the Commonwealth over time and persuasive authority from other jurisdictions. Id. at 184, 187-191.

In relevant part, G. L. c. 229, § 2 -- as it currently stands -- provides for wrongful death liability where

"[a] person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, . . . or (5) is responsible for a breach of warranty arising under [art. 2 of G. L. c. 106] which results in injury to a person that causes death."

In 1958, the Legislature amended a previous iteration of the statute by adding the language that, in part, undergirded our conclusion in GGNSC that wrongful death claims are derivative. GGNSC, 484 Mass. at 187-188. Specifically, the "Legislature amended G. L. c. 229, § 2, to permit compensation only 'under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted.'" Id., quoting St. 1958, c. 238, § 1.

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