Can the discovery rule be applied to extend the 2-year statute of limitations built into the NJ Wrongful death act?
The federal district court for the district of New Jersey was asked to answer this question in the mass toxic-tort action, Fuqua v. Bristol-Myers Squibb Company, No. 11-6043; U.S. District Court (DNJ). The Honorable Freda L. Wolfson held:
Here, Defendant moves to dismiss those claims for failure to comply with the Act’s applicable two-year statute of limitations. For the reasons set forth herein, Defendant’s motions are GRANTED, and Plaintiffs’ wrongful death claims are dismissed without prejudice.”
Decedents, who were living in close proximity to the Bristol-Myers Squibb Company (“BMS”) facility in New Brunswick, suffered fatal bodily injuries and illnesses as a result of their alleged exposure to toxic substances emitted from the facility. In addition to other survivorship claims — which are not the subject of Defendant’s motion to dismiss — Plaintiffs brought wrongful death claims on behalf of the heirs-at-law, who allege that they were dependent upon the respective decedents and sustained pecuniary losses as a result of their deaths. It is not disputed that all the wrongful death claims in these twenty-four actions were filed more than two years after the death of each decedent.
Consequently, Defendant posits that Plaintiffs should be time barred from bringing such claims. In that connection, Defendant submits that the discovery rule principles do not apply to toll the limitations provision for wrongful death claims. In response, Plaintiffs maintain that the discovery rule and other principles of equitable tolling are applicable to save their otherwise untimely claims.” [Source: Opinion].
Application of the “Discovery Rule” in NJ
The discovery rule relieves the victim of negligence from the harsh effects of an inflexible application of the statutes of limitations. The doctrine provides that in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim. Lopez v. Swyer, 62 N.J. 267 (1973). The NJ Supreme Court has declined to address the issue of whether or not the discovery rule applies to toll the two-year statute of limitations in the NJ Wrongful Death Act; and three appellate division panels have declined to apply the discovery rule to wrongful death cases.
The Appellate Division has found on several occasions that the discovery rule does not preserve an untimely wrongful death claim because that rule applies only “to an accrual period of limitations,” not to a limitations provision “based upon a fixed objective event,” such as “death,” which is the triggering event for the Wrongful Death Act limitations provision, N.J.S.A. 2A:31-3. See Bernoskie v. Zarinsky, 344 N.J. Super. 160, 165-66 (App. Div. 2001); Presslaff v. Robins, 168 N.J. Super. 543, 546 (App. Div. 1979); Hernandez v. St. James Hosp., 214 N.J. Super. 538, 542 (App. Div. 1986) (citing Presslaff and holding the discovery rule does not apply to a cause of action under the New Jersey Wrongful Death Statute); see also Whalen v. Young, 28 N.J. Super. 543, 547 (Law Div. 1953) (strict adherence to two-year limitation period from date of death), rev’d on other grounds, 15 N.J. 321 (1954).”
Will Equitable Tolling and Fraudulent Concealment rescue the plaintiff’s from a dismissal of their wrongful death claim?
Here’s how Judge Wolfson explained these two related equitable principles:
To ameliorate the sometimes harsh and unjust impact of certain statute of limitations provisions, the New Jersey Supreme Court has adopted equitable doctrines that may be invoked by an injured party to extend the time for filing a claim beyond what would be allowed under a rigid application of a particular statute of limitations. See, e.g., LaFage v. Jani, 166 N.J. 412, 420-31 (2001) (infancy tolling); Negron v. Llarena, 156 N.J. 296, 304-05 (1998) (substantial compliance). These doctrines recognize that “[u] unswerving `mechanistic’ application of statutes of limitations would at times inflict obvious and unnecessary harm upon individual plaintiffs without advancing [the] legislative purposes” of providing repose for potential defendants and sparing the courts from the burden of hearing stale claims. Galligan v. Westfield Centre Service, Inc., 82 N.J. 188, 192 (1980). Indeed, the “Supreme Court has applied these doctrines not only to what are commonly called `procedural’ statutes of limitations, which bar only a remedy but not the right that existed at common law, but also to `substantive’ statutes of limitations which establish a condition precedent to filing a claim that did not exist at common law.” Bernoskie, 344 N.J. Super. at 164-65; see, e.g., LaFage, 166 N.J. at 420-31; Negron, 156 N.J. at 300-04; White v. Violent Crimes Compensation Bd., 76 N.J. 368, 374-78 (1978).
Key take aways
- To reconcile the language of the statute of limitations provision of the Wrongful Death Act, the NJ Supreme Court reasoned that the death of a parent was essentially an injury to the child, much like a child’s own physical injury, and therefore the child’s wrongful death claim should be tolled until he/she reaches the age of maturity. The Court went on to state that the legislature could not have intended to foreclose the possibility of a child bringing a wrongful death claim once he/she reaches maturity under the law.
- The NJ Supreme Court also extended the substantial compliance doctrine to toll the statute of limitations of wrongful death claims. See Negron, 156 N.J. at 305-07. Like LaFage, the Court delved into the legislature’s intent and public policy and found that “there is nothing reflective in the objectives of [the Wrongful Death Act] or its history that suggests the Legislature intended to foreclose the familiar doctrine of substantial compliance in the [statute of limitations] context
- Based on the rationale of these Supreme Court cases and their progeny, the State Court, in In re Bristol-Myers, found that while “the discovery rule in WDA is somewhat unclear,” equitable tolling may be appropriate in circumstances where an adversary’s “misconduct. (citing Freeman v. State of New Jersey, 347 N.J. Super 11, 31 (App. Div. 2002)). Under that scenario, a “defendant’s conduct is relevant to the availability of a statute of limitations defense,” see Zaccardi v. Becker, 88 N.J. 245, 257 (1982), as equitable tolling has been applied when “the complainant has been induced or tricked by his [or her] adversary’s misconduct into allowing the filing deadline to pass.” Freeman, 347 N.J. Super at 31. The State Court, in In re Bristol-Myers, ultimately found that the state plaintiffs’ allegations that Defendant BMS withheld information about the contamination in question may be sufficient to toll the statute of limitations. In essence, the State Court permitted the state plaintiffs to proceed with discovery on a defense of fraudulent concealment
- New Jersey’s highest court has not determined whether fraudulent concealment would toll the statute of limitations under the Wrongful Death Act. That being said, generally under New Jersey law, active fraudulent concealment of a cause of action tolls the running of the statute of limitations until plaintiff discovers the wrong or has reasonable notice of it. See Tortorello v. Reinfel, 6 N.J. 58, 67 (1950); O’Keeffe v. Snyder, 83 N.J. 478, 498 (1980); Trinity Church, 394 N.J. Super at 168; Hauptmann v. Wilentz, 570 F. Supp. 351, 397 (D.N.J. 1983); Kohler v. Barnes, 123 N.J. Super. 69, 79, 301 A.2d 474 (Law Div. 1973); Kronfeld v. First Jersey Nat’l Bank, 638 F. Supp. 1454, 1475 (D.N.J. 1986); Foodtown v. Sigma Marketing Systems, Inc., 518 F. Supp. 485, 488 (D.N.J. 1980); Osadchy v. Gans, 436 F. Supp. 677, 681 (D.N.J. 1977); Zimmerman v. Cherivtch, 5 N.J. Super. 590, 593-94 (Law Div. 1949). This is consistent with the federal rule. See D.D. v. Idant Labs., 374 Fed. Appx. 319, 323 (3d Cir. 2010); In re Aspartame Antitrust Litig., 416 Fed. Appx. 208, 211 (3d Cir. 2011); Holmberg v. Armbrecht, 327 U.S. 392 (1946); Hauptmann, 570 F. Supp. at 397
- Despite New Jersey’s stance on fraudulent concealment as a means to toll statutes of limitations, because of the limiting language of the statute of limitations provision in the Wrongful Death Act, this Court, to predict how the New Jersey Supreme Court would rule on the issue, would necessarily need to engage in an in-depth analysis of, inter alia, public policy and legislative intent before applying the doctrine in this context, consistent with the guidance of LaFage and Negron. I need not undertake this task, however; for one, it is prudent for a federal court sitting in diversity to allow state courts to interpret their own state laws and the applications of such laws whenever appropriate. In re Processed Egg Prods. Antitrust Litig., 851 F. Supp. 2d 867, 935-36 (E.D. Pa. 2012); Denzel v. S.O.S. Products Company, Inc., 2010 U.S. Dist. LEXIS 88779, at *30 (E.D. Pa. 2010); see also, Klein v. United States, 537 F.3d 1027, 1032 (9th Cir. 2008); Emery v. Clark, 604 F.3d 1102, 1120 (9th Cir. 2010). More importantly, even if I were to apply the doctrine, Plaintiffs have not sufficiently pled the elements of this equitable defense to warrant its application. I will turn to that discussion
- In New Jersey, two types of so-called “fraudulent concealment” may toll the statute of limitations. In the first, the underlying events being sued upon involve fraud that by its nature is concealed. See, e.g., Roberts v. Magnetic Metals Co., 611 F.2d 450, 462 (3d Cir. 1979) (Seitz, C.J. dissenting); Kyle v. Green Acres at Verona Inc., 44 N.J. 100, 109 (1965); Hyland v. Kirkman, 157 N.J. Super. 565, 581 (Ch. Div. 1978)(finding that the recording of a deed, itself a fraud and a fabrication, can not serve as notice of the fraud inherent in its creation). In the second, defendant makes some affirmative, independent effort to conceal the events or circumstances surrounding the underlying cause of action, irrespective of whether those underlying events are inherently fraudulent or not. See Foodtown,518 F. Supp. at 492-94 (D.N.J. 1981); Lopez v. Swyer, 62 N.J. 267, 275 n. 2 (1973); see also Gee v. CBS, Inc., 471 F. Supp. 600, 623 (E.D. Pa.), aff’d, 612 F.2d 572 (3d Cir. 1979). In both cases, the statute is tolled until plaintiff discovers, or in the exercise of reasonable diligence should discover, the wrong. In this case, Plaintiffs rely on the second type of fraudulent concealment
- While New Jersey courts are not explicit as to the elements a plaintiff must pled in order to invoke fraudulent concealment, the Third Circuit has enunciated the following factors: “(1) fraudulent concealment; (2) failure on the part of the plaintiff to discover his cause of action notwithstanding such concealment; and (3) that such failure to discover occurred [notwithstanding] the exercise of due care on the part of the plaintiff.” In re Aspartame, 416 Fed. Appx. at 211 (citations omitted). These factors must be plead with particularity pursuant to Rule 9(b). Kontonotas v. Hygrosol Pharm. Corp., 424 Fed. Appx. 184, 187 (3d Cir. 2011)
I have experienced the thrill of victory and the agony of defeat while asserting the applicability of the discovery rule. I remember learning as a young lawyer that the two year “statute of limitation” provision of the NJ Wrongful Death Act was a substantive based, inflexible, time limit to file a wrongful death claim that commenced running on the date of death. Ergo, the agony of discovery rule defeat.
On the other hand, I experienced the thrill of victory when a judge applied the discovery rule to extend the statute of limitations in a number of medical malpractice and survival cases. For example, the classic application of the discovery rule happens when a physician forgets to remove a sponge or surgical instrument following surgery. Under the discovery rule, the victims cause of action for medical negligence does not begin to accrue until she discovers that:
- A sponge was left inside her body
- She suffered an injury
- The injury was caused by the negligence of a healthcare provider
It has been my experience that successfully persuading a judge to apply equitable tolling in a wrongful death act case is very, very, difficult.
I am a dyed in the polyester, personal injury lawyer, who spent a 35 year legal lifetime representing victims of careless drivers, healthcare providers, machines, and so on. I am totally passionate that justice is served by applying equitable principles to eradicate the painful sting of inflexible two-year accrual or substantive statutes of limitations.
There, I said it. Any defense lawyers out there who care to respond?
There is a lot more to be read about these challenges. Here are some additional resources that may be of interest you:
- Justia wrongful death act topics in New Jersey
- Text of P.L. 2009, c.266 (S-2763) – Eliminates statute of limitations for lawsuits brought under the “Survivor’s Act” where the death resulted from murder or manslaughter
- Text of Fuqua v. Bristol-Myers Squibb Company case
- LegiScan listing of NJ Wrongful Death Act legislation
- Larry the NJ Lawyers Cogitations articles about discovery rule