Does the Discovery Rule Apply to the NJ Wrongful Death Act?

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.”

The story

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

Commentary

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: