Massachusetts High Court Affirms Limit on Wrongful Death Suits in Tobacco Ruling

If a person’s right to bring a personal injury lawsuit has expired by the time of his or her death, the person’s estate is barred from bringing a wrongful death suit in Massachusetts for the benefit of the beneficiaries.

The Massachusetts Supreme Judicial Court has affirmed the dismissal of wrongful death suits by two women whose husbands died after smoking cigarettes for 40 and 50 years. Both wives were pursuing wrongful death lawsuits against the tobacco firms and retailers that they say for decades supplied their husbands with their cigarettes.

But the high court, agreeing with the lower court judges in the two cases, said there is no right for the wives to bring a wrongful death lawsuit because the statute of limitations on their husbands’ underlying right to sue had expired before their deaths.

“[I]n Massachusetts, we follow the majority rule that wrongful death liability is derivative. Accordingly, we follow the majority approach precluding recovery for wrongful death where the statute of limitations on the decedent’s underlying claims ran before the decedent’s death,” the Supreme Judicial Court wrote, citing its own 2020 ruling (GGNSC Admin. Servs., LLC v. Schrader) on the issue.

In both cases, the defendant tobacco firms and retailers moved to have the claims dismissed. Different judges in the Superior Court allowed the defendants’ motions to dismiss. Both judges cited the 2020 holding that wrongful death liability is derivative and thus the claims were precluded because each decedent could not have brought claims based on the injuries that caused his death had he survived.

Ralph Fabiano began smoking cigarettes at the age of 15 when he received free samples of cigarettes, including L&M brand cigarettes manufactured by Philip Morris USA. Fabiano became addicted to smoking and continued to buy and smoke L&M cigarettes for the next 50 years. He regularly purchased L&M cigarettes from Shaw’s Supermarkets. In 2004, Ralph was diagnosed with emphysema caused by long-term cigarette smoking. He died of cancer at age 67 in July 2014, which was 10 years after his diagnosis, without having sued. Just under three years later, in July 2017, his wife Grace, as personal representative of his estate, brought a wrongful death suit against Philip Morris USA Inc. and Shaw’s Supermarkets, Inc.

John Fuller frequently purchased Camel cigarettes from Cumberland Farms. In 2012, he was diagnosed with lung cancer caused by long-term cigarette smoking. He died from lung cancer four years later in November 2016 without having brought an injury suit. In September 2017, his wife Mary, as personal representative of his estate, brought wrongful death claims based on breach of warranty, negligence, and conspiracy.

Grace Fabiano and Mary Fuller, as personal representative of their husbands’ estate, appealed the Superior Court dismissals of their suits. The Supreme Judicial Court granted direct appellate review.

Massachusetts has a three-year statute of limitations for bringing personal injury suits that starts at the date of the injury or diagnosis, a period that had passed by the time the men in these cases died. There is also a three year statute of limitations on wrongful death suits.

Grace Fabiano and Mary Fuller each sued for wrongful deaths within three years of their husbands’ passing. They argued that their estates had the right to sue on behalf of the beneficiaries, their actions should be governed by the three-year statute of limitations for a wrongful death suits, and that the clock should start ticking from the date of the deaths of their husbands.

The defendants again sought to have the claims dismissed, citing the same ruling in GGNSC, which established that the right to bring a wrongful death claim depends on whether the right to sue existed prior to the decedent’s passing. The cigarette firms maintained that the wrongful death action should not restart the statute of limitations clock. They warned, and the Superior Court agreed, that such an interpretation would mean they could be sued multiple times for the same alleged injury both before and years after death.

The estates fared no better with the Supreme Judicial Court than they did in the lower court. The high court stood by the GGNSC ruling and dismissed the estates’ claims because the right to sue expired before the men died.

“Where a decedent had no right on the date of his or her death to bring suit for the injury that caused his or her death, no cause of action for wrongful death based on the death-causing injury ever vests in the decedent’s representative for the benefit of the beneficiaries,” the high court wrote citing GGNSC.

In these tobacco cases, the court said that because a cause of action for wrongful death never came into existence for the decedent’s representative, it never accrued, and the three-year statute of limitations for wrongful death actions was never triggered.

The court noted that of the jurisdictions like Massachusetts where wrongful death liability is derivative, the vast majority that have weighed in on the issue agree that, if the decedent’s underlying personal injury claim is barred by the statute of limitations at the time of death, no right of wrongful death is created in the representative of the decedent’s estate for the benefit of the beneficiaries.

The plaintiffs further argued that the court’s approach “produces fundamental unfairness by forcing those suffering from life-threatening illnesses to make the untenable choice of filing suit while they are suffering from the illness or forfeiting their heirs’ right to recovery in the event that the statute of limitations runs before their death.”

The high court answered that its decision “in no way changes what has long been true of persons suffering from serious injuries. Once those injuries are knowable, plaintiffs must assert their rights within a specified period of time or lose their ability to recover for their injuries.”

The court reiterated its conclusion that “because the right to recover for wrongful death is derivative of a decedent’s right to recover for his or her injuries, if the decedent, during his or her life, loses or otherwise forfeits the ability to recover, no right to recover exists in his or her beneficiaries.”