Washington Supreme Court Affirms That Expiration of the Statute of Limitations on Personal Injury Claims Bar Subsequent Wrongful Death Action

Gavel and old clockOn October 6, 2016, the Washington Supreme Court held that the expiration of a personal injury claim during the injured party’s lifetime similarly bars any wrongful death action based on the same injury.  Deggs v. Asbestos Corp. Ltd., No. 91969-1, ___ Wn.2d ___ (Oct. 6, 2015).  The Court followed stare decisis to affirm the trial court’s order granting summary judgment for all defendants on grounds that the running of the limitations period on a decedent’s personal injury claim prior to death also operated to bar the personal representative from bringing a claim under the state wrongful death statute.  The Court expressly declined to overrule several prior Washington Supreme cases adopting such a rule.

Background Facts

Decedent Roy Sundberg was exposed to asbestos while working for various employers from 1942 to 1989.  After being diagnosed with multiple diseases, Mr. Sundberg and his wife filed an asbestos lawsuit against numerous defendants in 1999.  In 2001, their claims were tried to verdict in which the jury awarded plaintiffs over $1.5 million in damages.  Respondent Judy Deggs, the Sundbergs’ daughter, did not file her own claim even though Washington recognizes claims for loss of parental consortium.

Mr. Sundberg died in 2010.  In 2012, the Sundbergs’ daughter, as the personal representative of the estate, filed a wrongful death against several new defendants and one holdover defendant from the personal injury action.  The 2012 lawsuit asserted liability for the same injuries and asbestos exposure as the 1999 lawsuit.

In 2013, the trial court granted summary judgment for all defendants on grounds that both the wrongful death action and survival action were barred by the expiration of the statute of limitations on the decedent’s underlying claims against the defendants.  In doing so, the trial relied on Washington Supreme Court precedent holding that while wrongful death actions generally accrue at the time of death, Washington has recognized a “well-recognized limitation” that “there must be a subsisting cause of action in the deceased” at the time of death and that “the action for wrongful death is extinguished” in cases when the deceased either previously released the personal injury claims, obtained a judgment, or failed to “bring an action for injuries within the period of limitation.”  Grant v. Fisher Flouring Mills Co., 181 Wash. 576, 580-81, 44 P.2d 193 (1935); Calhoun v. Washington Veneer Co., 170 Wash. 152, 159-60, 15 P.2d 943 (1932); Johnson v. Ottomeier, 45 Wn.2d 419, 422-23, 275 P.2d 723 (1954).  In 2015, the Washington Court of Appeals affirmed in a 2-1 decision.[1]  Deggs v. Asbestos Corp. Ltd., 188 Wn. App. 495, 354 P.3d 1 (2005).  The Washington Supreme Court granted review.

The Court’s Analysis

In a 5-4 decision, the Washington Supreme Court applied stare decisis and refused to overturn the long-standing precedent establishing that the right to a wrongful death action remained predicated on the deceased having a valid cause of action at the time of death.  The Court first examined the lengthy history of cases like Grant and Calhoun in which it had relied on Lord Campbell’s Act to recognize that various acts or omissions by injured parties during their lifetime may limit or extinguish their heirs from maintaining a subsequent wrongful death action.

While acknowledging that the Court in its present composition may have reached different results if the issue on appeal was a question of first impression, the Court held that the requirements for abandoning stare decisis were not met in this case.  Specifically, the Court concluded that there was no “clear showing” that the prior decisions were harmful.  The Court reasoned that it was not faced with a case where the deceased “was prevented from bringing a personal injury claim within the statute of limitations” before death.  “Instead, we are faced with a case where the deceased knew of the injury, sued, and either settled with or won against all the named defendants.”  Thus, the Court concluded that because the deceased and his heirs had the knowledge and opportunity to bring a personal injury claim against the defendants during his lifetime, there was no clear showing that the prior precedent was harmful.

The Court contrasted the lack of harm to the plaintiffs to the “considerable harm on settled expectations if we were to abandon the rule from Lord Campbell’s Act now” because “[m]any entities that reasonably relied upon our precedent to close the book on potential claims based on the passage of the underlying statute of limitations would now find themselves subject to potential liability based on a court opinions they were not parties to.”  It also distinguished the situation in which the cause of death was not known until after the decedent had passed away because those cases would fall under Washington’s discovery rule, which would effectively toll the statute of limitations on any personal injury claims until after death.

The Court further cited the legislative’s acquiescence in the prior decisions by noting that the legislature had subsequently amended the wrongful death statute several times without changing the statute to supersede the Court’s prior holdings on this issue. Finally, the Court noted that the legal underpinnings for the prior decisions had not changed or disappeared altogether.

The dissent focused on the lack of language in the wrongful death statute expressly conditioning the right to bring a wrongful death claim on the existence of a valid personal injury claim, as well as the perceived unfairness of extinguishing a wrongful death cause of action before it could accrue upon the injured party’s death.

Conclusions

In practical terms, the majority of the Court did not want to undo a long-established rule of law requiring the existence of a valid personal injury cause of action at the time of death in order for a wrongful death action to proceed.  The Court recognized that under such circumstances, there is nothing inherently prejudicial about preventing the heirs from taking a second bite at the apple where the deceased had a full and fair opportunity to bring claims for the same injuries and damages during his or her lifetime. It also should be noted the dissent was unable to articulate how trial courts would be able to set off or segregate settlement amounts and damages awarded in a prior personal injury action from damages sought in the wrongful death action based on the same injuries.  Finally, the Deggs holding should equally apply to prevent a subsequent wrongful death action in cases in which the deceased executed a valid release or obtained a judgment against particular defendants during his or her lifetime.

While Deggs will prevent the resurrection of many old personal injury claims, it is anticipated that the plaintiffs’ bar may seek legislation to amend the wrongful death statute and supersede this ruling.  In other words, stay tuned.

[1] Respondent did not appeal the trial court’s dismissal of the estate’s survivorship claims, as Washington’s survival statute on its face merely preserves existing personal injury claims at the time of death, rather than creating a separate, independent action like the wrongful death statute.  RCW 4.20.046(1); RCW 4.20.060.

New York Broadens Personal Injury Statute of Limitations for Waste Sites

On July 21, 2016, Governor Andrew Cuomo of New York signed legislation extending the statute of limitations in New York for personal injury claims related to pollution at superfund sites. The legislation was a response to the concerns of residents of Hoosick Falls, New York whose groundwater was contaminated with PFOA, a chemical compound previously used at manufacturing facilities in Hoosick Falls for several decades. Although the new legislation was specifically tailored to assist residents at Hoosick Falls in bringing PFOA-related personal injury cases, it is likely that the law will have an impact far beyond Hoosick Falls.

7-28The new law resurrects previously time-barred claims. Any time a site is designated a superfund site, potential plaintiffs will now have a new three-year window to bring a personal injury action related to the site. Corporate entities that have been identified as responsible parties at inactive hazardous waste disposal sites may find themselves at increased risk for alleged toxic exposures that may have occurred decades ago. The new law has the potential to generate an enormous windfall for the plaintiff bar.

Prior to the new enactment, New York already had an expansive statute of limitations for toxic tort claimants in latency cases. The period in such cases is computed from the “date of discovery of the injury by the plaintiff or from the date, when through the exercise of reasonable diligence, such injury should had been discovered, which ever is earlier.”

The new statute, codified as CPLR 214-f, supersedes this discovery trigger.

Action to recover damages for personal injury caused by contact with or exposure to any substance or combination of substances found within an area designated as a superfund site. Notwithstanding any provision of law to the contrary, an action to recover personal damages for injury caused by contact with or exposure to any substance or combination of substances contained within an area designated as a superfund site pursuant to either Chapter 103 of Section 42 of the United States Code and/or Section 27-1303 of the environmental conservation law, may be commenced by the plaintiff within the period allowed pursuant to section two hundred fourteen-c of this article or within three years of such designation of such an area as a superfund site, which ever is latest.

The plaintiff may have known about the contamination and alleged illness for years, but no matter. The statute begins anew once the designation takes place.

It is well known that a federal or state site may be designated as a superfund site decades after alleged contamination has taken place. CPLR 214-f may require corporate defendants identified as potentially responsible parties (PRPs), even if de minimis, at newly listed superfund sitesto defend personal injury cases alleging decades-old exposures. The Hoosick Falls litigation will likely target: (1) a single chemical compound, PFOA, (2) used by a small group of defendants, (3) identified in drinking water, and (4) specific diseases that the epidemiologic literature associates with PFOA exposure. As enacted, however, the law may encourage plaintiff lawyers to plead “chemical soup” mass tort toxic tort claims against multiple defendants involving multiple chemical substances and alleging that this “chemical soup” caused a broad range of diseases.

New York ECL 27-1303, which is specifically referenced in the new law, emphasizes the role of New York counties in identifying inactive hazardous waste disposal state sites within their boundaries and submitting annual reports to the NYDEC describing the location of each suspected site and the reasons for such suspicion. Unlike the designation of a superfund site at the federal level, the designation of a superfund site at the state level is a much more localized process that can be subject to political manipulation.

The sponsors of the legislation were clearly influenced, not only by the discovery of water contamination in Hoosick Falls, but the serious problems in Flint, Michigan as well.

The recent discovery of water contamination in Hoosick Falls, New York and Flint, Michigan has raised great alarm across our country and our state. These instances of contamination have been sited as a potential cause of many previously unexplained illnesses suffered by members of those communities. In many cases, the statute of limitations to bring a personal injury action has long since run before any contamination was every discovered. This bill seeks to address this in equity and give those who have been sickened legal recourse to be made whole.”

Although the sponsors claim that their bill would “create a narrowly tailored legal mechanism to address instances where extraordinary circumstances negatively impact public health,” this legislation is anything but narrow. The statute permits recovery “for injury caused by contact with or exposure to any substance or combination of substances.” Plaintiff may argue that the new law applies to any substance at any CERCLA site regardless of whether that substance is subject to regulation under the statute. For example, CERCLA specifically excludes petroleum contamination. Is a company that disposed of petroleum products at a waste site, which is not a proper substance for CERCLA regulation, a proper target of a personal injury action under CPLR 214-f?

Delayed Filing of Birth Defect Actions: Toxic Tort Exception to the General Rule in California

In Nguyen v. Western Digital Corp., the California Court of Appeal, Sixth Appellate District concluded that a child born in 1994 with pronounced birth defects purportedly caused by in utero exposure to various chemicals at the “clean room” workplace of her mother could nevertheless timely file an action against that employer in 2010.

The primary issue was which California statute of limitations applied, the six-year statute for pre-birth injuries (Code Civ. Proc., § 340.4) or the statute related to exposure to toxic substances (Code Civ. Proc., § 340.8). The two-year toxic statute of limitations is, however, tolled during a plaintiff’s minority.

Nguyen grappled with these issues through more than 30 pages of detailed legal analysis and interpretation of legislative intent, and ruled in favor of the plaintiff.

Construing both section 340.4 and section 340.8, we hold that claims based on birth or pre-birth injuries that are due to exposure to hazardous materials or toxic substances are subject to the limitations period in section 340.8. We also hold that even though section 340.8 did not take effect until almost 10 years after Plaintiff was born, it applies in this case because the allegations of the third amended complaint support a claim of delayed accrual until December 31, 1998. And since Plaintiff’s claims did not accrue until that date, they were not barred by the six-year limitations period in section 340.4 (pre-birth injuries) on January 1, 2004, when section 340.8 (toxic exposures) went into effect. Moreover, since Plaintiff’s claims were subject to the limitations period in section 340.8 when it took effect, she is entitled to tolling for minority that applies to section 340.8 claims. Thus, her action filed on October 25, 2010, when she was 16 years old, was timely.

The plaintiff had adequately alleged “a claim of delayed accrual until December 31, 1998” because that was allegedly “the last possible date that ‘health service providers affiliated with . . . [employer] falsely represented to [parent] . . . that there was no causal connection between [parent’s] occupational chemical exposure and [Plaintiff’s] injuries.’ ”

The court analyzed the application of the two statutes by first looking at section 340.4:

Since the allegations of the third amended complaint support a claim of delayed accrual until December 31, 1998, [Plaintiff]’s claims were not barred by the six-year limitations period in section 340.4 (pre-birth injuries) on January 1, 2004 when section 340.8 (toxic exposures) went into effect.

Having resolved the question of a possible bar by the earlier-enacted section 340.4 favorably for the plaintiffs, the court moved on to the later-enacted section 340.8:

Since her claims had not yet expired, she was entitled to rely on the statute of limitations in section 340.8, which included tolling for minority. Thus, [Plaintiff’s] action filed on October 25, 2010, when she was 16 years old, was timely.

It is difficult to say how far-reaching this decision may become with regard to birth defect cases in California.  Perhaps it will have no effect other than on cases involving children born within six years prior to the January 1, 2004, effective date of the toxic tort statute. Further, in this opinion the court had to take all of the plaintiffs’ allegations as truthful, since the ruling in the court below was at the demurrer stage, and pursuant to rules of statutory interpretation the court was obliged to seek any set of facts that would allow for a conclusion that the action was timely filed. The court found such a set of facts by accepting the contentions of the family that they did not suspect any chemical cause of the birth defects as of 1998 such that one statute did not extinguish the claim, and then supplanting that statute with application of a second, later-enacted statute so as to afford the family more time to file.

It could have been worse. The plaintiff also alleged that pursuant to the discovery rule, the action should not be deemed to have accrued until 2008, when family members heard on the radio that attorneys were investigating cases of birth defects caused by chemical exposures in the semiconductor industry … contacted the attorneys and “learned for the first time” of the potential harm from the chemicals at work. Nguyen did not address that issue, because it found the action timely on other grounds. If the plaintiff’s argument was adopted, it would essentially mean that attorney advertisements would become the trigger for statutes of limitations, which in turn would mean the certainty of the statute would vanish.

Perhaps the lesson to be learned here is that defeating what initially appears to be a stale birth defect claim by application of the statute of limitations in California is going to be a difficult, but not impossible task. The Sixth Appellate District issued two other unpublished decisions (meaning they cannot be cited as precedent in California) also interpreting application of the California statutes of limitations and the discovery rule in “clean room” cases involving delayed filing of actions for birth defects.  In one, Ovick v. National Semiconductor Corp., the ruling of the trial court dismissing the action at the demurrer stage was reversed.  In the second, Studdendorf v. National Semiconductor Corp., the court sustained a dismissal at the demurrer stage. While the case cannot be cited, it may still have value in suggesting a way to convince a court that the discovery rule means something other than an attorney telling you it is a problem.

In Studdendorf, as in the other cases, the plaintiffs alleged that “Parents did not know [the child’s] birth defects were caused by workplace exposure to hazardous chemicals until December 2008, when they heard on the radio that their attorneys were investigating cases of birth defects caused by chemical exposures in the semiconductor industry.” One key difference in this case: “But Plaintiffs also allege that around the time Christopher was diagnosed with retinoblastoma in October 1987, Parents asked [their employer] ‘whether they had worked with or otherwise been exposed to any hazardous chemicals.’ ” In 1987, only the six-year statute was in effect, so the plaintiff “was required to file suit within six years of discovery, or no later than October 1993.”

Parents suspected that Christopher’s injuries were caused by chemical exposure in their workplace. The averments of the second amended complaint support the conclusion that they suspected both wrongdoing and the alleged cause of Christopher’s injuries shortly after the diagnosis when they went to NSC and asked “whether they had worked with or otherwise been exposed to any hazardous chemicals.” The use of the word “hazardous” supports the conclusion that Parents suspected something in their work environment was dangerous to human health; not simply a cause, but a wrongful cause.

Thus, defendants in long-delayed birth defect cases should pursue any evidence that parents asked employers, or for that matter perhaps doctors or anyone else, about possible causes of harm near the time the defects first became apparent.

Challenges to the timeliness of such actions must be considered and made.  And if at first the defense does not succeed, similar arguments can be resurrected after discovery and investigation through a summary judgment motion.  In the final analysis, it may remain difficult to convince courts to dismiss such cases on statute of limitations arguments. The rules of statutory interpretation allow the courts to seek a means of maintaining actions that have such strong emotional appeal.

 

Supreme Court to Rule on Whether CERCLA’S Statute of Limitations Preemption Clause Also Preempts State Statutes of Repose

Last July, the Fourth U.S. Circuit Court of Appeals ruled that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) preemption clause, 42 U.S.C. 9658(a)(1), which preempts state statutes of limitation with that prescribed under CERCLA, also preempts North Carolina’s state statute of repose.  Waldburger v. CTS Corp., 723 F.3d 434 (4th Cir. 2013).

While statutes of limitation limit the amount of time that a plaintiff has to bring a claim after the date the injury occurred, or the date he should have known of the injury and its cause (or other similar triggering event), state statutes of repose bar claims after a certain amount of time following the last act of the defendant giving rise to the claim — even if that is before the plaintiff knew or should have known of any harm.

CERCLA’s preemption clause only expressly mentions statutes of limitations.  However, the Fourth Circuit found that the repose statute still worked as a limitation, and that the congressional intent was to allow CERCLA claims to proceed more liberally, not to bar claims before they might even exist.  The Fourth Circuit divided on the decision, 2-2.

Following the Fourth Circuit’s decision, the U.S. Supreme Court granted review, and will hear oral argument on this matter on April 23, 2014.  CTS Corp. v. Waldburger, No. 13-339.  Interestingly, the United States itself joins CTS and other amici defense and defendant groups in advocating for the narrower reading of section 9658.  In its amicus curiae brief, the United States discusses how its own interest lies in the fact that it has been sued in North Carolina, and it has advocated the same position in those proceedings in its own defense.

Stay tuned for updates on the resolution of this appeal, which could have wide-ranging impacts on the ability to bring CERCLA claims in states where statutes of repose exist.