USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 94-1299
GAIL A. LAREAU AND MICHAEL LAREAU,
INDIVIDUALLY AND AS PARENTS AND NEXT OF FRIENDS OF
ASHLEY LAREAU AND CHRISTOPHER LAREAU,
Plaintiffs, Appellants,
v.
LARRY K. PAGE, M.D.,
SEQUA CORPORATION,
AND CHROMALLOY PHARMACEUTICAL, INC.
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Joan A. Lukey with whom Charles P. Kindregan and Hale and Dorr
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were on brief for appellants.
John D. Cassidy with whom John M. Dellea and Ficksman & Conley
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were on brief for appellee Larry K. Page, M.D.
Lawrence G. Cetrulo with whom Kevin E. Young, David B. Frederick,
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and Peabody & Arnold were on brief for appellees Sequa Corporation and
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Chromalloy Pharmaceutical, Inc.
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November 14, 1994
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STAHL, Circuit Judge. Plaintiffs-appellants Gail
STAHL, Circuit Judge.
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Lareau, her husband Michael Lareau, and their children,
Christopher and Ashley Lareau, filed suit against defendants-
appellees Dr. Larry K. Page and parent-subsidiary
corporations Sequa Corporation and Chromalloy Pharmaceutical,
Inc. (collectively, "CPI") for injuries arising from the
injection of the contrast medium Thorotrast into Mrs. Lareau
in 1970. All of the Lareaus appeal various pre-trial rulings
of the district court, and Christopher appeals an adverse
jury verdict in his loss-of-consortium action against Dr.
Page, the only part of this case decided by a jury. We hold
that the statutes of limitations bar all of the Lareaus'
claims except their consumer-protection claims against Dr.
Page and that the Lareaus are not entitled to recover on
their consumer-protection claims against Dr. Page.
Accordingly, we affirm the district court's entry of judgment
for defendants.
I.
I.
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Background
Background
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In March 1970, Mrs. Lareau (then Gail Melanson,
aged 17), suffering from severe headaches and flu-like
symptoms, was admitted to Children's Hospital in Boston,
where she came under the care of Dr. Page, a neurosurgeon.
Fearing that Mrs. Lareau had a malignant brain tumor, Dr.
Page performed a craniotomy and determined instead that she
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had a brain abscess, which is a life-threatening accumulation
of pus that forms within a capsule of tissue in the brain.
Dr. Page aspirated the abscess, which was approximately the
size of a tennis ball. He then injected a small amount of
Thorotrast, a radioactive contrast medium, into the abscess
cavity to facilitate its post-operative radiologic
observation. Dr. Page did not inform or warn Mrs. Lareau or
her parents of the dangers of Thorotrast or obtain their
consent for using it prior to injecting the substance into
her abscess cavity. Four days later, using Thorotrast-
enhanced x-rays, Dr. Page detected the recurrence of Mrs.
Lareau's abscess. He aspirated the abscess again and,
shortly thereafter, discharged Mrs. Lareau.
Post-surgery, Mrs. Lareau remained healthy for
fourteen years; she grew into adulthood, married Mr. Lareau
and, in 1983, gave birth to their first child, Christopher.
On June 13, 1984, however, Mrs. Lareau was admitted to the
Burbank Hospital in Fitchburg, Massachusetts, suffering from
severe headaches and a grand mal seizure. Her attending
physician, Dr. Richard Cornell, noted that the CT scan taken
on admission revealed "a large calcified mass in the left
brain due to the old lesion." In the discharge summary, Dr.
Cornell also noted "a density overlying the lateral aspect of
the left frontal sinus . . . probably due to retained
contrast [medium] placed at the time of the removal of her
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brain abscess, rather than calcification." Mrs. Lareau
herself never saw these reports.
Upon her discharge from Burbank Hospital, Mrs.
Lareau was referred to Dr. Edwin G. Fischer, a neurosurgeon
at Children's Hospital in Boston. Two weeks after she
consulted with Dr. Fischer, Mrs. Lareau received a letter
from him, dated July 6, 1984, in which he warned her that
there was a "theoretical possibility" that "the Thorotrast
that was left following treatment of your brain abscess"
could "induce a tumor in surrounding brain tissue over a
total period of about 20 years." Dr. Fischer's letter
continued:
Since it [the Thorotrast] is located in
an area of brain that it would be safe to
remove it from, I am recommending that it
be removed to avoid the risk of a future
tumor. Unfortunately I cannot tell you
what the chances are of developing a
tumor, but with the Thorotrast out I
don't think you would have to worry about
it further.
On September 12, 1984, Mrs. Lareau went to Dr. R.
Michael Scott, a neurosurgeon at New England Medical Center,
for a second opinion. While confirming the existence of the
Thorotrast, Dr. Scott did not recommend surgery. After
consulting further with Dr. Cornell, Mrs. Lareau decided not
to go ahead with surgery on, as she said in her deposition
testimony, "just a theoretical possibility."
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Mrs. Lareau continued to consult Dr. Fischer,
returning in September 1985 and March 1987 for cranial CT
scans. Both scans indicated the presence of Thorotrast but
no tumor formation. In 1986, between these two
consultations, Ashley Lareau was born.
In a letter dated November 11, 1988, Dr. Fischer
again wrote to Mrs. Lareau:
As you know, we have been concerned about
the Thorotrast used to treat your brain
abscess. The theoretical possibility has
always been that the remaining material
could cause the formation of a tumor.
This past year a report of such a case
has appeared in the neurosurgical
literature, the tumor occurring 21 years
after treatment of the abscess.
I think this is sufficient cause for us
to reconsider things and obtain a new
scan . . . .
Mrs. Lareau went to see Dr. Fischer in March 1989. Dr.
Fischer again recommended surgery to remove the Thorotrast,
this time referring to the report of brain cancer in the
literature.
On June 16, 1989, Mrs. Lareau watched a report on
the dangers of Thorotrast on the ABC News program 20/20.
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Mrs. Lareau maintains that she did not discover the harm done
to her by defendants' actions until she saw the 20/20 report.
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After the program, as she said in her deposition testimony,
Mrs. Lareau was "an emotional wreck" and began to suffer
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worsening headaches and painful "pulling" sensations in her
head.
Almost a year later, in the spring of 1990, on the
advice of her attorney, Mrs. Lareau went to Massachusetts
General Hospital to see a neurologist, Dr. Amy Pruitt, who
referred her to a neurosurgeon, Dr. Robert Ojemann. On
August 13, 1990, shortly after Mrs. Lareau had begun legal
action against Dr. Page and CPI, Dr. Ojemann operated on Mrs.
Lareau to remove the Thorotrast. Mrs. Lareau's post-surgical
report revealed a calcified mass, or granuloma, caused by the
Thorotrast. Following surgery, Mrs. Lareau suffered painful
cranial swelling and exhaustion, was unable to leave her
house, and was readmitted for observation. Her emotional
distress, the accompanying worsening headaches, and the
surgery allegedly affected her relationship with her husband
and caused both Ashley and Christopher to suffer emotional
problems, for which Christopher received psychological
counseling.
On June 27, 1990, the Lareaus commenced their
diversity action against Dr. Page and CPI. They brought suit
against CPI for negligence, breach of warranty, failure to
warn, loss of consortium, negligent infliction of emotional
distress, and violations of the Massachusetts Consumer
Protection Act, Mass. Gen. L. ch. 93A. Their action against
Dr. Page sought recovery for medical malpractice, loss of
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consortium, negligent infliction of emotional distress, and
violations of chapter 93A. The district court granted
defendants' motions for summary judgment based on the
applicable statutes of limitations with regard to all claims
brought by Mrs. Lareau, Mr. Lareau, and Ashley. The district
court granted CPI's motion for summary judgment on
Christopher's negligent-infliction-of-emotional-distress
claim; later, at the close of all of the evidence in
Christopher's trial against Dr. Page, the district court
granted Dr. Page judgment as a matter of law on Christopher's
negligent-infliction-of-emotional-distress claim.1 On the
eve of trial, the district court also granted CPI's motion
for summary judgment based on the learned-intermediary rule,
which disposed of all of the Lareaus' claims against CPI. At
the subsequent district court trial on Christopher's loss-of-
consortium claim against Dr. Page, the jury returned a
verdict for Dr. Page. This appeal followed.
II.
II.
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Standard of Review
Standard of Review
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1. Initially, the district court granted Dr. Page's motion
for summary judgment on Christopher's negligent-infliction-
of-emotional distress claim. Subsequently, the district
court vacated the summary judgment ruling and directed a
verdict in Dr. Page's favor on that issue "when it became
apparent that the interests of justice would be served
thereby." Lareau v. Page, 840 F. Supp. 920, 931 n.12 (D.
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Mass. 1993). As Fed. R. Civ. P. 50 no longer uses the term
"directed verdict," we refer to the district court as having
granted Dr. Page judgment as a matter of law.
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As always, we review a district court's grant of
summary judgment de novo and, like the district court, review
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the facts in a light most favorable to the non-moving party.
See, e.g., Crawford v. Lamantia, 34 F.3d 28, 31 (1st Cir.
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1994). Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c). Thus, the nonmovant bears the burden
of placing at least one material fact into dispute once the
moving party offers evidence of the absence of a genuine
issue. Crawford, 34 F.3d at 31; see also Celotex Corp. v.
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Catrett, 477 U.S. 317, 322 (1986).
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III.
III.
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Discussion
Discussion
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A. Massachusetts Statutes of Limitations and the Discovery
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Rule
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In cases such as this one, where jurisdiction is
based on diversity of citizenship, state statutes of
limitations apply. See Fidler v. Eastman Kodak Co., 714 F.2d
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192, 196 (1st Cir. 1983). Under Massachusetts law, the
Lareaus' medical-malpractice, negligence, and breach-of-
warranty claims are all subject to three-year statutes of
limitations. See Mass. Gen. L. ch. 260, 4 (medical
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malpractice); Mass. Gen. L. ch. 260, 2A (personal injury);
Mass. Gen. L. ch. 106, 2-318 (breach of warranty). The
Lareaus' consumer-protection claims are subject to a four-
year statute of limitations. See Mass. Gen. L. ch. 260,
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5A.
The parties do not dispute that the Massachusetts
discovery rule applies to the Lareaus' claims. Under the
discovery rule, a cause of action accrues when a person (1)
knows or has sufficient notice that s/he was harmed; and (2)
knows or has sufficient notice of the cause of the harm.
McGuinness v. Cotter, 591 N.E.2d 659, 665 (Mass. 1992); Bowen
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v. Eli Lilly & Co., 557 N.E.2d 739, 742 (Mass. 1990). The
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plaintiff need not know the full extent of the injury before
the statute begins to run. Bowen, 557 N.E.2d at 741. "The
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important point is that the statute of limitations starts to
run when an event or events have occurred that were
reasonably likely to put the plaintiff on notice that someone
may have caused her injury." Id. Once on notice, "`the
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potential litigant has the duty to discover from the legal,
scientific, and medical communities'" whether s/he has a
claim. Id. at 742 (quoting Fidler, 714 F.2d at 199); see
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also Catrone v. Thoroughbred Racing Ass'n of N. Am., Inc.,
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929 F.2d 881, 886-87 (1st Cir. 1991) (construing
Massachusetts law).
B. Application of the Discovery Rule to the Lareaus' Claims
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The Lareaus instituted this action on June 27,
1990. Accordingly, their claims are time barred if they
accrued before June 27, 1987 (or June 27, 1986, in the case
of their consumer-protection claims). The question before
us, then, is whether the summary judgment record permits us
to conclude that, as a matter of law, the Lareaus knew or had
sufficient knowledge that they had been harmed before June
27, 1987 (or June 27, 1986). We discuss Mrs. Lareau's
claims; the Lareaus' consumer-protection claims; and Mr.
Lareau's, Christopher's, and Ashley's loss-of-consortium and
emotional-distress claims in turn.
1. Mrs. Lareau's Claims
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Mrs. Lareau argues that the earliest date on which
her causes of action accrued was June 16, 1989, the day on
which she watched the 20/20 program on Thorotrast. Mrs.
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Lareau argues that before watching 20/20, she did not know
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what Thorotrast was or that it was harming her; nor did she
know that she had a Thorotrast granuloma in her brain. Mrs.
Lareau also argues that she did not suffer emotional distress
before watching 20/20. Because she instituted this action
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approximately one year after watching 20/20, Mrs. Lareau
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argues that her claims are well within the applicable
limitations periods. We do not agree.
Following careful review of the record, we hold as
a matter of law that Mrs. Lareau had sufficient notice to
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have discovered her claims upon receipt of Dr. Fischer's July
6, 1984 letter. In that letter, Dr. Fischer informed Mrs.
Lareau that she had Thorotrast in her brain, that there was a
"theoretical possibility" that the Thorotrast could cause her
to develop a brain tumor, and that she should have invasive
brain surgery to remove it. Mrs. Lareau understood the
import of Dr. Fischer's letter; as she said in her deposition
testimony, she "was like in shock that anything was wrong,"
and "was pretty shooken [sic] up."
Mrs. Lareau argues that she acted reasonably after
receiving Dr. Fischer's letter but still failed to discover
her claims. Accordingly, she contends, the statutes of
limitations should not have begun to run in 1984. After
reviewing the record, however, we cannot say that Mrs. Lareau
acted reasonably. Though she did seek additional opinions
from Drs. Scott and Cornell, at no point did she ever make
the most basic inquiry about what Thorotrast was or how it
might have been harming her. For this reason, her argument
that her causes of action did not accrue in July 1984 because
she was not told then what Thorotrast was must fail.
Mrs. Lareau next contends that her causes of action
did not accrue in 1984 because she was not told then that she
had a calcified mass, or granuloma, in her brain.2 While
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2. Because we must construe all of the facts in the light
most favorable to Mrs. Lareau, we assume that Thorotrast
caused Mrs. Lareau's granuloma and that it was not the
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Mrs. Lareau was not told in 1984 that she had a calcified
mass in her brain, Mrs. Lareau's doctors noted it on her
medical charts at that time. Had Mrs. Lareau inquired as to
whether Thorotrast had caused any damage, her physicians
might have told her that it could have been the cause of the
calcification. Additionally, had Mrs. Lareau asked to see
her medical charts, she herself would have seen the notation
regarding the calcification.
Mrs. Lareau argues, relying on McGuinness v.
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Cotter, 591 N.E.2d 659, 666 (Mass. 1992), that because she
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did not actually see her medical charts, the fact that her
doctors noted her calcification on them does not matter. We
do not agree. In McGuinness, the Massachusetts Supreme
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Judicial Court ("SJC") held that where a mother had no notice
that her son's cerebral palsy might have been caused by
medical malpractice, the fact that such cause was
contemplated in a doctor's report that she never saw did not
trigger the statute of limitations. Id. Unlike Mrs.
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McGuinness, Mrs. Lareau had notice that there was a problem;
she had been advised that she had a chemical in her brain
that could cause cancer, that its removal required brain
surgery, and that removal was recommended. Therefore, unlike
Mrs. McGuinness, who did not suspect and who had no reason to
suspect a problem, and who therefore had no reason to ask the
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natural consequence of her brain abscess.
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doctor to see his report, Mrs. Lareau was on notice and
therefore had reason to investigate further.
As for her negligent-infliction-of-emotional-
distress claims, Mrs. Lareau states that she did not suffer
distress until she watched 20/20 in 1989 and therefore that,
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regardless of when her other claims accrued, her emotional-
distress claims did not accrue until then. We do not agree.
In Massachusetts,
[w]here plaintiffs have suffered directly
inflicted personal injuries as a result
of a defendant's negligence, courts have
not been reluctant to allow recovery for
emotional distress, occurring
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contemporaneously with those personal
_________________________________________
injuries, as an additional element of
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damages. In these cases, recovery for
emotional distress [is] allowed as a
claim `parasitic' to the `host' claim of
damages for negligently inflicted
physical injuries.
Payton v. Abbott Labs, 437 N.E.2d 171, 176 (Mass. 1982)
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(citations omitted) (emphasis added). We think that the SJC
would apply the discovery rule to "parasitic" claims such
that they may be brought when they occur contemporaneously
with the discovery of the "host" claim. In this case,
however, we have held as a matter of law that Mrs. Lareau
should have discovered her "host" claims in July 1984. We
think that Massachusetts would not allow "parasitic" claims
to defeat the purposes of the discovery rule such that
plaintiffs who fail to discover their "host" claims in time
may nonetheless sue for later-discovered "parasitic" claims.
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Therefore, we hold that Mrs. Lareau's "parasitic" claim for
negligent infliction of emotional distress is barred.
In sum, we hold, as a matter of law, that Mrs.
Lareau had sufficient notice to have discovered her claims in
1984. Accordingly, with the exception of her consumer-
protection claim against Dr. Page, which we discuss below,
all of Mrs. Lareau's causes of action accrued in 1984 and are
therefore time barred.
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2. Chapter 93A
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The Lareaus argue that their chapter 93A claims
against Dr. Page did not accrue until 1990. The Lareaus base
their chapter 93A claims against Dr. Page on the fact that in
1984, when apparently contacted by Dr. Scott (with whom Mrs.
Lareau consulted), Dr. Page responded, "within the current
`ambiosis litigiosus', she [Mrs. Lareau] should be made aware
of the theoretical possibility that the Thorotrast may induce
a neoplasm." The Lareaus argue that Dr. Page committed an
unfair and deceptive act to the extent that he orchestrated a
plan to give Mrs. Lareau some sort of "notice" to trigger the
statute of limitations on her other claims, but not enough to
trigger any actual awareness of his negligence.
In light of the fact that the risk that Thorotrast
could induce a brain tumor when left in an abscess cavity was
merely theoretical until 1988, we hold that, as a matter of
law, Dr. Page did not violate chapter 93A when he recommended
that Mrs. Lareau be told of that theoretical possibility.3
3. Loss of Consortium
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Mr. Lareau, Christopher, and Ashley allege that
they did not suffer any loss of consortium until June 1989,
when Mrs. Lareau became an "emotional wreck" after she
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3. Because the Lareaus did not address in their brief when
their chapter 93A claims against CPI accrued, we consider the
argument as to CPI waived. See Alan Corp. v. International
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Surplus Lines Ins. Co., 22 F.3d 339, 343-44 (1st Cir. 1994).
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watched the 20/20 program on Thorotrast. Thus, Mr. Lareau,
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Christopher, and Ashley allege that they did not suffer any
loss of consortium until after Mrs. Lareau's claims were
already barred by the applicable statutes of limitations.
Mr. Lareau, Christopher, and Ashley argue, however, that even
if Mrs. Lareau's claims are time barred, their claims are
nevertheless timely filed because they did not accrue until
1989.
Massachusetts limits children's loss-of-consortium
claims to those children who are conceived before the
parent's injury. Angelini v. OMD Corp., 575 N.E.2d 41, 43
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(Mass. 1991). As Ashley was born in 1986, after her mother's
causes of action accrued, Ashley is barred from bringing her
loss-of-consortium claims.4
Massachusetts courts have not addressed, outside
the context of after-born children, whether loss-of-
consortium claims that accrue after the statute of
limitations has run on the underlying injury may be enforced.
"Absent controlling state court precedent, a federal court
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4. We agree with the district court that Massachusetts would
incorporate its discovery rule such that children who are
conceived before the parent discovers his/her claim -- in
other words, who are conceived before the parent's cause of
action accrues -- may recover for loss of parental
consortium. See Lareau v. Page, 840 F. Supp. 920, 930 (D.
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Mass. 1993). Thus, Angelini does not bar children who are
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conceived after the parent's injury but before the parent's
cause of action accrues. Because Christopher was born in
1983, before his mother's causes of action accrued, his
claims are not automatically barred under Angelini.
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sitting in diversity may certify a state law issue to the
state's highest court, or undertake its prediction when the
course the state courts would take is reasonably clear."
VanHaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 3
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(1st Cir. 1993) (quotation and citations omitted). We think
it is reasonably clear that the SJC, if faced with the issue,
would hold that after-arising loss-of-consortium claims
accruing after the statute of limitations has run on the
underlying injury cannot be enforced.
Under Massachusetts law, claims for loss of
consortium are independent, rather than derivative, of the
claim of the injured person. See Olsen v. Bell Tel. Lab.,
___ _____ _______________
Inc., 445 N.E.2d 609, 612 (Mass. 1983). "Since the causes of
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action are independent, the date of accrual of each action
must be determined separately." Id. at 613. This arguably
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implies that a claim for loss of consortium may accrue after
the cause of action for the underlying injury and therefore
that the loss-of-consortium plaintiff may be able to bring
his/her claim after the injured person is barred.
As noted above, however, Massachusetts recognizes
that it is important to limit after-arising loss-of-
consortium claims. In limiting children's loss-of-consortium
claims to those children who are conceived before the
parent's injury, the SJC explained:
If no restriction is placed on the class
of children who are eligible to recover
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for loss of parental consortium, a
defendant may become liable for the loss
of consortium several years, perhaps even
decades, after the injury to the parent.
As a matter of policy, however, it is
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important to limit the duration of the
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liability.
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Angelini, 575 N.E.2d at 43 (emphasis added).
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We think that the SJC, if faced with the issue,
would extend this reasoning to limit the duration of
liability for loss-of-consortium claims generally, such that
loss-of-consortium claims that do not accrue until after the
statute of limitations has run on the underlying injury may
not be enforced.5 If no such rule is imposed, then "a
defendant may become liable for the loss of consortium
several years, perhaps even decades, after the injury." Id.
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Because Mr. Lareau and Christopher allege that they
did not suffer any loss of consortium until 1989, their
claims accrued after Mrs. Lareau's claims were barred.
Accordingly, we hold that Mr. Lareau and Christopher may not
enforce their claims under Massachusetts law.
4. Mr. Lareau's, Christopher's, and Ashley's
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Negligent-Infliction-of-Emotional-Distress Claims
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Mr. Lareau, Christopher, and Ashley also bring
claims for negligent infliction of emotional distress. In
these claims, Mr. Lareau, Christopher, and Ashley seek to
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5. We note that Massachusetts bars recovery even to children
who are born during the parent's statutory period. See
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Angelini, 575 N.E.2d at 43.
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recover for injuries arising from their concern over harm to
Mrs. Lareau, specifically her brain surgery and her continued
uncertain prognosis.
Massachusetts does not apply the discovery rule to
claims for negligent infliction of emotional distress brought
to recover for injuries arising from concern over harm to
another. See Gore v. Daniel O'Connell's Sons, Inc., 461
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N.E.2d 256, 260 (Mass. App. Ct. 1984) ("the [emotional-
distress] claims fail because they are tied by the amended
complaint to the date of claimed awareness of Gore's
condition, i.e., almost three years after the accident").
Rather, in addition to the physical injury required for all
emotional-distress claims, "bystander" plaintiffs must show
physical proximity to the accident, temporal proximity to the
negligent act, and familial proximity to the victim.
Anderson v. W.R. Grace & Co., 628 F. Supp. 1219, 1229 (D.
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Mass. 1986) (summarizing Massachusetts cases).
Mr. Lareau, Christopher, and Ashley cannot show
physical or temporal proximity to Mrs. Lareau's 1970
operation, in which she was allegedly negligently injected
with Thorotrast. Accordingly, their emotional-distress
claims fail.
IV.
IV.
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Conclusion
Conclusion
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We hold that all of the Lareaus' claims, with the
exception of their chapter 93A claim against Dr. Page, were
barred by the applicable statutes of limitations and that Dr.
Page is entitled to judgment as a matter of law on the
Lareaus' chapter 93A claims against him.
Affirmed.
Affirmed.
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