Professional Documents
Culture Documents
____________________
her
husband
Plaintiffs-appellants
Michael
Lareau,
and their
Gail
children,
Dr.
Larry
K.
Page
and
parent-subsidiary
(collectively, "CPI")
for
injuries
arising from
the
of
the district
jury
court, and
verdict in
his
Christopher appeals
loss-of-consortium action
the statutes
and that
against Dr.
decided by a jury.
of limitations
except their
an adverse
bar all
of the
consumer-protection claims
the Lareaus
are not
consumer-protection
claims
We hold
Lareaus'
against Dr.
entitled to
against
recover on
Dr.
Page.
17),
symptoms,
where
March 1970,
suffering
was
from
Page performed
severe
admitted to
Fearing that
Mrs. Lareau
headaches
Children's
care of Dr.
(then Gail
Hospital
flu-like
in Boston,
Page, a neurosurgeon.
a malignant
-22
and
Melanson,
brain tumor,
Dr.
Dr. Page
capsule of tissue
size of
a tennis ball.
cavity
to
facilitate
observation.
its
of
consent for
using it prior
abscess
small amount of
abscess
radiologic
her parents
her
He then injected a
in the brain.
the dangers
cavity.
enhanced
x-rays, Dr.
Lareau's
abscess.
of Thorotrast
to injecting the
Four
days
Thorotrast-
the recurrence
aspirated the
their
substance into
later, using
Page detected
He
or obtain
or
abscess
of Mrs.
again
and,
healthy
for
Mrs.
Burbank Hospital in
headaches
physician,
remained
severe
Lareau
admitted to the
grand mal
seizure.
Her attending
on admission
revealed "a
large calcified
mass in
the left
left
frontal
sinus .
probably
due to
retained
contrast
time of the
removal of her
-33
brain
abscess,
rather
than
calcification."
Mrs.
Lareau
discharge
from Burbank
Children's
consulted
from
her
Hospital in
with Dr.
Mrs.
Fischer, a neurosurgeon
Boston.
Two weeks
after
she
Fischer, Mrs.
Lareau received
a letter
6, 1984, in
which he warned
her that
there was a
Hospital,
"theoretical possibility"
that
was left
following
could
"induce
a tumor
total
period
of about
treatment of
in surrounding
20
years."
that "the
Thorotrast
your brain
abscess"
brain tissue
over a
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
a second opinion.
Thorotrast,
Dr.
R.
Scott did
not
recommend
surgery.
After
in her deposition
-44
Mrs.
Lareau
continued
to
consult
returning in
September 1985
scans.
no
Both
tumor
formation.
In
1986,
Dr.
Fischer,
for cranial
CT
of Thorotrast but
between
these
two
letter dated
Dr. Fischer
went to
see
Dr. Fischer
time referring
to the
in March
1989.
Dr.
report of
brain cancer
in the
literature.
On June 16, 1989,
the
dangers of
Thorotrast on
the
ABC News
report on
program 20/20.
_____
Mrs. Lareau maintains that she did not discover the harm done
to her by defendants' actions until she saw the 20/20 report.
_____
After the program,
Mrs.
Lareau was
as she said in
"an
emotional wreck"
-55
and began
to suffer
her
head.
Almost
advice
of her
General Hospital
to see a
referred
her to
Lareau went
to Massachusetts
neurosurgeon, Dr.
Robert
Pruitt, who
Ojemann.
On
legal
action against Dr. Page and CPI, Dr. Ojemann operated on Mrs.
Lareau to remove the Thorotrast.
swelling and
and was
distress,
exhaustion,
readmitted for
the
accompanying
was unable
observation.
worsening
to leave
her
Her emotional
headaches,
and
the
and caused
suffer emotional
both Ashley
problems,
for
which
and Christopher to
Christopher
received
psychological
counseling.
On
June 27,
1990,
the
Lareaus
for negligence,
warn, loss of
distress,
Protection
Dr.
commenced
breach of warranty,
failure to
and
violations
of
the
Massachusetts
Page sought
recovery for
their
emotional
Consumer
medical malpractice,
loss of
-66
of
defendants'
chapter
motions
93A.
for
of emotional distress,
The
district
summary
judgment
court
based
granted
CPI's
motion
granted
on
the
and
for
summary
The district
judgment
on
Christopher's
negligent-infliction-of-emotional-distress
claim;
the
later, at
Christopher's trial
close
against
of
all
Dr. Page,
of
the
the
evidence
district
in
court
claim.1
On
the
CPI's motion
At
claim
against
Dr.
Page, the
jury
returned
____________________
1. Initially, the district court granted Dr. Page's motion
for summary judgment on Christopher's negligent-inflictionof-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.
______
____
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.
-77
As always,
we review
a district court's
grant of
v. Lamantia,
________
34 F.3d 28,
31 (1st
Cir.
1994).
Summary judgment
depositions,
answers to
file,
is no
genuine issue
as to
Fed.
R. Civ. P. 56(c).
of placing at least
moving
a judgment as a matter of
the
law."
party offers
issue.
any material
admissions on
evidence of
Crawford, 34 F.3d at
________
the absence
once the
of a
genuine
Celotex Corp. v.
_____________
on
diversity
limitations apply.
192,
196
such as
(1st Cir.
of
1983).
medical-malpractice,
warranty
claims are
See
___
state
statutes
of
Lareaus'
limitations.
jurisdiction is
Under
negligence,
all subject
Mass. Gen.
Massachusetts
and
to three-year
L.
ch.
260,
law, the
breach-of-
statutes of
4
(medical
-88
Gen. L.
ch. 106,
2-318 (breach of
Lareaus' consumer-protection
year statute of
2A (personal injury);
warranty).
limitations.
See
___
to a
The
four-
260,
5A.
The parties
discovery rule
applies to
the Lareaus'
the Massachusetts
claims.
Under
the
person (1)
knows
knows
or has
sufficient notice
of the
cause of
the harm.
1990).
The
"The
starts to
run
when
an
event
or
events
have
occurred
that
were
caused her
injury."
and medical
Id. at 742
___
also Catrone v.
____ _______
929
F.2d
Id.
___
Once
on notice,
whether
"`the
the legal,
s/he has
F.2d at 199);
a
see
___
881,
886-87
(1st
Cir.
1991)
(construing
Massachusetts law).
B. Application of the Discovery Rule to the Lareaus' Claims
____________________________________________________________
-99
The
1990.
Lareaus
Accordingly,
instituted this
their claims
claims).
on
time barred
their consumer-protection
us, then, is
are
action
The
June 27,
if they
in the case
question before
record permits us
1987 (or
claims;
the
June
that they
27, 1986).
We discuss
Lareaus'
before June
Mrs.
Lareau's
consumer-protection claims;
and
Mr.
loss-of-consortium and
she watched
the
20/20 program
_____
on Thorotrast.
day on
Mrs.
know
did she
Mrs.
Lareau also argues that she did not suffer emotional distress
before watching
approximately
argues
that
20/20.
_____
one year
her
after
claims
limitations periods.
are
watching
well
law that
20/20, Mrs.
_____
within
the
Lareau
applicable
We do not agree.
this action
-1010
to
1984 letter.
In
Lareau that she had Thorotrast in her brain, that there was a
"theoretical possibility" that the Thorotrast could cause her
to develop a brain
brain
surgery to
it.
Mrs.
have invasive
Lareau understood
the
wrong,"
her
Accordingly,
claims.
limitations
should not
she
failed to discover
contends,
have begun
after
to run
the statutes
in 1984.
of
After
Though
and Cornell, at no
her.
additional opinions
ever make
or how it
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
____________________
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
-1111
Mrs. Lareau
mass
in her
brain, Mrs.
in 1984 that
Lareau's doctors
Thorotrast
might have
she had
had caused
a calcified
noted it
on her
damage, her
physicians
calcification.
Additionally, had
to see
Lareau
argues,
relying
on
McGuinness
__________
v.
she
doctors
do
agree.
not
In
McGuinness,
__________
the Massachusetts
We
Supreme
her son's
medical
malpractice,
contemplated
trigger
cerebral
palsy might
the
fact
have
that
the statute
that
such
cause
by
was
limitations.
Id.
___
been caused
could cause
cancer,
Mrs.
a chemical
that its
Unlike
in her brain
removal required
brain
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
____________________
natural consequence of her brain abscess.
-1212
doctor
to
see his
report, Mrs.
Lareau
was on
notice and
for
distress claims,
her
negligent-infliction-of-emotional-
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
_________
contemporaneously with those
personal
_________________________________________
injuries, as an additional element of
________
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.
______
N.E.2d
171, 176
apply the
that they
with
discovery rule
may be
however, we have
should
of
the "host"
held as a
defeat
the
purposes of
claims such
occur contemporaneously
claim.
matter of law
1982)
to "parasitic"
the discovery
(Mass.
In
this
case,
that Mrs.
claims in July
Lareau
1984.
discovery
We
claims
rule such
that
in time
-1313
Therefore, we
sum, we
hold, as
a matter
of law,
that Mrs.
Accordingly, with
protection claim
the
against Dr.
exception
of her
Page, which we
consumer-
discuss below,
-1414
2.
Chapter 93A
___________
The Lareaus
argue
that their
chapter 93A
claims
their chapter 93A claims against Dr. Page on the fact that in
1984, when apparently contacted by
Lareau consulted),
Dr. Page
responded, "within
the current
neoplasm."
The Lareaus
Page committed an
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
__________________
Mr. Lareau,
they did not suffer
when
Mrs.
Lareau
Christopher,
and Ashley
an "emotional
wreck"
allege
that
June 1989,
after
she
____________________
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
___ __________
_____________
Surplus Lines Ins. Co., 22 F.3d 339, 343-44 (1st Cir. 1994).
______________________
-1515
of consortium
already barred
on Thorotrast.
Mr. Lareau,
until
by the
Thus,
after Mrs.
applicable
suffer any
Lareau's claims
statutes of
were
limitations.
nevertheless timely
time barred,
their claims
are
1989.
Massachusetts limits
claims
to
parent's
those
injury.
(Mass. 1991).
children
children's loss-of-consortium
who
Angelini v.
________
are
conceived
before
the
N.E.2d 41, 43
her
loss-of-consortium claims.4
Massachusetts
the
context
consortium
of
claims
courts
after-born
that
have not
children,
accrue
after
addressed, outside
whether
the
loss-of-
statute
of
state court
precedent, a federal
court
____________________
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.
sitting in diversity
state's highest
course
may certify
a state law
the state
courts
would take
issue to
is reasonably
clear."
the
citations omitted).
1, 3
We think
hold
that
accruing after
after-arising
the
statute of
loss-of-consortium
limitations has
claims
run on
the
loss
of
Massachusetts
are independent,
the injured person.
law,
claims
for
of the
of accrual of
Id. at 613.
___
each action
This arguably
loss-of-consortium plaintiff
therefore
may be able
to bring
it
is
important
consortium claims.
claims
to
those
however, Massachusetts
to
limit
recognizes
after-arising
loss-of-
who
are
conceived
before
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.
the
extend
this
if faced
to
limit
with the
the
duration
be enforced.5
defendant
may
become
such rule
liable
of
such that
If no
issue,
is
for the
injury may
imposed, then
loss
of
"a
consortium
Id.
___
not suffer
claims
accrued
any
loss of
after
Mrs.
consortium
Lareau's
until 1989,
claims
were
their
barred.
Mr. Lareau's,
Christopher's, and
Ashley's
_______________________________________________
Negligent-Infliction-of-Emotional-Distress Claims
_________________________________________________
Mr.
claims for
these
Lareau,
Christopher,
negligent infliction
claims, Mr.
and Ashley
also
bring
of emotional distress.
Lareau, Christopher,
and Ashley
In
seek to
____________________
5. We note that Massachusetts bars recovery even to children
who are born during the parent's statutory period.
See
___
Angelini, 575 N.E.2d at 43.
________
-1818
256,
Gore v.
____
complaint
to
to
Ct.
1984) ("the
[emotional-
are tied by
the amended
the
condition, i.e.,
over harm
260 (Mass.
distress] claims
from concern
date
App.
of
almost three
Rather, in addition
claimed
years
awareness
after the
of
Gore's
accident").
plaintiffs must
show
act,
and
familial
proximity
to
the
victim.
Anderson v.
________
F. Supp. 1219,
1229 (D.
or
operation, in
with
Lareau, Christopher,
temporal
proximity
which she
Thorotrast.
and
to
Ashley cannot
Mrs.
was allegedly
Accordingly,
Lareau's
show
1970
negligently injected
their
emotional-distress
claims fail.
IV.
IV.
___
Conclusion
Conclusion
__________
-1919
with the
Page, were
is
entitled to
judgment
as a
matter
of law
on the
-2020