Category Archives: New Jersey Perosnal Injury Update

New Jersey Perosnal Injury Update

Federal Court Rules Discovery Rule Does Not Apply to Wrongful Death Actions

NJ District Judge Freda Wolfson

Fuqua v. Bristol-Myers Squibb Company, No. 11-6043; U.S. District Court (DNJ); opinion by Wolfson, U.S.D.J.; filed February 15, 2013. DDS No. 36-7-9070 [31 pp.]

These toxic-tort actions were brought by administrators or administratrices on behalf of the respective decedents (collectively, plaintiffs) against defendant Bristol-Myers Squibb Co. (BMS). Defendant removed these cases from state court, where a parallel mass tort litigation is pending.

Plaintiffs seek, inter alia, pecuniary losses that allegedly arose from the decedents' exposure to, and death from, toxic substances emitted from a BMS facility located in New Brunswick, pursuant to the New Jersey Wrongful Death Act.

Defendant moves to dismiss the claims for failure to comply with the act's two-year statute of limitations. 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.

Held: The discovery rule does not apply to toll the New Jersey Wrongful Death Act's two-year statute of limitations. Plaintiffs failed to plead the elements of fraudulent concealment with the required specificity. Plaintiffs' wrongful-death claims are dismissed without prejudice.

In the parallel state mass tort actions, the state court held that the Supreme Court of New Jersey “may be inclined” to apply the discovery rule for tolling purposes. Resting its decision on a theory of fraudulent concealment, the state court found that if there is evidence the defendant's conduct prevent plaintiff from ascertaining its identity in order to bring wrongful-death claims, equitable tolling would be appropriate. The state court refused to dismiss the state plaintiffs' wrongful-death claims without first affording plaintiffs an opportunity to take discovery to explore their equitable defenses to the statute-of-limitations bar.

Here, plaintiffs rely on the state court's decision to assert that the discovery rule applies to toll the statute of limitations under the Wrongful Death Act. However, although the state court recognized that the Supreme Court has permitted certain equitable principles to toll the Wrongful Death Act, none of those was in the context of the discovery rule. The state court permitted the state plaintiffs to proceed with discovery on a defense of fraudulent concealment.

The court holds that, consistent with state and federal authorities in New Jersey, and a lack of any persuasive policy or legislative rationale to the contrary, the discovery rule does not apply to toll the statute-of-limitations provision under the Wrongful Death Act. Plaintiffs' wrongful-death claims accrued when the decedents died allegedly as a result of defendant's wrongdoing. The decedents' deaths provided these plaintiffs the notice to investigate the cause of death through the means available at the time of death. There is no basis to extend the application of the discovery rule to permit the filing of wrongful-death actions beyond the specified statutory period.

The court next determines whether the doctrine of fraudulent concealment applies as a means to toll the statute of limitations here. Plaintiffs argue that because defendant failed and refused to disclose to its neighbors and government officials the extent and danger of the BMS toxic contamination, the factual basis for plaintiffs' claims was fraudulently concealed from them. Plaintiffs maintain that the fraudulent nature of defendant's actions made it impossible for them to be diligent in pursuing their claims.

The N.J. Supreme Court has not determined whether fraudulent concealment would toll the statute of limitations under the Wrongful Death Act. Because of the limiting language of the statute-of-limitations provision in the Wrongful Death Act, the court, to predict how the N.J. Supreme Court would rule on the issue, would necessarily need to engage in an in-depth analysis of public policy and legislative intent before applying the doctrine. However, it is prudent for a federal court sitting in diversity to allow state courts to interpret their own state laws and the applications of such laws. More important, plaintiffs have not sufficiently pleaded the elements of fraudulent concealment to warrant its application.

Aside from conclusory allegations of fraud, plaintiffs have not pleaded the elements, nor the circumstances of, fraudulent concealment to pass Rule 12(b)(6) muster. Plaintiffs' theory of concealment is based on the allegations that because defendant was aware that certain contaminants were discharged at the BMS site, defendant should have disclosed that information to the public, and the failure to do so was fraudulent and to plaintiffs' detriment. As to defendant's conduct of fraudulent concealment, plaintiffs' allegations are not sufficient to meet the strictures of Rule 9(b). Plaintiffs fail to allege the specifics of the concealment. Plaintiffs' averment of fraud is only supported by conclusory, generalized facts, which are prohibited by Rule 9(b).

Additionally, plaintiffs fail to properly plead the remaining factors of fraudulent concealment. Although plaintiffs allege that they were unable to obtain access to the concealed information, they fail to aver what actions they took to discover that information. The complaints are also devoid of any facts relating to the exercise of due diligence on the part of plaintiffs to discover the existence of fraud notwithstanding defendant's alleged wrongdoing.

The state court, in In re Bristol-Myers, expressed that there was a dearth of evidence in 2008 evincing fraudulent concealment and permitted the state plaintiffs to proceed with discovery. Now, plaintiffs in these federal actions, having had the benefit of the state court litigation — as they are represented by the same counsel — have filed complaints that are substantially similar to those brought in the state court. No more specifics are included to buttress plaintiffs' claims of fraudulent concealment. These pleadings do not meet the requirements of a properly pleaded concealment defense. Therefore, there is no basis for the court to apply the doctrine to toll plaintiffs' untimely wrongful-death claims and the claims are dismissed without prejudice.

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