A Significant Change in Wrongful Death Law in Massachusetts

In July of 2023, in Fabiano v. Philip Morris USA Inc., 492 Mass. 361 (2023), the Supreme Judicial Court (“SJC”) held that, despite the three-year statute of limitations for wrongful death claims under Massachusetts law, such claims can expire even prior to the decedent’s death. Before the person died, a potential wrongful death claim may be extinguished if the person did not pursue a personal injury claim for the injury that resulted in death and the personal injury limitations period expired. This far-reaching decision will have an impact not only on the practice of personal injury and wrongful death law, but also on the decision-making of families who have loved ones suffering from injuries that could lead to death.

Under the Fabiano decision, if the limitations period for a personal injury suit expired prior to the decedent’s death, and those same injuries caused the death, the representative of the decedent’s estate cannot bring a wrongful death action. The SJC held that the applicable statutory provisions require that, for there to be a wrongful death claim, the person who was injured must have had a viable personal injury claim at the time of their death. If the personal injury statute of limitations had already expired, then there was no viable personal injury claim, and no wrongful death claim can be brought. If there was a viable claim at the time of death, then the three-year limitations period for wrongful death claims is applicable, commencing at the time of the death.

The Fabiano case addressed two Superior Court decisions involving lung cancer. The claims were against tobacco companies for lung cancer and death caused by their cigarettes. Although both cases were brought within the three-year periods after death, when the decedents were alive, they did not bring personal injury claims against the tobacco companies within three years of their lung cancer diagnoses; in fact, they did not bring claims at all. Since the personal injury limitations had expired at the times of their deaths, their representatives could not bring wrongful death cases associated with their deaths from lung cancer.

The result of Fabiano is that families will have to address these legal decisions while their loved ones are dying, or else run the risk of losing the right to bring the wrongful death cases. Legal practitioners must also take Fabiano very seriously, as it has created a new deadline for filing suit. Since the SJC’s decision was based extensively on statutory construction, there is one clear solution: seek legislative change. The various bar and other legal associations, political organizations and others should consider proposing and lobbying for such changes. The SJC did not conclude that this rule was irreversible, it simply held that the current statutory framework required its conclusion.