Presslaff v. RobinsPresslaff v. Robins
The action, instituted in the Superior Court, included survivorship counts for decedent‘s pain and suffering prior to death. The trial judge denied defendants’ motion for summary judgment insofar as the survivorship counts were concerned, applying the rule that the discovery principle would apply thereto, Lopez v. Swyer, 62 N.J. 267 (1973), but granting the motion as to the wrongful death counts because the action had been instituted more than three years after decedent‘s death, and the discovery principle was deemed not available in respect of those counts under the limitation provision of the Wrongful Death Act. See
Plaintiff‘s decedent for several years prior to his death had been taking medication known as DBI and Diabinese for a diabetic condition. He died January 8, 1975, and plaintiff was told by an attending physician that the cause of death was heart failure. Plaintiff claims she did not suspect any relationship between the medication and decedent‘s death until certain media publicity in July or August 1977 reporting that “one of these drugs had been banned by the federal government because it was causing a great number of deaths and was a threat to the public health of the country.” At about that date she also learned that DBI had been taken off the market by the Federal Government because its side effects had “been linked to as many as 700 deaths each year.” The present complaint was filed March 28, 1978, joining various pharmaceutical companies and drug merchants and
The Wrongful Death Act limitations provision,
Every action brought under this chapter shall be commenced within 2 years after the death of the decedent, and not thereafter.
This statute, which fixes a specified objective event to incept the period of time within which an action must be brought, is to be contrasted with the general statute of limitations,
The discovery principle developed in our tort law is not applicable here. It is peculiar to statutes of limitation based upon accrual of the cause of action, accrual being postponed if plaintiff neither knows nor has reason to know the facts equating with the likely accrual of a cause of action. Burd v. New Jersey Bell Tel. Company, 76 N.J. 284, 291 (1978); Tevis v. Tevis, 155 N.J. Super. 273, 278-279 (App. Div. 1978), certif. granted 77 N.J. 483 (1978). But a statute forbidding the institution of an action, otherwise maintainable, later than a period of years after a fixed objective event, generally precludes the operation of the discovery rule. See Rosenberg v. North Bergen, 61 N.J. 190, 194-195, 199 (1972). The cause of action itself dies after that lapse of time. Id. at 199. The same effective consequence has been articulated in terms of negation of the
jurisdiction of a workers’ compensation tribunal, the statute precluding institution of a claim petition unless filed within two years after the accident. Schwarz v. Federal Shipbuilding and Dry Dock Co., 16 N.J. 243, 248 (1954). The instant statute is, of course, of the same character, as the limitation runs from a fixed objective event. [at 136]
The same principle has been applied by our Supreme Court. Lawrence v. Bauer Publishing & Printing Ltd., 78 N.J. 371 (1979), rev‘g on dissent below 154 N.J. Super. 271, 276 (App. Div. 1977) (discovery rule inapplicable to the one-year statute of limitations for libel contained in
Plaintiff acknowledges the force of the foregoing precedents but urges the unacceptabiilty as a matter of public policy of the anomaly that a survivorship action arising out of the marketing and administration of a drug to a decedent should be attended by the availability of the discovery principle to save the cause of action from the statute of limitations, while a wrongful death action for the same act of a tortfeasor would not be similarly advantaged. Plaintiff proposes to remedy this anomaly, at least in the limited situation where a single action for actionable conduct contains both survivorship and wrongful death counts, by invoking the underlined language from the following provision of the Wrongful Death Act,
When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.
We conclude that the trial judge was eminently correct in holding the wrongful death counts barred by the statute of limitations.
Plaintiff‘s appellate brief raises another point, difficult to understand, but apparently premised on the contention that her papers in opposition on the motion for summary judgment “give rise to an inference that the several defendants knew of the hazards associated with decedent‘s medication” prior to the running of the period of limitations, and that their conduct therefore in some way constitutes a concealment by them warranting invocation of the principle of estoppel against raising the statute of limitations as a defense. To the extent we understand the argument, we find it frivolous.
Judgment affirmed.