Lareau v. Page

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

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.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Chief Judge,

Boudin and Stahl, Circuit Judges.

Joan A. Lukey with whom Charles P. Kindregan and Hale and Dorr

were on brief for appellants.
John D. Cassidy with whom John M. Dellea and Ficksman & Conley

were on brief for appellee Larry K. Page, M.D.
Lawrence G. Cetrulo with whom Kevin E. Young, David B. Frederick,

and Peabody & Arnold were on brief for appellees Sequa Corporation and

Chromalloy Pharmaceutical, Inc.

November 14, 1994

STAHL, Circuit Judge. Plaintiffs-appellants Gail
STAHL, Circuit Judge.

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.

Background
Background

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.

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, 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.

Standard of Review
Standard of Review

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.

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

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.

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.

Catrett, 477 U.S. 317, 322 (1986).

III.
III.

Discussion
Discussion

A. Massachusetts Statutes of Limitations and the Discovery

Rule

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

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,

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

v. Eli Lilly & Co., 557 N.E.2d 739, 742 (Mass. 1990). The

plaintiff need not know the full extent of the injury before

the statute begins to run. Bowen, 557 N.E.2d at 741. "The

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

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

also Catrone v. Thoroughbred Racing Ass'n of N. Am., Inc.,

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

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.

Lareau argues that before watching 20/20, she did not know

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

approximately one year after watching 20/20, Mrs. Lareau

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

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.

Cotter, 591 N.E.2d 659, 666 (Mass. 1992), that because she

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

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.

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

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,

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

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. Abbott Labs, 437 N.E.2d 171, 176 (Mass. 1982)

(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

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

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

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).

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watched the 20/20 program on Thorotrast. Thus, Mr. Lareau,

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

(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

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.

Mass. 1993). Thus, Angelini does not bar children who are

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

(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

action are independent, the date of accrual of each action

must be determined separately." Id. at 613. This arguably

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

important to limit the duration of the

liability.

Angelini, 575 N.E.2d at 43 (emphasis added).

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.

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

Negligent-Infliction-of-Emotional-Distress Claims

Mr. Lareau, Christopher, and Ashley also bring

claims for negligent infliction of emotional distress. In

these claims, Mr. Lareau, Christopher, and Ashley 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.

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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

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.

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.

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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