On Appeal From The United States District Court For The District Of New Jersey (D.C. Civil No. 271-71).
Adams, Gibbons and Rosenn, Circuit Judges. Rosenn, Circuit Judge, Concurring and Dissenting.
This is an appeal from an order in a diversity case granting defendant's motion for summary judgment.*fn1 The original plaintiffs were Florence L. Goodman and her husband, Robert J. Goodman. While the action was pending Florence Goodman died, and Robert Goodman, as executor of her estate, was substituted as the real party in interest pursuant to Rule 17(a), Fed. R. Civ. P. The defendant is Mead Johnson & Company, the manufacturer of the estrogen compound Oracon, which Florence Goodman used from April 4 through June 19, 1967 and which plaintiff alleges caused the injuries at issue in this case. The complaint was filed on February 25, 1971, more than three years and eight months after the last use of Oracon. The district court held that the New Jersey two year statute of limitations applicable to personal injuries, N.J.S.A. 2A:14-2, barred the various claims asserted in this case, even taking into account that state's "Discovery Rule" exception.*fn2 Because there are genuine issues of material fact as to the date of discovery of the several claims against Mead Johnson which could not be resolved on a motion for summary judgment, we reverse.
Originally the plaintiffs asserted claims for negligence and breach of implied warranty of fitness for intended use, claiming:
(1) on behalf of Florence Goodman that use of Oracon caused thrombophlebitis;
(2) on behalf of Florence Goodman that use of Oracon caused carcinoma of the right breast resulting in a mastectomy;
(3) on behalf of Robert Goodman, an action per quod consortium amisit.
After his wife's death on May 22, 1973, Robert Goodman, with the court's permission, filed an amended complaint in which he substituted himself, as executor of his wife's estate, as a plaintiff. However, in the amended complaint he also included a wrongful death claim under N.J.S.A. 2A:31-1 et seq.
Thus, besides the decedent's thrombophlebitis and cancer personal injury claims and Robert Goodman's per quod claim there was before the court a statutory wrongful death claim. The court's rulings on these claims are challenged on appeal.
II. The Wrongful Death Claim
The district court disposed of the wrongful death claim in a footnote as follows:
This action was undertaken without leave of court or written consent of the adverse party as required by Rule 15 of the Federal Rules of Civil Procedure. Florence Goodman died May 22, 1973. (Plaintiff's Answer to Defendant's Supplementary Interrogatory No. 1(a)). Plaintiff had over one year after the death of Florence Goodman to allege these new causes of action. Now, on the eve of trial of this three year old case, after the completion of discovery, he attempts to inject new causes of action into this law suit through an improper use of the Federal Rules of Civil Procedure.
To permit plaintiff to amend its complaint will undoubtedly cause the defendant to suffer prejudice in its defense of this suit. Discovery, now completed, will have to be re-instituted and the trial date of this aged case will be delayed again. . . . 388 F. Supp. at 1071-72 n.2.*fn3
This reasoning for relegating the plaintiff to a separate lawsuit to assert his wrongful death claim is completely unsatisfactory. Since the liability issues in this survivor's wrongful death action would be identical to those involved in the personal injury claims, the only possible "prejudice" to Mead Johnson if the amendment were permitted would be the necessity for further discovery regarding the separate items of damage recoverable under N.J.S.A. 2A:31-5*fn4 and the persons entitled to such damages under N.J.S.A. 2A:31-4.*fn5 The court undoubtedly has a substantial interest in disposing of old cases. But that interest is not so great as to require a litigant to initiate a separate lawsuit on a wrongful death claim growing out of the same transactions giving rise to the pending causes of action. Thus, Goodman urges that the refusal of the district court to permit the amendment in the circumstances of this case where there would be no substantial prejudice to the adverse party and there is no evidence that the recent assertion of the wrongful death claim is a dilatory trial maneuver was an abuse of discretion.*fn6
A conclusion that the court should not have refused to permit the amendment, however, would not end the inquiry because a question would remain whether or not the wrongful death action is time-barred. The New Jersey wrongful death action has a separate statute of limitations, N.J.S.A. 2A:31-3, which provides that:
Every action brought under this chapter shall be commenced within 2 years after the death of the decedent, and not thereafter.
The amended complaint in this case was filed on June 25, 1974, within two years of Mrs. Goodman's death. But this fact alone does not mean that the wrongful death claim is timely. While the New Jersey courts have recognized that the survivor's claim under the Wrongful Death Act is an independent cause of action with its own limitations period and not a derivative of the decedent's personal injury claim, they have placed a gloss on the literal language of N.J.S.A. 2A:31-1 and N.J.S.A. 2A:31-3 inextricably linking the two. According to this gloss a cause of action under the Wrongful Death Act does not vest in the survivor if the decedent died after the expiration of the two year statutory period for commencing a personal injury action without having done so.*fn7 Thus, the viability of the wrongful death action in this case turns on whether or not Mrs. Goodman's personal injury action was time-barred when it was filed. If it was, then the wrongful death action was also barred even though brought within the time permitted by N.J.S.A. 2A:31-3. If it was not, the wrongful death claim was timely and should be heard. Redick v. Rohm & Haas Co., supra. We turn, then, to the New Jersey law on limitations of personal injury actions.
III. The New Jersey Personal Injury Statute of Limitations and the "Discovery Rule "
N.J.S.A. 2A:14-2 provides that:
Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the ...