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COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, SS SUPERIOR COURT DEPARTMENT OF
THE TRIAL COURT
MARY FULLER, Individually and as Per-
sonal Representative of the Estate of JOHN
FULLER,
Plaintiff,
v. Case No. 1672-CV-00154
R. J. REYNOLDS TOBACCO COMPANY,
GARBER BROS., INC., and CUMBER-
LAND FARMS, INC.,
Defendants.
MEMORANDUM IN SUPPORT OF DEFENDANTS’
MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
Defendants R.J. Reynolds Tobacco Company, Garber Bros., Inc., and Cumberland Farms,
Inc. (collectively, “Defendants”) seek judgment on the pleadings with respect to Plaintiff Mary
Fuller’s wrongful-death action, which includes claims for breach of warranty, civil conspiracy,
and negligence. The Massachusetts Wrongful Death Act creates a cause of action for wrongful
death that is “derivative” in nature, and thus “precludes wrongful death actions unless decedents
could have brought an action for the injuries that caused their death.” GGNSC Admin. Servs., LLC
v. Schrader, 484 Mass. 181, 190–91 (2020). Last year, the Massachusetts Supreme Judicial Court
held—on two occasions—that if a decedent would have been barred from bringing a claim while
living, his personal representative is likewise barred from asserting that claim in a wrongful-death
action. Id.; Doherty v. Diving Unlimited Int’l, Inc., 484 Mass. 193, 196 (2020).
This settled rule requires judgment in Defendants’ favor on Ms. Fuller’s wrongful-death
count—which includes the claims for breach of warranty, civil conspiracy, and negligence (Count
II). According to the pleadings, Mr. Fuller was diagnosed with lung cancer in 2012, but did not
file an action for his lung cancer by 2015, the latest possible date provided under the three-year
statute of limitations for tort and warranty claims. Because the tort and warranty claims based on
Mr. Fuller’s lung cancer were time barred when he passed away in 2016, Ms. Fuller cannot assert
those claims in a wrongful-death action. And because Ms. Fuller’s wrongful-death action fails as
a matter of law, her claim to loss-of-consortium damages likewise fails (Count III). Accordingly,
the Court should enter judgment in Defendants’ favor on Counts II and III of the Amended Com-
plaint.
BACKGROUND
Plaintiff Mary Fuller is the personal representative of the estate of John Fuller. See Am.
Compl. ¶ 1 (Aug. 7, 2017). Ms. Fuller claims that her husband was addicted to smoking and that
he was “unable to stop smoking cigarettes until 2012, when he was diagnosed with lung cancer.”
Id. ¶ 30. Mr. Fuller filed this action on March 21, 2016, before his passing, asserting only one
claim: unfair and deceptive acts and practices in violation of the Massachusetts Consumer Protec-
tion Act, G. L. c. 93A, §§ 2, 9, which is governed by a four-year statute of limitation. See Compl.
¶¶ 36–40 (March 21, 2016). Mr. Fuller died on November 13, 2016, allegedly of lung cancer
caused by an addiction to smoking. Am. Compl. ¶ 31. On August 7, 2017, Ms. Fuller amended
the complaint to add two counts that her husband never brought: (1) a wrongful-death count, which
alleges claims for breach of warranty, civil conspiracy, and negligence, and (2) a loss-of-consor-
tium count. Id. ¶¶ 38–69.
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Although not necessary for purposes of this motion (which takes the allegations in the
Amended Complaint of Mr. Fuller’s injury at face value), medical records confirm that Mr. Fuller
was diagnosed with lung cancer in 2012. On March 14, 2012, Mr. Fuller underwent a chest CT
scan that revealed a heterogeneous mass in his right lung. See Ex. A (Medical Records). A week
later, on March 21, 2012, a bronchoscopy revealed an irregular mass that was obstructing the bron-
chus to the right upper lobe, and pathology was interpreted as showing non-small cell carcinoma,
favoring lung adenocarcinoma. See Ex. B (Medical Records).
STANDARD
“After the pleadings are closed but within such time as not to delay the trial, any party may
move for judgment on the pleadings.” Mass. R. Civ. P. 12(c). “A motion for judgment on the
pleadings pursuant to rule 12(c) is a challenge to the legal sufficiency of a complaint.” Welch v.
Sudbury Youth Soccer Ass’n, Inc., 453 Mass. 352, 353 (2009). “A defendant’s rule 12(c) motion
is ‘actually a motion to dismiss . . . [that] argues that the complaint fails to state a claim upon which
relief can be granted.’” Jarosz v. Palmer, 436 Mass. 526, 529 (2002) (alterations in original)
(citation omitted). “In deciding such a motion, all factual allegations pleaded by the nonmoving
party must be accepted as true, and contravening assertions by the moving party are to be taken as
false.” Welch, 453 Mass. at 354. “Judgment on the pleadings may be entered if a plaintiff fails to
present sufficient facts in the complaint to support the legal claims made.” Id. (citation omitted).
Judgment “based upon the expiration of a statute of limitations is appropriate where it is
undisputed from the face of the complaint that the action was commenced beyond the applicable
deadline.” Comm. v. Tradition (N. Am.) Inc., 91 Mass. App. Ct. 63, 70 (2017) (addressing a motion
to dismiss); see also Frankston v. Denniston, 74 Mass. App. Ct. 366, 367 (2009) (affirming judg-
ment on the pleadings under rule 12(c) because “the complaint was filed beyond the three-year
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statute of limitations”); accord Epstein v. Seigel, 396 Mass. 278, 278–79 (1985) (affirming dis-
missal where the “allegations of the complaint clearly reveal[ed] that the action was commenced
beyond the time constraints of the statute of limitations”).
Tort and breach-of-warranty claims are subject to a three-year statute of limitations. See
G.L c. 260, § 2A (“[A]ctions of tort . . . shall be commenced only within three years next after the
cause of action accrues.”); G. L. c. 106, § 2-318 (“All actions [for breach of warranty, express or
implied, or for negligence] shall be commenced within three years next after the date the injury
and damage occurs.”). The statutes of limitation on such claims begin “to run when a reasonably
prudent person (in the tort claimant’s position), reacting to any suspicious circumstances of which
he might have been aware . . . should have discovered that he had been harmed” by the defendant’s
conduct. Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 228 (2009) (citation omitted). Here,
the latest date that the statute of limitations could possibly have begun to run is when, according
to the Amended Complaint, Mr. Fuller was diagnosed with lung cancer in 2012. See Evans v.
Lorillard Tobacco Co., 465 Mass. 411, 449–50 (2013) (holding the plaintiff’s tort and breach-of-
warranty claims were not barred by the three-year statute of limitations in G. L. c. 260, § 2A,
because complaint was filed within the three-year period after the diagnosis of decedent’s lung
cancer).
ARGUMENT
I. The Wrongful-Death Cause Of Action Fails As A Matter Of Law Because Mr.
Fuller’s Underlying Tort And Warranty Claims Are Time Barred.
The Supreme Judicial Court recently held that the Wrongful Death Act created a wrongful-
death action that is “derivative of the decedent’s action,” which “means that ‘the beneficiaries of
the death action can sue only if the decedent would still be in a position to sue.’” GGNSC, 484
Mass. at 185 (quoting Ellis v. Ford Motor Co., 628 F. Supp. 849, 858 (D. Mass. 1986)). In doing
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so, the SJC adopted “the majority rule that precludes wrongful death actions unless decedents
could have brought an action for the injuries that caused their death.” Id. at 191; see also Doherty,
484 Mass. at 194 (“[T]he beneficiaries of a wrongful death action have rights that are derivative
of, rather than independent from, any claim the decedent could have brought for the injuries caus-
ing his death.”). Massachusetts has joined other states in holding that “where an action for the
injuries causing the decedent’s death ‘could not have been brought by the deceased, had he sur-
vived, . . . no right of action [for wrongful death] . . . can vest in the deceased’s administrator or
representative for the benefit of the beneficiaries’ because ‘even though the right created by the
statute is a new cause of action, it is still derivative and dependent on the continuance of a right in
the decedent to maintain an action for his injury up to the time of his death.’” GGNSC, 484 Mass.
at 190 (alterations in original) (quoting 12 Am. Jur. Trials, Wrongful Death Actions § 16, at 344–
45 (1966)). Put simply, one element of a wrongful-death action requires the plaintiff to prove that
the decedent could have recovered damages for the asserted claims had he not died.
Thus, under the Wrongful Death Act, if the decedent would have been barred by the statute
of limitations from asserting a particular claim at the time his death, then there is no cognizable
wrongful-death action for that claim. See id. at 185; Doherty, 484 Mass. at 194. Stated another
way, if an individual fails to timely file a lawsuit for personal injury or breach of warranty, the
derivative nature of the Wrongful Death Act means that those claims are not revived for a wrong-
ful-death claim based on the same injury or breach.
The SJC’s previous ruling in a smoking-and-health case like this one is instructive. In
Evans, a smoker brought a tort action against a cigarette manufacturer while she was alive for
smoking-related injuries; after her death, her son amended the complaint to allege wrongful death.
465 Mass. at 415. Under the Wrongful Death Act, the son had a cognizable wrongful-death action
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for tort and warranty claims only if his mother could have brought those claims before she died.
In assessing whether the tort and warranty claims were time barred, the SJC looked to the date of
manifestation of the death-causing injury. Id. at 449–50. The Court determined that the decedent
had, prior to her death, filed an action preserving these claims within three years of manifestation
of the disease that caused her death, and thus the derivative wrongful-death action asserting tort
and warranty claims was not barred. Id. The Court’s analysis would have been unnecessary if
time-barred claims could be revived merely by filing a wrongful-death action based on the same
conduct within three years from the date of death. See G. L. c. 229, § 2.
Here, Mr. Fuller could not have brought tort and warranty claims before he died because
those claims were time barred. Thus, Ms. Fuller cannot assert those same claims under the Wrong-
ful Death Act. Each claim is subject to a three-year statute of limitations. See G.L c. 260, § 2A
(“[A]ctions of tort . . . shall be commenced only within three years next after the cause of action
accrues.”); G. L. ch. 106, § 2-318 (“All actions [for breach of warranty, express or implied, or for
negligence] shall be commenced within three years next after the date the injury and damage oc-
curs.”). The three-year clock on those claims began to run, at the latest, in 2012 when Mr. Fuller
was diagnosed with lung cancer, a disease caused by smoking. See Am. Compl. ¶ 30. 1 Accord-
ingly, when Mr. Fuller filed this action on March 21, 2016, the statutes of limitations had already
expired for the breach of warranty, civil conspiracy, and negligence claims. That likely explains
1
As the SJC previously held in Evans, also a wrongful-death case alleging lung cancer
caused by cigarette smoking, the injured person’s tort and warranty claims accrue when “that par-
ticular disease is manifested” and the person “knew or reasonably should have known that she had
developed lung cancer from smoking . . . cigarettes”—at the latest, the date of cancer diagnosis.
465 Mass. at 415 (holding injured smoker’s lung-cancer claim accrued by the time she was diag-
nosed with cancer). Applied here, Mr. Fuller’s lung cancer “manifested” (and his claims accrued)
no later than when he received his diagnosis in 2012. Am. Compl. ¶ 30.
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why Mr. Fuller declined to plead those claims when he originally filed this action. See Compl.
¶¶ 36–40.
Mr. Fuller’s death does not resurrect the time-barred claims, and Ms. Fuller is therefore
barred from pursuing them in her wrongful-death action. Indeed, to permit her claim would con-
tradict the plain text of the Wrongful Death Act, which provides that a wrongful-death claim can
be brought only if “the deceased could have recovered damages for personal injuries if his death
had not resulted.” G. L. c. 229, § 2. It would also contradict the SJC’s holding that “the benefi-
ciaries of the death action can sue only if the decedent would still be in a position to sue” before
his death. GGNSC, 484 Mass. at 185; see also Doherty, 484 Mass. at 194 (“[T]he beneficiaries of
a wrongful death action have rights that are derivative of, rather than independent from, any claim
the decedent could have brought for the injuries causing his death.”). Massachusetts law is clear:
Where, as here, a pre-death claim fails, a post-death assertion of that claim in a wrongful-death
action fails too.
To be sure, the Wrongful Death Act’s three-year statute of limitations for a wrongful-death
action begins at the time of death. G. L. c. 229, § 2. But that limitation period does not change
the elements of a wrongful-death action, one of which is that the decedent must have been able to
recover at the time of his death for the claims asserted in the wrongful-death action. GGNSC, 484
Mass. at 185. Ms. Fuller’s wrongful-death action fails because she cannot satisfy that element:
Mr. Fuller could not have recovered for the tort and warranty claims before he died. Because Ms.
Fuller does not have a viable wrongful-death action, it makes no difference whether she filed that
action within three years of Mr. Fuller’s passing.
The statutory history is also of no help to Ms. Fuller. In 1981, the Legislature amended the
Wrongful Death Act to delete a provision that read: “No recovery shall be had under this section
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for a death which does not occur within two years after the injury which caused the death.” G. L.
c. 229, § 2 as amended through St. 1981, c. 493, § 1. This amendment reflects the Legislature’s
reasoned determination to not cutoff the ability of a personal representative to recover for wrongful
death simply because the death occurred more than two years after the injury. For example, take
a situation where a smoker was diagnosed with lung cancer in 1960, brought a timely personal-
injury action the following year (in 1961) for injuries related to lung cancer, and died in 1964 of
lung cancer. The pre-1981 Act would bar a wrongful-death action because the death did not occur
within two years of injury, even though the decedent while living timely pursued claims for his
lung cancer. The 1981 amendment corrected that unfavorable policy outcome, but it did not
change the rule requiring a wrongful-death claimant to show that the decedent would have been
able to sue for the claims before he died. See GGNSC, 484 Mass. at 185; Doherty, 484 Mass. at
194. Indeed, since 1958 this requirement has been expressly codified in the Wrongful Death Act,
in a provision providing that a wrongful-death action is permitted only if “the deceased could have
recovered damages for personal injuries if his death had not resulted.” GGNSC, 484 Mass. at 187–
88 (“In 1958, the Legislature amended G. L. c. 229, § 2, to permit compensation only ‘under such
circumstances that the deceased could have recovered damages for personal injuries if his death
had not resulted.’” (quoting St. 1958, c. 238, § 1)).
Although the SJC’s decisions in GGNSC and Doherty do not involve statutes of limitations,
they illustrate the “rule that precludes wrongful death actions unless decedents could have brought
an action for the injuries that caused their death.” GGNSC, 484 Mass. at 191. In GGNSC, a
daughter brought a wrongful-death action due to her mother’s death while living in a nursing home.
Id. at 182–83. The mother had previously entered into an arbitration agreement with the nursing
home. Id. The SJC held that because the arbitration agreement would have barred an action by
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the mother had she lived, the agreement also barred the daughter’s wrongful-death action. Id. at
192. As the Court put it, the daughter’s claims “are derivative of the decedent’s own cause of
action, and . . . therefore the decedent’s arbitration agreement binds” the daughter and prevents her
from bringing a wrongful-death action. Id. Similarly, in Doherty, a scuba diver signed a release
from liability and covenant not to sue shortly before he embarked on a fatal scuba-diving trip. 484
Mass. at 193–94. The SJC held that the diver’s beneficiaries could not bring a wrongful-death
action because the release from liability would have barred the diver from bringing a claim had he
lived. Id. at 196.
As in Doherty and GGNSC, Ms. Fuller’s wrongful-death action is derivative of Mr. Fuller’s
own cause of action, and therefore the fact that Mr. Fuller could not have asserted timely tort or
warranty claims before he died prevents Ms. Fuller from asserting those claims in a wrongful-
death action. Although Doherty and GGNSC do not expressly address statute-of-limitations de-
fenses, they do involve other procedural, affirmative defenses. See Edwards v. Lauro, 79 Mass.
App. Ct. 1111, *2 (2011) (unpublished) (showing that a binding arbitration agreement is typically
raised as an affirmative defense); Barnstead v. Ridder, 39 Mass. App. Ct. 934, 937 n.6 (1996)
(same); see also Griffin v. City of Chicago, 497 F. Supp. 3d 307, 318 (N.D. Ill. 2020) (showing
that waivers of liability are typically affirmative defenses); Barrios v. Carnival Corp., No. 19-
20534-CIV, 2019 WL 1876792, at *2 (S.D. Fla. Apr. 26, 2019) (same). There is no principled
reason for treating an affirmative defense based on a statute of limitations differently from the
affirmative defenses of arbitration and release addressed in GGNSC and Doherty.
Finally, this is an ideal issue for resolution at the judgment-on-the-pleading stage because
it does not involve any factual issues for a factfinder. Indeed, courts routinely dismiss claims based
on statute-of-limitations defenses, so there is no general rule that a statute-of-limitations defense
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necessarily involves factual disputes for a factfinder. See, e.g., Tradition, 91 Mass. App. Ct. at 70;
Frankston, 74 Mass. App. Ct. at 367; Epstein, 396 Mass. at 278–79. Here, it is evident from the
pleadings that Ms. Fuller’s wrongful-death action is barred under Massachusetts law. The statute
of limitations for Mr. Fuller’s tort and warranty claims began to run “when a reasonably prudent
person (in the tort claimant’s position), reacting to any suspicious circumstances of which he might
have been aware . . . should have discovered that he had been harmed” by Defendants’ conduct.
Donovan, 455 Mass. at 228 (citations omitted). The latest date that the statute of limitations could
possibly have begun to run is when Mr. Fuller was diagnosed with lung cancer in 2012. See Evans,
465 Mass. at 449–50; Am. Compl. ¶ 30 (alleging that Mr. Fuller was “unable to stop smoking
cigarettes until 2012, when he was diagnosed with lung cancer”). Thus, on the face of the
Amended Complaint it is apparent that any claims Mr. Fuller had against Defendants for his lung
cancer manifested by 2012 and thus expired by 2015, before his death. Because Mr. Fuller failed
to preserve those claims by filing a timely lawsuit while he was alive, Ms. Fuller is barred from
asserting the claims in a wrongful-death action.
II. The Loss-Of-Consortium Count Fails Because It Is Dependent On The Barred
Wrongful-Death Action.
If Ms. Fuller had a legitimate wrongful-death action, she would have been able to recover
the damages set out in the Wrongful Death Act, including loss of consortium. See Klairmont v.
Gainsboro Rest., Inc., 465 Mass. 165, 180 (2013) (“Had the plaintiffs prevailed on their wrongful
death claims, they would have been able to recover on behalf of the beneficiaries designated in
that statute . . . the types of damages the statute sets out, including loss of consortium damages.”).
But her wrongful-death action fails on the face of the complaint.
Ms. Fuller cannot pursue a loss-of-consortium claim based on the only remaining claim in
the Amended Complaint, which is a claim under the Consumer Fraud Act, c. 93A, that survives
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Mr. Fuller’s death due to the survival statute, G. L. c. 228, § 1. The SJC has held that a plaintiff
may not recover loss-of-consortium damages for a 93A claim brought under the survival statute.
See Klairmont, 465 Mass. at 182 (“Although the plaintiffs are entitled to seek loss of consortium
damages as beneficiaries under the wrongful death act, they may not recover such damages in a
separate cause of action brought on behalf of [decedent’s] estate under G.L. c. 228, § 1.”). Indeed,
the wrongful-death action—which fails as a matter of law here—“provides the exclusive action
for the recovery of the damages it encompasses by the designated beneficiaries. The plaintiffs
may not maintain a separate action for loss of consortium.” Hallett v. Town of Wrentham, 398
Mass. 550, 555–56 (1986) (“The wrongful death statute provides for a single action brought by
the decedent’s executor or administrator. The executor or administrator presents all claims by the
designated beneficiaries for damages flowing from the wrongful death.”).
As a consequence, the legal deficiency of Ms. Fuller’s wrongful-death action also prevents
recovery for loss of consortium. See Klairmont, 465 Mass. at 180–81. The Court should therefore
enter judgment as a matter of law on the loss-of-consortium count.
CONCLUSION
The Court should enter judgment in Defendants’ favor on Ms. Fuller’s wrongful-death
count (Count II)—which includes the claims for breach of warranty, civil conspiracy, and negli-
gence—and the loss-of-consortium count (Count III).
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Dated: August 5, 2021 Respectfully submitted,
R.J. REYNOLDS TOBACCO COMPANY,
GARBER BROS., INC.,
CUMBERLAND FARMS, INC.
By their attorneys,
/s/ Christopher M. Morrison
Christopher M. Morrison, BBO# 651335
Kate Wallace, BBO# 665503
JONES DAY
100 High Street, 21st Floor
Boston, MA 02110.1781
Telephone: +1.617.960.3939
Facsimile: +1.617.449.6999
cmorrison@jonesday.com
kwallace@jonesday.com
CERTIFICATE OF SERVICE
I, Christopher M. Morrison, hereby certify that on August 5, 2021, a true and accurate copy
of the foregoing was served upon the counsel of record for all parties by email.
/s/ Christopher M. Morrison
Christopher M. Morrison
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Exhibit A
Exhibit B
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COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT MARY FULLER, Individually and as Per- sonal Representative of the Estate of JOHN FULLER, Plaintiff, v. Case No. 1672-CV-00154 R. J. REYNOLDS TOBACCO COMPANY, GARBER BROS., INC., and CUMBER- LAND FARMS, INC., Defendants. MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS Defendants R.J. Reynolds Tobacco Company, Garber Bros., Inc., and Cumberland Farms, Inc. (collectively, “Defendants”) seek judgment on the pleadings with respect to Plaintiff Mary Fuller’s wrongful-death action, which includes claims for breach of warranty, civil conspiracy, and negligence. The Massachusetts Wrongful Death Act creates a cause of action for wrongful death that is “derivative” in nature, and thus “precludes wrongful death actions unless decedents could have brought an action for the injuries that caused their death.” GGNSC Admin. Servs., LLC v. Schrader, 484 Mass. 181, 190–91 (2020). Last year, the Massachusetts Supreme Judicial Court held—on two occasions—that if a decedent would have been barred from bringing a claim while living, his personal representative is likewise barred from asserting that claim in a wrongful-death action. Id.; Doherty v. Diving Unlimited Int’l, Inc., 484 Mass. 193, 196 (2020). This settled rule requires judgment in Defendants’ favor on Ms. Fuller’s wrongful-death count—which includes the claims for breach of warranty, civil conspiracy, and negligence (Count II). According to the pleadings, Mr. Fuller was diagnosed with lung cancer in 2012, but did not file an action for his lung cancer by 2015, the latest possible date provided under the three-year statute of limitations for tort and warranty claims. Because the tort and warranty claims based on Mr. Fuller’s lung cancer were time barred when he passed away in 2016, Ms. Fuller cannot assert those claims in a wrongful-death action. And because Ms. Fuller’s wrongful-death action fails as a matter of law, her claim to loss-of-consortium damages likewise fails (Count III). Accordingly, the Court should enter judgment in Defendants’ favor on Counts II and III of the Amended Com- plaint. BACKGROUND Plaintiff Mary Fuller is the personal representative of the estate of John Fuller. See Am. Compl. ¶ 1 (Aug. 7, 2017). Ms. Fuller claims that her husband was addicted to smoking and that he was “unable to stop smoking cigarettes until 2012, when he was diagnosed with lung cancer.” Id. ¶ 30. Mr. Fuller filed this action on March 21, 2016, before his passing, asserting only one claim: unfair and deceptive acts and practices in violation of the Massachusetts Consumer Protec- tion Act, G. L. c. 93A, §§ 2, 9, which is governed by a four-year statute of limitation. See Compl. ¶¶ 36–40 (March 21, 2016). Mr. Fuller died on November 13, 2016, allegedly of lung cancer caused by an addiction to smoking. Am. Compl. ¶ 31. On August 7, 2017, Ms. Fuller amended the complaint to add two counts that her husband never brought: (1) a wrongful-death count, which alleges claims for breach of warranty, civil conspiracy, and negligence, and (2) a loss-of-consor- tium count. Id. ¶¶ 38–69. 2 Although not necessary for purposes of this motion (which takes the allegations in the Amended Complaint of Mr. Fuller’s injury at face value), medical records confirm that Mr. Fuller was diagnosed with lung cancer in 2012. On March 14, 2012, Mr. Fuller underwent a chest CT scan that revealed a heterogeneous mass in his right lung. See Ex. A (Medical Records). A week later, on March 21, 2012, a bronchoscopy revealed an irregular mass that was obstructing the bron- chus to the right upper lobe, and pathology was interpreted as showing non-small cell carcinoma, favoring lung adenocarcinoma. See Ex. B (Medical Records). STANDARD “After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Mass. R. Civ. P. 12(c). “A motion for judgment on the pleadings pursuant to rule 12(c) is a challenge to the legal sufficiency of a complaint.” Welch v. Sudbury Youth Soccer Ass’n, Inc., 453 Mass. 352, 353 (2009). “A defendant’s rule 12(c) motion is ‘actually a motion to dismiss . . . [that] argues that the complaint fails to state a claim upon which relief can be granted.’” Jarosz v. Palmer, 436 Mass. 526, 529 (2002) (alterations in original) (citation omitted). “In deciding such a motion, all factual allegations pleaded by the nonmoving party must be accepted as true, and contravening assertions by the moving party are to be taken as false.” Welch, 453 Mass. at 354. “Judgment on the pleadings may be entered if a plaintiff fails to present sufficient facts in the complaint to support the legal claims made.” Id. (citation omitted). Judgment “based upon the expiration of a statute of limitations is appropriate where it is undisputed from the face of the complaint that the action was commenced beyond the applicable deadline.” Comm. v. Tradition (N. Am.) Inc., 91 Mass. App. Ct. 63, 70 (2017) (addressing a motion to dismiss); see also Frankston v. Denniston, 74 Mass. App. Ct. 366, 367 (2009) (affirming judg- ment on the pleadings under rule 12(c) because “the complaint was filed beyond the three-year 3 statute of limitations”); accord Epstein v. Seigel, 396 Mass. 278, 278–79 (1985) (affirming dis- missal where the “allegations of the complaint clearly reveal[ed] that the action was commenced beyond the time constraints of the statute of limitations”). Tort and breach-of-warranty claims are subject to a three-year statute of limitations. See G.L c. 260, § 2A (“[A]ctions of tort . . . shall be commenced only within three years next after the cause of action accrues.”); G. L. c. 106, § 2-318 (“All actions [for breach of warranty, express or implied, or for negligence] shall be commenced within three years next after the date the injury and damage occurs.”). The statutes of limitation on such claims begin “to run when a reasonably prudent person (in the tort claimant’s position), reacting to any suspicious circumstances of which he might have been aware . . . should have discovered that he had been harmed” by the defendant’s conduct. Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 228 (2009) (citation omitted). Here, the latest date that the statute of limitations could possibly have begun to run is when, according to the Amended Complaint, Mr. Fuller was diagnosed with lung cancer in 2012. See Evans v. Lorillard Tobacco Co., 465 Mass. 411, 449–50 (2013) (holding the plaintiff’s tort and breach-of- warranty claims were not barred by the three-year statute of limitations in G. L. c. 260, § 2A, because complaint was filed within the three-year period after the diagnosis of decedent’s lung cancer). ARGUMENT I. The Wrongful-Death Cause Of Action Fails As A Matter Of Law Because Mr. Fuller’s Underlying Tort And Warranty Claims Are Time Barred. The Supreme Judicial Court recently held that the Wrongful Death Act created a wrongful- death action that is “derivative of the decedent’s action,” which “means that ‘the beneficiaries of the death action can sue only if the decedent would still be in a position to sue.’” GGNSC, 484 Mass. at 185 (quoting Ellis v. Ford Motor Co., 628 F. Supp. 849, 858 (D. Mass. 1986)). In doing 4 so, the SJC adopted “the majority rule that precludes wrongful death actions unless decedents could have brought an action for the injuries that caused their death.” Id. at 191; see also Doherty, 484 Mass. at 194 (“[T]he beneficiaries of a wrongful death action have rights that are derivative of, rather than independent from, any claim the decedent could have brought for the injuries caus- ing his death.”). Massachusetts has joined other states in holding that “where an action for the injuries causing the decedent’s death ‘could not have been brought by the deceased, had he sur- vived, . . . no right of action [for wrongful death] . . . can vest in the deceased’s administrator or representative for the benefit of the beneficiaries’ because ‘even though the right created by the statute is a new cause of action, it is still derivative and dependent on the continuance of a right in the decedent to maintain an action for his injury up to the time of his death.’” GGNSC, 484 Mass. at 190 (alterations in original) (quoting 12 Am. Jur. Trials, Wrongful Death Actions § 16, at 344– 45 (1966)). Put simply, one element of a wrongful-death action requires the plaintiff to prove that the decedent could have recovered damages for the asserted claims had he not died. Thus, under the Wrongful Death Act, if the decedent would have been barred by the statute of limitations from asserting a particular claim at the time his death, then there is no cognizable wrongful-death action for that claim. See id. at 185; Doherty, 484 Mass. at 194. Stated another way, if an individual fails to timely file a lawsuit for personal injury or breach of warranty, the derivative nature of the Wrongful Death Act means that those claims are not revived for a wrong- ful-death claim based on the same injury or breach. The SJC’s previous ruling in a smoking-and-health case like this one is instructive. In Evans, a smoker brought a tort action against a cigarette manufacturer while she was alive for smoking-related injuries; after her death, her son amended the complaint to allege wrongful death. 465 Mass. at 415. Under the Wrongful Death Act, the son had a cognizable wrongful-death action 5 for tort and warranty claims only if his mother could have brought those claims before she died. In assessing whether the tort and warranty claims were time barred, the SJC looked to the date of manifestation of the death-causing injury. Id. at 449–50. The Court determined that the decedent had, prior to her death, filed an action preserving these claims within three years of manifestation of the disease that caused her death, and thus the derivative wrongful-death action asserting tort and warranty claims was not barred. Id. The Court’s analysis would have been unnecessary if time-barred claims could be revived merely by filing a wrongful-death action based on the same conduct within three years from the date of death. See G. L. c. 229, § 2. Here, Mr. Fuller could not have brought tort and warranty claims before he died because those claims were time barred. Thus, Ms. Fuller cannot assert those same claims under the Wrong- ful Death Act. Each claim is subject to a three-year statute of limitations. See G.L c. 260, § 2A (“[A]ctions of tort . . . shall be commenced only within three years next after the cause of action accrues.”); G. L. ch. 106, § 2-318 (“All actions [for breach of warranty, express or implied, or for negligence] shall be commenced within three years next after the date the injury and damage oc- curs.”). The three-year clock on those claims began to run, at the latest, in 2012 when Mr. Fuller was diagnosed with lung cancer, a disease caused by smoking. See Am. Compl. ¶ 30. 1 Accord- ingly, when Mr. Fuller filed this action on March 21, 2016, the statutes of limitations had already expired for the breach of warranty, civil conspiracy, and negligence claims. That likely explains 1 As the SJC previously held in Evans, also a wrongful-death case alleging lung cancer caused by cigarette smoking, the injured person’s tort and warranty claims accrue when “that par- ticular disease is manifested” and the person “knew or reasonably should have known that she had developed lung cancer from smoking . . . cigarettes”—at the latest, the date of cancer diagnosis. 465 Mass. at 415 (holding injured smoker’s lung-cancer claim accrued by the time she was diag- nosed with cancer). Applied here, Mr. Fuller’s lung cancer “manifested” (and his claims accrued) no later than when he received his diagnosis in 2012. Am. Compl. ¶ 30. 6 why Mr. Fuller declined to plead those claims when he originally filed this action. See Compl. ¶¶ 36–40. Mr. Fuller’s death does not resurrect the time-barred claims, and Ms. Fuller is therefore barred from pursuing them in her wrongful-death action. Indeed, to permit her claim would con- tradict the plain text of the Wrongful Death Act, which provides that a wrongful-death claim can be brought only if “the deceased could have recovered damages for personal injuries if his death had not resulted.” G. L. c. 229, § 2. It would also contradict the SJC’s holding that “the benefi- ciaries of the death action can sue only if the decedent would still be in a position to sue” before his death. GGNSC, 484 Mass. at 185; see also Doherty, 484 Mass. at 194 (“[T]he beneficiaries of a wrongful death action have rights that are derivative of, rather than independent from, any claim the decedent could have brought for the injuries causing his death.”). Massachusetts law is clear: Where, as here, a pre-death claim fails, a post-death assertion of that claim in a wrongful-death action fails too. To be sure, the Wrongful Death Act’s three-year statute of limitations for a wrongful-death action begins at the time of death. G. L. c. 229, § 2. But that limitation period does not change the elements of a wrongful-death action, one of which is that the decedent must have been able to recover at the time of his death for the claims asserted in the wrongful-death action. GGNSC, 484 Mass. at 185. Ms. Fuller’s wrongful-death action fails because she cannot satisfy that element: Mr. Fuller could not have recovered for the tort and warranty claims before he died. Because Ms. Fuller does not have a viable wrongful-death action, it makes no difference whether she filed that action within three years of Mr. Fuller’s passing. The statutory history is also of no help to Ms. Fuller. In 1981, the Legislature amended the Wrongful Death Act to delete a provision that read: “No recovery shall be had under this section 7 for a death which does not occur within two years after the injury which caused the death.” G. L. c. 229, § 2 as amended through St. 1981, c. 493, § 1. This amendment reflects the Legislature’s reasoned determination to not cutoff the ability of a personal representative to recover for wrongful death simply because the death occurred more than two years after the injury. For example, take a situation where a smoker was diagnosed with lung cancer in 1960, brought a timely personal- injury action the following year (in 1961) for injuries related to lung cancer, and died in 1964 of lung cancer. The pre-1981 Act would bar a wrongful-death action because the death did not occur within two years of injury, even though the decedent while living timely pursued claims for his lung cancer. The 1981 amendment corrected that unfavorable policy outcome, but it did not change the rule requiring a wrongful-death claimant to show that the decedent would have been able to sue for the claims before he died. See GGNSC, 484 Mass. at 185; Doherty, 484 Mass. at 194. Indeed, since 1958 this requirement has been expressly codified in the Wrongful Death Act, in a provision providing that a wrongful-death action is permitted only if “the deceased could have recovered damages for personal injuries if his death had not resulted.” GGNSC, 484 Mass. at 187– 88 (“In 1958, the Legislature amended G. L. c. 229, § 2, to permit compensation only ‘under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted.’” (quoting St. 1958, c. 238, § 1)). Although the SJC’s decisions in GGNSC and Doherty do not involve statutes of limitations, they illustrate the “rule that precludes wrongful death actions unless decedents could have brought an action for the injuries that caused their death.” GGNSC, 484 Mass. at 191. In GGNSC, a daughter brought a wrongful-death action due to her mother’s death while living in a nursing home. Id. at 182–83. The mother had previously entered into an arbitration agreement with the nursing home. Id. The SJC held that because the arbitration agreement would have barred an action by 8 the mother had she lived, the agreement also barred the daughter’s wrongful-death action. Id. at 192. As the Court put it, the daughter’s claims “are derivative of the decedent’s own cause of action, and . . . therefore the decedent’s arbitration agreement binds” the daughter and prevents her from bringing a wrongful-death action. Id. Similarly, in Doherty, a scuba diver signed a release from liability and covenant not to sue shortly before he embarked on a fatal scuba-diving trip. 484 Mass. at 193–94. The SJC held that the diver’s beneficiaries could not bring a wrongful-death action because the release from liability would have barred the diver from bringing a claim had he lived. Id. at 196. As in Doherty and GGNSC, Ms. Fuller’s wrongful-death action is derivative of Mr. Fuller’s own cause of action, and therefore the fact that Mr. Fuller could not have asserted timely tort or warranty claims before he died prevents Ms. Fuller from asserting those claims in a wrongful- death action. Although Doherty and GGNSC do not expressly address statute-of-limitations de- fenses, they do involve other procedural, affirmative defenses. See Edwards v. Lauro, 79 Mass. App. Ct. 1111, *2 (2011) (unpublished) (showing that a binding arbitration agreement is typically raised as an affirmative defense); Barnstead v. Ridder, 39 Mass. App. Ct. 934, 937 n.6 (1996) (same); see also Griffin v. City of Chicago, 497 F. Supp. 3d 307, 318 (N.D. Ill. 2020) (showing that waivers of liability are typically affirmative defenses); Barrios v. Carnival Corp., No. 19- 20534-CIV, 2019 WL 1876792, at *2 (S.D. Fla. Apr. 26, 2019) (same). There is no principled reason for treating an affirmative defense based on a statute of limitations differently from the affirmative defenses of arbitration and release addressed in GGNSC and Doherty. Finally, this is an ideal issue for resolution at the judgment-on-the-pleading stage because it does not involve any factual issues for a factfinder. Indeed, courts routinely dismiss claims based on statute-of-limitations defenses, so there is no general rule that a statute-of-limitations defense 9 necessarily involves factual disputes for a factfinder. See, e.g., Tradition, 91 Mass. App. Ct. at 70; Frankston, 74 Mass. App. Ct. at 367; Epstein, 396 Mass. at 278–79. Here, it is evident from the pleadings that Ms. Fuller’s wrongful-death action is barred under Massachusetts law. The statute of limitations for Mr. Fuller’s tort and warranty claims began to run “when a reasonably prudent person (in the tort claimant’s position), reacting to any suspicious circumstances of which he might have been aware . . . should have discovered that he had been harmed” by Defendants’ conduct. Donovan, 455 Mass. at 228 (citations omitted). The latest date that the statute of limitations could possibly have begun to run is when Mr. Fuller was diagnosed with lung cancer in 2012. See Evans, 465 Mass. at 449–50; Am. Compl. ¶ 30 (alleging that Mr. Fuller was “unable to stop smoking cigarettes until 2012, when he was diagnosed with lung cancer”). Thus, on the face of the Amended Complaint it is apparent that any claims Mr. Fuller had against Defendants for his lung cancer manifested by 2012 and thus expired by 2015, before his death. Because Mr. Fuller failed to preserve those claims by filing a timely lawsuit while he was alive, Ms. Fuller is barred from asserting the claims in a wrongful-death action. II. The Loss-Of-Consortium Count Fails Because It Is Dependent On The Barred Wrongful-Death Action. If Ms. Fuller had a legitimate wrongful-death action, she would have been able to recover the damages set out in the Wrongful Death Act, including loss of consortium. See Klairmont v. Gainsboro Rest., Inc., 465 Mass. 165, 180 (2013) (“Had the plaintiffs prevailed on their wrongful death claims, they would have been able to recover on behalf of the beneficiaries designated in that statute . . . the types of damages the statute sets out, including loss of consortium damages.”). But her wrongful-death action fails on the face of the complaint. Ms. Fuller cannot pursue a loss-of-consortium claim based on the only remaining claim in the Amended Complaint, which is a claim under the Consumer Fraud Act, c. 93A, that survives 10 Mr. Fuller’s death due to the survival statute, G. L. c. 228, § 1. The SJC has held that a plaintiff may not recover loss-of-consortium damages for a 93A claim brought under the survival statute. See Klairmont, 465 Mass. at 182 (“Although the plaintiffs are entitled to seek loss of consortium damages as beneficiaries under the wrongful death act, they may not recover such damages in a separate cause of action brought on behalf of [decedent’s] estate under G.L. c. 228, § 1.”). Indeed, the wrongful-death action—which fails as a matter of law here—“provides the exclusive action for the recovery of the damages it encompasses by the designated beneficiaries. The plaintiffs may not maintain a separate action for loss of consortium.” Hallett v. Town of Wrentham, 398 Mass. 550, 555–56 (1986) (“The wrongful death statute provides for a single action brought by the decedent’s executor or administrator. The executor or administrator presents all claims by the designated beneficiaries for damages flowing from the wrongful death.”). As a consequence, the legal deficiency of Ms. Fuller’s wrongful-death action also prevents recovery for loss of consortium. See Klairmont, 465 Mass. at 180–81. The Court should therefore enter judgment as a matter of law on the loss-of-consortium count. CONCLUSION The Court should enter judgment in Defendants’ favor on Ms. Fuller’s wrongful-death count (Count II)—which includes the claims for breach of warranty, civil conspiracy, and negli- gence—and the loss-of-consortium count (Count III). 11 Dated: August 5, 2021 Respectfully submitted, R.J. REYNOLDS TOBACCO COMPANY, GARBER BROS., INC., CUMBERLAND FARMS, INC. By their attorneys, /s/ Christopher M. Morrison Christopher M. Morrison, BBO# 651335 Kate Wallace, BBO# 665503 JONES DAY 100 High Street, 21st Floor Boston, MA 02110.1781 Telephone: +1.617.960.3939 Facsimile: +1.617.449.6999 cmorrison@jonesday.com kwallace@jonesday.com CERTIFICATE OF SERVICE I, Christopher M. Morrison, hereby certify that on August 5, 2021, a true and accurate copy of the foregoing was served upon the counsel of record for all parties by email. /s/ Christopher M. Morrison Christopher M. Morrison 12 Exhibit A Exhibit B