Nett v. Bellucci9/4/2002
d and the filing of the amended complaint. On a motion for reconsideration, however, the court reversed itself, concluding that a statute of repose could not be tolled in light of Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 631 n.19 (1997), and cases cited. Because the plaintiffs had not filed their amended complaint prior to March 26, 1999, the claims against Dr. Gross were dismissed.
On appeal to the United States Court of Appeals for the First Circuit, the plaintiffs were unsuccessful in pressing their theory that the statutes of repose ran from the child's birth date. See Nett v. Bellucci, 269 F.3d 1, 6 (1st Cir. 2001). The March 26, 1999, seven-year anniversary of the ultrasound reading was held to be the applicable date for purposes of the statutes of repose, and both the March 29, 1999, motion for leave to amend, and the later April 26, 1999, filing of the complaint, fell outside that repose period. The question, then, was whether the March 10, 1999, filing of a motion for leave to amend qualified as the "commencement" of the action against Dr. Gross for purposes of the statutes of repose. Because the case was a diversity action, State law determined when the action was "commenced" for purposes of statutes of limitations or statutes of repose. Id. at 7, citing Walker v. Armco Steel Corp., 446 U.S. 740, 751 (1980). Finding "no controlling precedent on the question of what constitutes the commencement of an action for the purpose of the Massachusetts statutes of repose," the court certified the two questions now before us. Nett v. Bellucci, supra at 8.
2. Commencement of an action. The first certified question asks us to determine, for purposes of our statutes of repose, what step in the proceedings constitutes the commencement of an action against a party who is added by way of amendment to the complaint. Both the statute governing medical malpractice tort claims involving minors, G.áL. c. 231, á60D, and the statute governing medical malpractice tort claims generally, G. L. c.á260, á4, provide that "in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based" (emphasis added). Like all statutes of repose, " he effect [of these statutes] is to place an absolute time limit on the liability of those within [their] protection and to abolish a plaintiff's cause of action thereafter, even if the plaintiff's injury does not occur, or is not discovered, until after the statute's time limit has expired." McGuinness v. Cotter, 412 Mass. 617, 622 (1992), citing Klein v. Catalano, 386 Mass. 701, 702 (1982). Unlike statutes of limitation, statutes of repose may not be "tolled" for any reason, as "tolling" would deprive the defendant of the certainty of the repose deadline and thereby defeat the purpose of a statute of repose. See Protective Life Ins. Co. v. Sullivan, supra at 631 n.19, citing Sullivan v. Iantosca, 409 Mass. 796, 798 (1991). The only way to satisfy the "absolute time limit" of a statute of repose is to "commence" the action prior to the expiration of that time limit. McGuinness v. Cotter, supra. See Aldrich v. ADD Inc., ante 213, 221 (2002).
The medical malpractice statutes of repose do not define when an action "commences." Ordinarily, we would look to our rules of civil procedure to determine the date on which an action is "commenced," and, under the straightforward provisions of those rules, we would find that amended pleadings adding or substituting a party, where the claims asserted against the new party arise out of the same conduct, transaction, or occurrence set forth in the original pleading, "relate[ ] back" to the date of the original ple
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