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Nett v. Bellucci9/4/2002
ement of the action against the added defendant would satisfy the purposes underlying statutes of repose. The purpose of a statute of repose is to give particular types of defendants the benefit of a date certain on which their liability for past conduct will definitively come to an end. "There comes a time when [a defendant] ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations, and he ought not be called on to resist a claim 'when evidence has been lost, memories have faded, and witnesses have disappeared.'" Klein v. Catalano, 386 Mass. 701, 709 (1982), quoting Rosenberg v. North Bergen, 61 N.J. 190, 201 (1972). The Legislature has decided that the uncertainties inherent in statutes of limitation, which run from the unpredictable and theoretically never-ending date on which a cause of action can "accrue," are contrary to the needs of certain professions, including the medical profession. See Harlfinger v. Martin, 435 Mass. 38, 41-42, 44 (2001). To serve this purpose, there must be a clear, bright-line method for determining the statute's operation, as only certainty in the measurements provides the certainty that such defendants are to be accorded. The filing of the motion to amend is a step that is as clearly recorded, and clearly documented by court records, as the filing of the amended complaint itself. There is no vagary or flexibility in the measurement that would defeat the purposes of the statute.
Nor would there be any difference in terms of notice to the defendant. Statutes of repose require only that an action be "commenced," and rely on other provisions in the rules to provide a defendant with timely notice of the action. Rule 3 states that an action is "commenced" by mere filing, without setting its own requirement of service or other notification to the defendant, but Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988), provides the deadline for service (ninety days after filing of complaint), while providing extensions of that deadline only on a showing of "good cause why such service was not made within that period." Thus, as of ninety days after the end of the repose period, a defendant can proceed "secure in his reasonable expectation that the slate has been wiped clean" and that the earlier conduct can no longer give rise to any liability. Klein v. Catalano, supra at 709.
Treating the filing of the motion to amend as the "commencement" of the action will give a defendant at least equally prompt notice, and will therefore not result in upsetting any "reasonable expectation" that liability has terminated. Id. Here, the defendant was served with the motion to amend, and was informed that it had been filed with the court, prior to the expiration of the statute of repose. Local rule 15.1 (b) requires that the motion to amend be served on the proposed defendant prior to the filing of the motion, a rule that guarantees service on the defendant prior to the expiration of the statute of repose, without even the slight flexibility for service provided by rule 4 (j). See note 8, supra. In other words, whereas timely commencement of an action by the filing of the complaint does not necessarily translate into notification to the defendant until sometime after the expiration of the repose period, the requirement of prior service under the local rule ensures notification prior to the expiration of the repose period. With that notice and filing, such a defendant is made aware, within the repose period, of the fact that the plaintiff is bringing suit for the alleged prior conduct. As of the time of that notice and filing of the motion, a defendant has not yet become entitled to any "reasonable expectation that the slate has been wiped
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