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Greczyn v. Colgate-Palmolive3/21/2005
ke all the 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." McGuiness v. Cotter, 412 Mass. 617, 622, 591 N.E.2d 659 (1992), citing Klein v. Catalano, 386 Mass. 701, 702, 437 N.E.2d 514 (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, 682 N.E.2d 624, citing Sullivan v. Iantosca, 409 Mass. 796, 798, 569 N.E.2d 822 (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., 437 Mass. 213, 221, 770 N.E.2d 447 (2002). [Id. at 134-35.]
The court went on to declare that for the purposes of the statute of repose, a case "commences" on the date of the filing of a motion for leave to amend a complaint to add a party, thus rendering plaintiff's claim timely. Id. at 143. In so doing, the court rejected a strict definition of commencement (filing of the complaint) stating: "We recognize that statutes of repose are harsh, but we will not adopt a needlessly artificial definition of 'commencement' of actions brought by way of amended complaints that would make a harsh rule even harsher." Id. at 142. Again, as in Tindol, nothing in Nett is dispositive of this case in which Greczyn in fact both was injured and filed suit within the time constraints of the statute of repose.
Contrariwise, the Alabama Supreme Court has faced the exact issue that is before us. In Marsh v. Wenzel, 732 So. 2d 985 (1998), plaintiff sued her surgeon and various fictitious physicians in 1995, alleging negligence in failing to identify a tissue mass in her breast as malignant in 1993. Id. at 986. In 1997, plaintiff sought to add as a defendant the pathologist who analyzed the tissue mass. Id. at 987. The Circuit Court granted summary judgment to the pathologist, asserting that fictitious-party practice cannot be imported into Alabama's Medical Liability Act, Ala. Code § 6-5-482a, a statute of repose that prescribes: " n no event may action be commenced more than four years after [the alleged medical negligence occurred]." The Alabama Supreme Court rejected that notion and determined that the act speaks of the commencement of an action as the necessary operative event. It does not expressly exclude the availability of fictitious-party practice and its doctrine of relation back. Once the plaintiff complies with [Alabama's fictitious-party practice rule], in an action that otherwise is timely filed, the doctrine of relation back... permits the plaintiff to satisfy the prerequisite that the action "be commenced" as set forth in § 6-5-482.
[Id. at 988.]
The court concluded, however, that the plaintiff "knew the identity of the pathologist before the expiration of the four year period.... [The plaintiff] [could not] reasonably [have been] deemed to have been ignorant of matters clearly set forth in the records." Id. at 988. Thus, because she was not diligent in ascertaining the identity of a fictitious party, the plaintiff was barred from pursuing her otherwise timely claim.
In Oliver v. Woodward, 824 So. 2d 693 (2001), a victim of medical malpractice filed a complaint, including several fictitiously-named doctors, nineteen months after being inj
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