Opinion
C. A. N21C-02-097 WCC
12-30-2022
SHANNA MARIE OLSEN and, GREGORY JOSEPH OLSEN, PARENTS OF RYAN JOSEPH OLSEN, DECEASED, Plaintiffs, v. FISHER-PRICE, INC. and MATTEL, INC., Defendants.
Robert Leoni, Esquire, Shelsby & Leoni, P.A., 221 Main Street, Wilmington, DE. 19804, and Alan M. Feldman, Esquire, Daniel J. Mann, Esquire, and Edward S. Goldis, Esquire, Feldman Shepherd, Wohlgelernter, Tanner, Weinstock & Dodig, LLP, 1845 Walnut Street, 21st Floor, Philadelphia, PA. 19103. Attorneys for Plaintiffs. Lisa Zwally Brown, Esquire, Corrine R. Moini, Esquire, Greenburg Traurig, LLP, 1007 N. Orange Street, Suite 1200, Wilmington, DE. 19801. Attorneys for Defendants.
Submitted: August 31, 2022
Robert Leoni, Esquire, Shelsby & Leoni, P.A., 221 Main Street, Wilmington, DE. 19804, and Alan M. Feldman, Esquire, Daniel J. Mann, Esquire, and Edward S. Goldis, Esquire, Feldman Shepherd, Wohlgelernter, Tanner, Weinstock & Dodig, LLP, 1845 Walnut Street, 21st Floor, Philadelphia, PA. 19103. Attorneys for Plaintiffs.
Lisa Zwally Brown, Esquire, Corrine R. Moini, Esquire, Greenburg Traurig, LLP, 1007 N. Orange Street, Suite 1200, Wilmington, DE. 19801. Attorneys for Defendants.
MEMORANDUM OPINION
William C. Carpenter, Jr. Judge
This is a wrongful death action arising from the alleged negligence and violation of warranties related to a product produced by Fisher-Price Inc., and Mattel, Inc., (collectively, "Defendants"). Defendants have moved to dismiss pursuant to Superior Court 12(b)(6), arguing primarily that Plaintiffs Shanna and Gregory Olsen's ("Plaintiffs") claims are governed by Missouri substantive law and time-barred under Missouri's statute of limitations.
Defs.' Mot. to Dismiss., D.I. 33, (April 6, 2022).
Opening Br. in Support of Defs.' Mot. to Dismiss., at 8-9. D.I. 33, (April 6, 2022) ("Defs.' Mot.").
I. Factual and Procedural Background
On October 30, 2013, Plaintiffs infant son, Ryan Joseph Olsen (R.J.O.) was placed in a Fisher-Price Newborn-to-Toddler Rocker ("Rocker") to nap while at a daycare center. Soon after being placed in the Rocker, R.J.O. was caused to asphyxiate and suffocate to death. Plaintiffs assert they did not become aware of the dangers associated with Fisher-Price inclined sleepers until April 2019, when the public was informed through Fisher-Price's recall of the Rock n' Play Sleeper, ("Sleeper").
Compl. ¶ 72.
Compl. ¶ 66.
Pls.' Resp. to Defs.' Mot. to Dismiss, at 4.
Plaintiffs commenced this litigation against Defendants on February 10, 2021, after realizing R.J.O. was in a Fisher-Price inclined sleeper at the time of his death.Plaintiffs allege in their Complaint that Fisher-Price knowingly, purposely, and consciously concealed their knowledge of the dangers associated with the Rock n' Play from 2009 up until the April 2019 recall. On March 23, 2021, Defendants answered the Complaint, admitting the Rock n' Play Sleeper was recalled on April 12, 2019. On March 8, 2022, Plaintiffs filed their First Amended Complaint. In response, Defendants filed the instant Motion to Dismiss, arguing primarily that Plaintiffs' claims are barred by Missouri's statute of limitations.
Pls.' Amend. Compl. at 1., D.I. 31, (March 8, 2022).
Compl ¶ 27.
Answer to Compl., at 9, D.I. 9, (March 23, 2021).
Pls.' Amend. Compl.
Defs.' Mot.
II. Standard of Review
Under Superior Court Rule 12(b)(6), the Court may dismiss an action for failure to state a claim upon which relief can be granted. In considering the Motion, the Court will accept all well-pled allegations of the Complaint as true and will draw all reasonable inferences that logically flow from those allegations in favor of the plaintiff as the non-moving party. A Court can dismiss for failure to state a claim under Rule 12(b)(6) if "it appears with reasonable certainty that the plaintiff could not prove any set of facts that would entitle her to relief."
Hagan, 2021 WL 1921893, at *2 (citing Tanesha Maretta Williams v. Newark Country Club, 2016 WL 6781221 at 1 (Del. Super., November 2, 2016); William L. Spence Jr., v. Allison J. Funk, et al., 396 A.2d 967, 968 (Del. 1978); Richard Clinton, et al. v. Enterprise Rent-a-Car Co., et al., 977 A.2d 892, 895 (Del. 2009)).
Hagan, 2021 WL 1921893, at *2 (citing Rammuno v. Cawley, 705 A.2d 1029, 1034 (Del 1998)).
III. Statement of Issues
A. The "Rock n' Play Sleeper" vs. the "Newborn-to-Toddler Rocker."
Throughout the parties' briefs, confusion between the Rocker and the Sleeper has been focal. Plaintiffs' original Complaint asserted claims related to the Sleeper, however, Plaintiffs' injury arose out of the use of a Rocker. Plaintiffs admit they misidentified the Rocker as the Sleeper in their Complaint, but once Plaintiffs discovered the product was, in fact, a Rocker, Plaintiffs and Defendants agreed to permit the filing of an Amended Complaint to correct the name of the misidentified Rocker. Plaintiffs' position is that Defendants failed to recall the Rocker despite it sharing the same dangers as the recalled Sleeper.
Pls.' Resp. to Defs.' Mot. to Dismiss at 4-5.
Pls.' Resp. to Defs.' Mot. to Dismiss at 7.
Defendants assert Plaintiffs' First Amended Complaint should be dismissed because it fails to include allegations specific to the Rocker. Defendants argue because Plaintiffs only replaced the name "Rock n' Play" with "Newborn-to-Toddler Rocker," the First Amended Complaint includes allegations related to a product that is not at issue in this lawsuit. In response, Plaintiffs argue the same dangers and injury causing mechanisms present in the Sleeper are also inherent in the design of the subject Rocker. Further, the correction of a misidentified product does not render an otherwise sufficient pleading insufficient.
Defs.' Mot. at 3.
Defs.' Mot. at 7.
Pls.' Resp. to Defs.' Mot. to Dismiss at 21.
Id.
As to this issue, the Court agrees with Plaintiffs. There is no question that the product at issue was manufactured by Defendants and the initial Complaint asserted dangers and injuries connected with a Fisher-Price product. Inserting the correct name of that device in the First Amended Complaint does not provide an avenue for Defendant to avoid liability.
B. Statute of Limitations
Next, Defendants argue Plaintiffs' claims are barred by Missouri's three-year statute of limitations and should be dismissed. It is Defendants' position that under Section 145 of the Restatement (Second) of Conflicts, (which Delaware has adopted) Missouri law governs, because it is the state that "has the most significant relationship to the occurrence and the parties."
Defs.' Mot. at 10 (citing Restatement (Second) of Conflicts § 145(1) (1988)).
In response, Plaintiffs assert Delaware's borrowing statute requires the application of Delaware's shorter two-year statute of limitations to Plaintiffs' claims, rather than Missouri's longer three-year statute of limitations. They assert that Delaware's statute of limitations should apply since unlike Missouri's, the limitation period would not begin to run until after Plaintiffs had reasonable knowledge of the entity responsible for their son's injuries. Since Plaintiffs assert they were unaware of the deficiencies in Defendants' product until April of 2019, under Delaware's statute of limitations, the time would not begin to run until then and thus Plaintiffs' claims were timely filed. Alternatively, Plaintiffs assert that even if the Court applies Missouri's three-year statute of limitations, Defendants should be equitably estopped from asserting a statute of limitations defense based on their fraudulent concealment of the dangers associated with the Rocker.
Pls.' Resp. to Defs.' Mot. to Dismiss at 9.
Pls.' Resp. to Defs.' Mot. to Dismiss at 12-15.
Pls.' Resp. to Defs.' Mot. to Dismiss at 16-18.
Missouri Wrongful Death Statute, § 537.100
Defendants argue Plaintiffs' claims are time-barred under Missouri's three-year statute of limitations for wrongful death actions, and therefore, Plaintiffs' claims accrued on the date of decedent's death, October 30, 2013, and expired on October 30, 2016. Missouri Wrongful Death Statute, § 537.100 provides: "Every action instituted under section 537.080 shall be commenced within three years after the cause of action shall accrue. . ."
Defs.' Mot. at 11.
There are two primary Missouri Supreme Court cases on which the parties rely. In Boland v. Saint Luke's Health Sys., Inc., the plaintiffs attempted to use § 537.100 to change the accrual date from the date of injury to the date of discovery. In State ex rel. Beisly v. Perigo, the defendant attempted to use § 537.100 as an affirmative defense and the Court addressed whether equitable estoppel prevented Defendants from asserting a statute of limitations claim.
471 S.W.3d 703 (Mo. 2015).
469 S.W.3d 434, 437 (Mo. 2015).
The language of § 537.100 does not state when a cause of action accrues, therefore, Missouri Supreme Court addressed accrual in Boland, where separate plaintiffs brought five wrongful death suits against a medical center. The plaintiffs alleged that a respiratory therapist working at the hospital killed the five decedents by administering lethal doses of medication. Plaintiffs argued that after hospital personnel had learned of the circumstances, the defendants intentionally concealed the respiratory therapist's actions. The Boland plaintiffs argued their claims accrued at the date of discovery, and not at decedents' deaths, pursuant to a fraudulent concealment exception outlined in § 516.280.
Boland., 471 S.W.3d 705.
Id.
Id.
Boland., 471 S.W.3d 707, (citing Mo. Rev. Stat. § 516.280: "[i]f any person, by absconding or concealing himself, or by any other improper act, prevent[s] the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented.")
The Boland Court explained the exceptions found in Chapter 516 are not applicable to causes of action that contain their own special statute of limitation. Section 537.100 is a special statute of limitation for wrongful death; therefore, "the running thereof cannot be tolled because of fraud, concealment, or any other reason not provided in the statute itself." Under this ruling there is no discovery exception that allows the statute of limitations timeframe to begin upon discovery. Therefore, under Boland, once the three-year period has run, the statute would prevent the action from proceeding forward.
Boland., 471 S.W.3d 707, (citing Mo. Rev. Stat. § 516.300: "The provisions of sections 516.010 to 516.370 shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute.")
Id. at 708.
In an interesting twist, on the same day the Missouri Supreme Court issued the Boland decision it also addressed whether equitable estoppel could prevent a defendant who had fraudulently concealed his wrongdoing from escaping liability because the statute of limitations had run. In Beisly, the defendant's wife was found dead on July 15, 2009. However, decedent's homicide remained unsolved until February 2013, when the state charged the defendant with his wife's murder.In February 2013, decedent's mother filed a wrongful death action against defendant alleging defendant disguised and staged the crime scene, lied to law enforcement, destroyed evidence, and denied involvement in the decedent's death. In response, the defendant filed to dismiss, arguing the wrongful death claim was time-barred by § 537.100 because it was filed more than three years after decedent's death.
State ex rel. Beisly v. Perigo, 469 S.W.3d 434, 437 (Mo. 2015).
Id. at 436.
Id.
Id.
The Missouri Supreme Court held that because the defendant acted affirmatively to conceal his identity, application of the doctrine of equitable estoppel was appropriate to prevent the defendant from taking inequitable advantage of a situation he had caused. The Beisly Court explained the application of equitable estoppel has nothing to do with extension or tolling of the statute of limitations; rather it forecloses the wrongdoer, who fraudulently concealed his or her actions, from asserting the defense. "To apply the doctrine of equitable estoppel to bar a defendant's statute of limitations defense, the defendant must have acted affirmatively to induce the plaintiff to delay bringing the action." The court looked to the legislative intent of § 537.100, and ultimately could not fathom that the legislature's intent was to permit tortfeasors to evade liability for causing wrongful deaths so long as the tortfeasor could conceal their wrongdoing until the statute of limitations expired.
Id. at 444.
Id. at 444.
Id. at 441.
Id. at 444-45.
It is Plaintiffs' position that Fisher-Price, like the defendant in Beisly, acted fraudulently to conceal the dangers associated with the Rocker and their other inclined sleepers, which caused Plaintiffs to delay in bringing this action. Plaintiffs argue they have sufficiently pled facts to support the contention that Defendants acted to conceal known dangers associated with inclined sleepers.
Pls.' Resp. to Defs.' Mot. to Dismiss at 19.
In response, Defendants assert that Beisly is not compatible with the instant matter for two reasons. First, Beisly was a criminal case that was before the court on a writ of prohibition, where Boland and the instant matter involve civil wrongful death actions. Second, Defendants assert they did not conceal their identity here, as the defendant did in Beisly. Defendants argue that Plaintiffs cannot claim that they did not know the identity of the wrongdoer in October 2013, when the infant in this case died. In other words, concealment of facts and circumstances preventing plaintiffs from discovering whether they have a claim against a particular wrongdoer, is inherently different from a case where a criminal defendant concealed his identity to avoid prosecution.
For the purposes of this Motion, the Court will apply Missouri law and finds that Missouri's statute of limitations cannot be extended beyond the three years even if the events to reasonably bring a cause of action are not known until after the statute of limitations has run. However, the Missouri court will allow this Court to find the Defendants' actions would prevent it from asserting a statute of limitations claim under the application of equitable estoppel.
Having made these findings, the next question is how this applies to the litigation filed in Delaware.
Delaware's Borrowing Statute
"Under Delaware's 'borrowing' statute, 'where a cause of action arises outside of [Delaware], an action cannot be brought in a court of [Delaware] to enforce such cause of action after the expiration of whichever is shorter, the time limited by the law of this State, or the time limited by the law of the state or country where the cause of action arose, for bringing an action upon such cause of action.'" Here, the "shorter" statute of limitations is Delaware's two-year limitation period.
Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 2012 WL 3201139, at *16 (Del. Ch. Aug. 7, 2012).
Defendants argue Plaintiffs incorrectly interpret the mechanics of the borrowing statute. Defendants contend the potential applicability of tolling renders the Delaware statute of limitations longer than Missouri's three-year statute that cannot be tolled. Defendants cite to Frombach v. Gilbert Associates, Inc., where the Supreme Court of Delaware held that in determining which state's statute of limitations is "shorter" under the borrowing statute, the "comparison is of the limitations periods and their respective 'accoutrements,' such as claim accrual and tolling doctrines, and the shorter limitations period is accepted with its accoutrements."
Defs.' Mot. at 2.
Id. at 3.
236 A.2d 363, 366 (Del. 1967).
Id. at 2-3. See de Adler v. Upper New York Inv. Co. LLC, 2013 WL 5874645, at *13 (Del. Ch. Oct. 31, 2013) (quoting Frombach v. Gilbert Assocs., Inc., 236 A.2d 363, 366 (Del. 1967)).
The Court finds the Frombach ruling unnecessarily complicates the application of the borrowing statute and inevitably will place the Court in a dispute over when the injury and its cause were reasonably discovered. The Court believes it would have been better to create a clear line as to which statute of limitations was shorter by simply looking to the length of the statutory limitations. Allowing the discovery tolling exception to expand the statute of limitations created by statute is inconsistent with the wording of the borrowing statute and prioritizes when the statute of limitations begins rather than its length. In spite of the Court's disagreement with the Frombach ruling, it feels obligated to apply its teaching.
Therefore, the Court will assume for the purposes of this Motion that:
1) More than three years have passed since the death of R.J.O. and the application of the Missouri statute of limitations would prevent recovery.
2) Delaware's statute of limitations would begin upon discovery of the cause of the infant's death (nearly six years later) and the case was filed within two years of that discovery.
3) Delaware's borrowing statute requires the Court to apply the shorter statute of limitations period but with any accoutrements included.
When it applies these findings to the case, there appears to be no reasonable dispute that the Delaware statute of limitations would be longer in length than Missouri's. The cause of the infant's death was not discovered until five and a half years after his death and after Missouri's three-year statute of limitations had run. When the discovery time is added to Delaware's two-year statute of limitations, it is the longer statute of limitations period. As such, the Court finds Missouri's three-year statute of limitations would apply here.
That however does not end this litigation. As stated earlier, Missouri does recognize that Defendants' conduct could be a basis to find that they are estopped from asserting a statute of limitations defense. At this early juncture in the litigation, the Court has very little information about Defendants' conduct and cannot make a decision on equitable estoppel at this time. Therefore, the Court will allow the case to proceed forward to provide Plaintiffs an opportunity to explore this issue in discovery. Defendants' Motion to Dismiss is hereby GRANTED in part and DENIED in part.
IT IS SO ORDERED.