
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-1299                          GAIL A. LAREAU AND MICHAEL LAREAU,                  INDIVIDUALLY AND AS PARENTS AND NEXT OF FRIENDS OF                        ASHLEY LAREAU AND CHRISTOPHER LAREAU,                               Plaintiffs, Appellants,                                          v.                                 LARRY K. PAGE, M.D.,                                  SEQUA CORPORATION,                         AND CHROMALLOY PHARMACEUTICAL, INC.                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Joan A.  Lukey with whom  Charles P. Kindregan  and Hale  and Dorr            ______________            ____________________      ______________        were on brief for appellants.            John  D. Cassidy  with whom John  M. Dellea and  Ficksman & Conley            ________________            _______________      _________________        were on brief for appellee Larry K. Page, M.D.            Lawrence G. Cetrulo with whom Kevin  E. Young, David B. Frederick,            ___________________           _______________  __________________        and Peabody & Arnold were on brief for appellees Sequa Corporation and            ________________        Chromalloy Pharmaceutical, Inc.                                 ____________________                                  November 14, 1994                                 ____________________                      STAHL, Circuit Judge.  Plaintiffs-appellants   Gail                      STAHL, Circuit Judge.                             _____________            Lareau,  her  husband  Michael  Lareau,  and their  children,            Christopher and Ashley Lareau, filed suit against defendants-            appellees   Dr.   Larry   K.   Page   and   parent-subsidiary            corporations Sequa Corporation and Chromalloy Pharmaceutical,            Inc.  (collectively, "CPI")  for  injuries  arising from  the            injection of the contrast  medium Thorotrast into Mrs. Lareau            in 1970.  All of the Lareaus appeal various pre-trial rulings            of  the district  court, and  Christopher appeals  an adverse            jury  verdict in  his  loss-of-consortium action  against Dr.            Page, the only part of this case  decided by a jury.  We hold            that  the statutes  of limitations  bar all  of the  Lareaus'            claims  except their  consumer-protection claims  against Dr.            Page  and that  the Lareaus  are not  entitled to  recover on            their   consumer-protection   claims   against    Dr.   Page.            Accordingly, we affirm the district court's entry of judgment            for defendants.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                      In  March 1970,  Mrs. Lareau  (then Gail  Melanson,            aged  17),  suffering  from  severe  headaches  and  flu-like            symptoms,  was  admitted to  Children's  Hospital  in Boston,            where  she came under the  care of Dr.  Page, a neurosurgeon.            Fearing that  Mrs. Lareau had  a malignant  brain tumor,  Dr.            Page performed  a craniotomy and determined  instead that she                                         -2-                                          2            had a brain abscess, which is a life-threatening accumulation            of pus  that forms within a  capsule of tissue  in the brain.            Dr. Page  aspirated the abscess, which  was approximately the            size of  a tennis ball.   He then injected a  small amount of            Thorotrast, a radioactive contrast  medium, into the  abscess            cavity   to   facilitate   its    post-operative   radiologic            observation.  Dr. Page did not inform or warn Mrs. Lareau  or            her parents  of  the dangers  of Thorotrast  or obtain  their            consent for  using it prior  to injecting the  substance into            her  abscess  cavity.   Four  days  later, using  Thorotrast-            enhanced  x-rays, Dr.  Page detected  the recurrence  of Mrs.            Lareau's  abscess.    He  aspirated the  abscess  again  and,            shortly thereafter, discharged Mrs. Lareau.                        Post-surgery,  Mrs.  Lareau  remained  healthy  for            fourteen years;  she grew into adulthood,  married Mr. Lareau            and,  in 1983, gave birth  to their first child, Christopher.            On  June 13, 1984, however,  Mrs. Lareau was  admitted to the            Burbank Hospital in  Fitchburg, Massachusetts, suffering from            severe  headaches  and a  grand mal  seizure.   Her attending            physician,  Dr. Richard Cornell, noted that the CT scan taken            on admission  revealed "a  large calcified  mass in  the left            brain due to the old lesion."   In the discharge summary, Dr.            Cornell also noted "a density overlying the lateral aspect of            the  left  frontal  sinus .  .  .  probably  due to  retained            contrast  [medium] placed at the  time of the  removal of her                                         -3-                                          3            brain  abscess,  rather  than  calcification."   Mrs.  Lareau            herself never saw these reports.                      Upon  her  discharge  from Burbank  Hospital,  Mrs.            Lareau was  referred to Dr. Edwin G.  Fischer, a neurosurgeon            at  Children's  Hospital in  Boston.    Two weeks  after  she            consulted  with Dr.  Fischer, Mrs.  Lareau received  a letter            from  him, dated July  6, 1984, in  which he warned  her that            there was a  "theoretical possibility"  that "the  Thorotrast            that  was left  following  treatment of  your brain  abscess"            could  "induce  a tumor  in surrounding  brain tissue  over a            total  period  of about  20  years."    Dr. Fischer's  letter            continued:                      Since it [the  Thorotrast] is located  in                      an area of brain that it would be safe to                      remove it from, I am recommending that it                      be removed to avoid  the risk of a future                      tumor.   Unfortunately I cannot  tell you                      what  the  chances  are  of  developing a                      tumor,  but with  the  Thorotrast  out  I                      don't think you would have to worry about                      it further.                      On September 12, 1984,  Mrs. Lareau went to Dr.  R.            Michael Scott, a neurosurgeon  at New England Medical Center,            for  a second opinion.  While confirming the existence of the            Thorotrast,  Dr.  Scott did  not  recommend  surgery.   After            consulting further with Dr.  Cornell, Mrs. Lareau decided not            to go  ahead with surgery  on, as she said  in her deposition            testimony, "just a theoretical possibility."                                         -4-                                          4                      Mrs.  Lareau  continued  to  consult  Dr.  Fischer,            returning in  September 1985  and March 1987  for cranial  CT            scans.  Both  scans indicated the presence  of Thorotrast but            no   tumor   formation.     In   1986,   between  these   two            consultations, Ashley Lareau was born.                      In a  letter dated  November 11, 1988,  Dr. Fischer            again wrote to Mrs. Lareau:                      As you know, we have been concerned about                      the Thorotrast used  to treat your  brain                      abscess.  The theoretical possibility has                      always been that  the remaining  material                      could  cause  the formation  of  a tumor.                      This past  year a  report of such  a case                      has   appeared   in   the   neurosurgical                      literature, the tumor occurring  21 years                      after treatment of the abscess.                        I think  this is sufficient cause  for us                      to  reconsider things  and  obtain a  new                      scan . . . .            Mrs. Lareau  went to  see  Dr. Fischer  in March  1989.   Dr.            Fischer  again recommended surgery  to remove the Thorotrast,            this  time referring  to the  report of  brain cancer  in the            literature.                      On June 16, 1989,  Mrs. Lareau watched a  report on            the  dangers of  Thorotrast on  the  ABC News  program 20/20.                                                                   _____            Mrs. Lareau maintains that she did not discover the harm done            to her by defendants' actions until she saw the 20/20 report.                                                            _____            After the program,  as she said in  her deposition testimony,            Mrs.  Lareau was  "an  emotional wreck"  and began  to suffer                                         -5-                                          5            worsening headaches and  painful "pulling" sensations in  her            head.                      Almost  a year later, in the spring of 1990, on the            advice  of her  attorney, Mrs.  Lareau went  to Massachusetts            General Hospital  to see a  neurologist, Dr. Amy  Pruitt, who            referred  her to  a  neurosurgeon, Dr.  Robert  Ojemann.   On            August 13, 1990,  shortly after Mrs.  Lareau had begun  legal            action against Dr. Page and CPI, Dr. Ojemann operated on Mrs.            Lareau to remove the Thorotrast.  Mrs. Lareau's post-surgical            report revealed a calcified mass, or granuloma, caused by the            Thorotrast.   Following surgery, Mrs. Lareau suffered painful            cranial  swelling and  exhaustion,  was unable  to leave  her            house,  and was  readmitted for  observation.   Her emotional            distress,  the  accompanying  worsening  headaches,  and  the            surgery allegedly affected her relationship  with her husband            and caused  both Ashley  and Christopher to  suffer emotional            problems,  for  which   Christopher  received   psychological            counseling.                      On  June 27,  1990,  the  Lareaus  commenced  their            diversity action against Dr. Page and CPI.  They brought suit            against CPI  for negligence,  breach of warranty,  failure to            warn, loss of  consortium, negligent infliction of  emotional            distress,  and  violations  of  the   Massachusetts  Consumer            Protection  Act, Mass. Gen. L. ch. 93A.  Their action against            Dr.  Page sought  recovery for  medical malpractice,  loss of                                         -6-                                          6            consortium, negligent infliction  of emotional distress,  and            violations  of  chapter  93A.   The  district  court  granted            defendants'  motions  for  summary  judgment  based  on   the            applicable statutes of limitations  with regard to all claims            brought by Mrs. Lareau, Mr. Lareau, and Ashley.  The district            court   granted  CPI's   motion  for   summary  judgment   on            Christopher's      negligent-infliction-of-emotional-distress            claim;  later, at  the  close  of  all  of  the  evidence  in            Christopher's trial  against  Dr. Page,  the  district  court            granted Dr. Page judgment as a matter of law on Christopher's            negligent-infliction-of-emotional-distress  claim.1   On  the            eve of  trial, the district  court also granted  CPI's motion            for summary judgment based  on the learned-intermediary rule,            which disposed of all of the Lareaus' claims against CPI.  At            the subsequent district court trial on Christopher's loss-of-            consortium  claim  against  Dr.  Page, the  jury  returned  a            verdict for Dr. Page.  This appeal followed.                                         II.                                         II.                                         ___                                  Standard of Review                                  Standard of Review                                  __________________                                            ____________________            1.  Initially, the  district court granted Dr.  Page's motion            for summary judgment  on Christopher's  negligent-infliction-            of-emotional  distress  claim.    Subsequently,  the district            court  vacated the  summary  judgment ruling  and directed  a            verdict in Dr.  Page's favor  on that issue  "when it  became            apparent  that  the  interests  of justice  would  be  served            thereby."   Lareau v.  Page, 840 F.  Supp. 920,  931 n.12 (D.                        ______     ____            Mass. 1993).  As Fed.  R. Civ. P. 50 no longer uses  the term            "directed  verdict," we refer to the district court as having            granted Dr. Page judgment as a matter of law.                                         -7-                                          7                      As always,  we review  a district court's  grant of            summary judgment de novo and, like the district court, review                             __ ____            the  facts in a light most favorable to the non-moving party.            See, e.g., Crawford  v. Lamantia,  34 F.3d 28,  31 (1st  Cir.            ___  ____  ________     ________            1994).  Summary judgment  is appropriate when "the pleadings,            depositions,  answers to  interrogatories, and  admissions on            file,  together with the affidavits,  if any, show that there            is no  genuine issue  as to  any material  fact and that  the            moving party is entitled to  a judgment as a matter of  law."            Fed.  R. Civ. P. 56(c).  Thus, the nonmovant bears the burden            of placing at least  one material fact into dispute  once the            moving  party offers  evidence of  the absence  of a  genuine            issue.   Crawford, 34 F.3d at  31; see also  Celotex Corp. v.                     ________                  ___ ____  _____________            Catrett, 477 U.S. 317, 322 (1986).            _______                                         III.                                         III.                                         ____                                      Discussion                                      Discussion                                      __________            A.   Massachusetts Statutes of Limitations  and the Discovery            _____________________________________________________________            Rule            ____                      In cases  such as  this one, where  jurisdiction is            based  on   diversity  of  citizenship,  state   statutes  of            limitations apply.  See Fidler v. Eastman Kodak Co., 714 F.2d                                ___ ______    _________________            192,  196  (1st Cir.  1983).   Under  Massachusetts  law, the            Lareaus'  medical-malpractice,   negligence,  and  breach-of-            warranty  claims are  all subject  to three-year  statutes of            limitations.    See  Mass. Gen.  L.  ch.  260,    4  (medical                            ___                                         -8-                                          8            malpractice); Mass. Gen. L. ch. 260,    2A (personal injury);            Mass.  Gen. L.  ch. 106,    2-318 (breach of  warranty).  The            Lareaus' consumer-protection  claims are subject  to a  four-            year statute of  limitations.  See  Mass. Gen. L. ch.  260,                                             ___            5A.                        The parties  do not dispute that  the Massachusetts            discovery rule  applies to  the Lareaus'  claims.  Under  the            discovery rule, a cause  of action accrues when a  person (1)            knows  or has sufficient notice that s/he was harmed; and (2)            knows  or has  sufficient notice  of the  cause of  the harm.            McGuinness v. Cotter, 591 N.E.2d 659, 665 (Mass. 1992); Bowen            __________    ______                                    _____            v. Eli  Lilly & Co., 557  N.E.2d 739, 742 (Mass.  1990).  The               ________________            plaintiff  need not know the full extent of the injury before            the statute begins to run.   Bowen, 557 N.E.2d at 741.   "The                                         _____            important point is that the statute of limitations  starts to            run  when  an   event  or  events  have  occurred  that  were            reasonably likely to put the plaintiff on notice that someone            may have  caused her  injury."  Id.   Once  on notice,  "`the                                            ___            potential litigant has the  duty to discover from  the legal,            scientific,  and medical  communities'"  whether  s/he has  a            claim.   Id. at 742  (quoting Fidler, 714  F.2d at 199);  see                     ___                  ______                      ___            also Catrone v.  Thoroughbred Racing Ass'n  of N. Am.,  Inc.,            ____ _______     ___________________________________________            929   F.2d   881,   886-87   (1st   Cir.  1991)   (construing            Massachusetts law).            B.  Application of the Discovery Rule to the Lareaus' Claims            ____________________________________________________________                                         -9-                                          9                      The  Lareaus  instituted this  action  on  June 27,            1990.   Accordingly,  their claims  are  time barred  if they            accrued before June  27, 1987 (or June 27, 1986,  in the case            of  their consumer-protection  claims).  The  question before            us, then, is  whether the summary judgment  record permits us            to conclude that, as a matter of law, the Lareaus knew or had            sufficient knowledge  that they  had been harmed  before June            27,  1987 (or  June  27, 1986).    We discuss  Mrs.  Lareau's            claims;  the  Lareaus'  consumer-protection claims;  and  Mr.            Lareau's, Christopher's, and Ashley's  loss-of-consortium and            emotional-distress claims in turn.                      1.  Mrs. Lareau's Claims                          ____________________                      Mrs. Lareau argues that  the earliest date on which            her causes  of action accrued was  June 16, 1989, the  day on            which  she watched  the  20/20 program  on Thorotrast.   Mrs.                                     _____            Lareau argues that  before watching 20/20,  she did not  know                                                _____            what Thorotrast was or  that it was harming her; nor  did she            know that she had a Thorotrast granuloma in her brain.   Mrs.            Lareau also argues that she did not suffer emotional distress            before watching  20/20.   Because she instituted  this action                             _____            approximately  one year  after  watching  20/20, Mrs.  Lareau                                                      _____            argues  that  her  claims  are  well  within  the  applicable            limitations periods.  We do not agree.                      Following careful review of  the record, we hold as            a matter of  law that  Mrs. Lareau had  sufficient notice  to                                         -10-                                          10            have discovered her claims upon receipt of Dr. Fischer's July            6,  1984 letter.  In  that letter, Dr.  Fischer informed Mrs.            Lareau that she had Thorotrast in her brain, that there was a            "theoretical possibility" that the Thorotrast could cause her            to develop a brain  tumor, and that she should  have invasive            brain  surgery to  remove  it.   Mrs.  Lareau understood  the            import of Dr. Fischer's letter; as she said in her deposition            testimony, she "was like in  shock that anything was  wrong,"            and "was pretty shooken [sic] up."                        Mrs. Lareau argues that she acted reasonably  after            receiving Dr.  Fischer's letter but still  failed to discover            her  claims.   Accordingly,  she  contends,  the statutes  of            limitations  should not  have begun  to run  in 1984.   After            reviewing the record, however, we cannot say that Mrs. Lareau            acted reasonably.   Though  she did seek  additional opinions            from Drs. Scott  and Cornell, at no  point did she  ever make            the  most basic inquiry about  what Thorotrast was  or how it            might have been harming  her.  For this reason,  her argument            that her causes of action did not accrue in July 1984 because            she was not told then what Thorotrast was must fail.                      Mrs. Lareau next contends that her causes of action            did not accrue in 1984 because she was not told then that she            had a calcified  mass, or  granuloma, in her  brain.2   While                                            ____________________            2.  Because  we must construe all  of the facts  in the light            most  favorable to  Mrs.  Lareau, we  assume that  Thorotrast            caused Mrs.  Lareau's  granuloma  and that  it  was  not  the                                         -11-                                          11            Mrs. Lareau  was not told  in 1984 that  she had  a calcified            mass  in her  brain, Mrs.  Lareau's doctors  noted it  on her            medical charts at that time.   Had Mrs. Lareau inquired as to            whether  Thorotrast  had caused  any  damage, her  physicians            might have  told her that it could have been the cause of the            calcification.   Additionally, had  Mrs. Lareau asked  to see            her medical charts,  she herself would have seen the notation            regarding the calcification.                      Mrs.  Lareau  argues,   relying  on  McGuinness  v.                                                           __________            Cotter, 591 N.E.2d  659, 666 (Mass.  1992), that because  she            ______            did  not actually see her  medical charts, the  fact that her            doctors  noted her calcification on them does not matter.  We            do  not  agree.   In  McGuinness,  the Massachusetts  Supreme                                  __________            Judicial Court ("SJC") held that where a mother had no notice            that  her son's  cerebral  palsy might  have  been caused  by            medical  malpractice,   the   fact  that   such   cause   was            contemplated  in a doctor's report that she never saw did not            trigger  the statute  of  limitations.    Id.    Unlike  Mrs.                                                      ___            McGuinness, Mrs. Lareau had notice that  there was a problem;            she  had been advised  that she had  a chemical  in her brain            that  could cause  cancer,  that its  removal required  brain            surgery, and that removal was recommended.  Therefore, unlike            Mrs. McGuinness, who did not suspect and who had no reason to            suspect a problem, and who therefore had no reason to ask the                                            ____________________            natural consequence of her brain abscess.                                         -12-                                          12            doctor  to  see his  report, Mrs.  Lareau  was on  notice and            therefore had reason to investigate further.                      As   for   her   negligent-infliction-of-emotional-            distress claims,  Mrs. Lareau states that she  did not suffer            distress until she watched 20/20  in 1989 and therefore that,                                       _____            regardless of  when her other claims  accrued, her emotional-            distress claims did not accrue until then.  We do not agree.                      In Massachusetts,                       [w]here plaintiffs have suffered directly                      inflicted personal injuries  as a  result                      of a defendant's negligence,  courts have                      not been reluctant  to allow recovery for                      emotional       distress,       occurring                                                      _________                      contemporaneously  with  those   personal                      _________________________________________                      injuries,  as  an  additional element  of                      ________                      damages.   In  these cases,  recovery for                      emotional  distress  [is]  allowed  as  a                      claim `parasitic' to  the `host' claim of                      damages    for   negligently    inflicted                      physical injuries.            Payton v.  Abbott  Labs, 437  N.E.2d  171, 176  (Mass.  1982)            ______     ____________            (citations omitted) (emphasis added).   We think that the SJC            would  apply the  discovery rule  to "parasitic"  claims such            that they  may be  brought when they  occur contemporaneously            with  the discovery  of  the "host"  claim.   In  this  case,            however, we have  held as a  matter of law  that Mrs.  Lareau            should  have discovered her "host"  claims in July  1984.  We            think that Massachusetts would  not allow "parasitic"  claims            to  defeat  the  purposes of  the  discovery  rule such  that            plaintiffs who fail  to discover their "host" claims  in time            may nonetheless sue  for later-discovered "parasitic" claims.                                         -13-                                          13            Therefore, we  hold that Mrs. Lareau's  "parasitic" claim for            negligent infliction of emotional distress is barred.                        In  sum, we  hold, as  a matter  of law,  that Mrs.            Lareau had sufficient notice to have discovered her claims in            1984.    Accordingly, with  the  exception  of her  consumer-            protection claim  against Dr.  Page, which we  discuss below,            all of Mrs. Lareau's causes of action accrued in 1984 and are            therefore time barred.                                         -14-                                          14                      2.  Chapter 93A                          ___________                      The Lareaus  argue  that their  chapter 93A  claims            against Dr. Page did not accrue until 1990.  The Lareaus base            their chapter 93A claims against Dr. Page on the fact that in            1984, when apparently contacted by  Dr. Scott (with whom Mrs.            Lareau consulted),  Dr. Page  responded, "within  the current            `ambiosis litigiosus', she [Mrs. Lareau] should be made aware            of the theoretical possibility that the Thorotrast may induce            a  neoplasm."  The Lareaus  argue that Dr.  Page committed an            unfair and deceptive act to the extent that he orchestrated a            plan to give Mrs. Lareau some sort of "notice" to trigger the            statute of limitations on her other claims, but not enough to            trigger any actual awareness of his negligence.                      In light of the fact  that the risk that Thorotrast            could induce a brain tumor when left in an abscess cavity was            merely theoretical until 1988,  we hold that, as a  matter of            law, Dr. Page did not violate chapter 93A when he recommended            that Mrs. Lareau be told of that theoretical possibility.3                      3.  Loss of Consortium                          __________________                      Mr. Lareau,  Christopher,  and Ashley  allege  that            they did not suffer  any loss of consortium until  June 1989,            when  Mrs.  Lareau  became  an "emotional  wreck"  after  she                                            ____________________            3.  Because the Lareaus did  not address in their  brief when            their chapter 93A claims against CPI accrued, we consider the            argument as to CPI  waived.  See Alan Corp.  v. International                                         ___ __________     _____________            Surplus Lines Ins. Co., 22 F.3d 339, 343-44 (1st Cir. 1994).            ______________________                                         -15-                                          15            watched the 20/20 program  on Thorotrast.  Thus,  Mr. Lareau,                        _____            Christopher, and Ashley  allege that they did not  suffer any            loss  of consortium  until  after Mrs.  Lareau's claims  were            already barred  by the  applicable  statutes of  limitations.            Mr. Lareau, Christopher, and Ashley argue, however, that even            if Mrs.  Lareau's claims are  time barred,  their claims  are            nevertheless timely  filed because they did  not accrue until            1989.                      Massachusetts limits  children's loss-of-consortium            claims  to  those  children  who  are  conceived  before  the            parent's  injury.  Angelini v.  OMD Corp., 575  N.E.2d 41, 43                               ________     _________            (Mass. 1991).  As Ashley was born in 1986, after her mother's            causes of action accrued, Ashley is barred from bringing  her            loss-of-consortium claims.4                      Massachusetts  courts  have not  addressed, outside            the   context  of   after-born  children,   whether  loss-of-            consortium   claims  that   accrue   after  the   statute  of            limitations has run on the underlying injury may be enforced.            "Absent controlling  state court  precedent, a federal  court                                            ____________________            4.  We agree with the district court that Massachusetts would            incorporate  its discovery  rule such  that children  who are            conceived  before the  parent discovers  his/her claim  -- in            other words, who are conceived  before the parent's cause  of            action  accrues   --  may   recover  for  loss   of  parental            consortium.  See Lareau  v. Page, 840 F.  Supp. 920, 930  (D.                         ___ ______     ____            Mass.  1993).  Thus, Angelini  does not bar  children who are                                 ________            conceived after  the parent's injury but  before the parent's            cause of  action accrues.   Because Christopher  was born  in            1983,  before  his mother's  causes  of  action accrued,  his            claims are not automatically barred under Angelini.                                                      ________                                         -16-                                          16            sitting in diversity  may certify  a state law  issue to  the            state's highest  court, or undertake its  prediction when the            course  the state  courts  would take  is reasonably  clear."            VanHaaren v. State  Farm Mut. Auto.  Ins. Co., 989 F.2d  1, 3            _________    ________________________________            (1st Cir. 1993) (quotation and  citations omitted).  We think            it is reasonably clear that the SJC, if faced with the issue,            would  hold  that  after-arising   loss-of-consortium  claims            accruing after  the  statute of  limitations has  run on  the            underlying injury cannot be enforced.                      Under  Massachusetts  law,   claims  for  loss   of            consortium  are independent,  rather than derivative,  of the            claim of  the injured person.   See Olsen v.  Bell Tel. Lab.,                                            ___ _____     _______________            Inc., 445 N.E.2d 609, 612 (Mass. 1983).  "Since the causes of            ____            action are  independent, the date  of accrual of  each action            must be determined separately."   Id. at 613.   This arguably                                              ___            implies  that a claim for loss of consortium may accrue after            the cause of action for  the underlying injury and  therefore            that the  loss-of-consortium plaintiff  may be able  to bring            his/her claim after the injured person is barred.                      As noted above,  however, Massachusetts  recognizes            that  it   is  important  to  limit   after-arising  loss-of-            consortium claims.  In limiting children's loss-of-consortium            claims  to  those  children  who  are  conceived  before  the            parent's injury, the SJC explained:                      If  no restriction is placed on the class                      of children  who are eligible  to recover                                         -17-                                          17                      for  loss  of   parental  consortium,   a                      defendant may become  liable for the loss                      of consortium several years, perhaps even                      decades,  after the injury to the parent.                      As  a matter  of  policy, however,  it is                      _________________________________________                      important  to limit  the duration  of the                      _________________________________________                      liability.                      __________            Angelini, 575 N.E.2d at 43 (emphasis added).              ________                      We think  that the SJC,  if faced  with the  issue,            would  extend  this  reasoning   to  limit  the  duration  of            liability for loss-of-consortium claims generally,  such that            loss-of-consortium claims that do  not accrue until after the            statute of limitations has  run on the underlying  injury may            not  be enforced.5    If no  such rule  is  imposed, then  "a            defendant  may  become  liable  for the  loss  of  consortium            several years, perhaps even decades, after the injury."  Id.                                                                     ___                      Because Mr. Lareau and Christopher allege that they            did  not suffer  any  loss of  consortium  until 1989,  their            claims  accrued  after  Mrs.  Lareau's  claims  were  barred.            Accordingly, we hold that Mr. Lareau and  Christopher may not            enforce their claims under Massachusetts law.                      4.  Mr.  Lareau's,   Christopher's,  and   Ashley's                          _______________________________________________            Negligent-Infliction-of-Emotional-Distress Claims            _________________________________________________                      Mr.  Lareau,  Christopher,  and Ashley  also  bring            claims for  negligent infliction  of emotional distress.   In            these  claims, Mr.  Lareau, Christopher,  and Ashley  seek to                                            ____________________            5.  We note that Massachusetts bars recovery even to children            who are  born  during the  parent's  statutory period.    See                                                                      ___            Angelini, 575 N.E.2d at 43.            ________                                         -18-                                          18            recover for injuries arising from their  concern over harm to            Mrs. Lareau, specifically her brain surgery and her continued            uncertain prognosis.                      Massachusetts  does not apply the discovery rule to            claims for negligent infliction of emotional distress brought            to recover  for injuries arising  from concern  over harm  to            another.   See  Gore v.  Daniel O'Connell's  Sons,  Inc., 461                       ___  ____     _______________________________            N.E.2d  256,  260 (Mass.  App.  Ct.  1984) ("the  [emotional-            distress] claims  fail because they  are tied by  the amended            complaint  to  the  date   of  claimed  awareness  of  Gore's            condition, i.e.,  almost three  years  after the  accident").            Rather, in addition  to the physical injury  required for all            emotional-distress claims, "bystander"  plaintiffs must  show            physical proximity to the accident, temporal proximity to the            negligent  act,  and   familial  proximity  to  the   victim.            Anderson v.  W.R. Grace  & Co., 628  F. Supp. 1219,  1229 (D.            ________     _________________            Mass. 1986) (summarizing Massachusetts cases).                        Mr.  Lareau, Christopher,  and  Ashley cannot  show            physical  or  temporal  proximity   to  Mrs.  Lareau's   1970            operation, in  which she  was allegedly  negligently injected            with  Thorotrast.    Accordingly,   their  emotional-distress            claims fail.                                         IV.                                         IV.                                         ___                                      Conclusion                                      Conclusion                                      __________                                         -19-                                          19                      We hold that all  of the Lareaus' claims,  with the            exception of their  chapter 93A claim against Dr.  Page, were            barred by the applicable statutes of limitations and that Dr.            Page  is  entitled to  judgment  as a  matter  of law  on the            Lareaus' chapter 93A claims against him.                      Affirmed.                      Affirmed.                      _________                                         -20-                                          20
