

                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 &amp; Conley                                                                              
were on brief for appellee Larry K. Page, M.D.
Lawrence G. Cetrulo with whom Kevin  E. Young, David B. Frederick,                                                                             
and Peabody &amp; 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 &amp; 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  &amp; 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
