All of this Nelson knew, without doubt, more than four years in advance of his death, during which he alone experienced the pain, the anxiety, the progressive disability, and the expense, which should have served as constant reminders to him that if the law afforded any remedy, he would have to sue for it. Yet for reasons of his own, perhaps never to be known, Nelson elected to allow his right to sue to expire by the elapse of time.
One injured by the wrongful conduct of another need not -- indeed, must not when time grows short -- await the onset of all the adverse consequences of that injury before going to court. Future harms, including a virtually inevitable death, are nonetheless as fully compensable as money can compensate, upon proper proof at trial, even though they have yet to occur. See Knight v. Furlow, 553 A.2d 1232 (D.C. 1989); see also Baker v. A.H. Robins Co., Inc., 613 F. Supp. 994, 996-97 (D.D.C. 1985). The statute of limitations at least admonishes, elastic though it may have become, that a victim must come forward with his claim with reasonable alacrity, confront the wrongdoer, and tender his proof while evidence is sufficiently fresh to be effectively marshalled and tested by the judicial process. See Ehrenhaft v. Malcolm Price, Inc., 483 A.2d 1192, 1202 (D.C. 1984); United States v. Kubrick, with reasonable alacrity, confront the wrongdoer, and tender his proof while evidence is sufficiently fresh to be effectively marshalled and tested by the judicial process. See Ehrenhaft v. Malcolm Price, Inc., 483 A.2d 1192, 1202 (D.C. 1984); United States v. Kubrick, 444 U.S. 111, 117, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979).
The legislature has made a policy decision to fix by statute as reasonable that interval which may pass between injury and action at three years, upon which the courts have engrafted the ameliorative "discovery rule." When, however, the quality of a plaintiff's diligence is dismissed as just another issue of fact to be put to the trial jury, as some courts have done,
the discovery rule has effectively retired the statute.
Evidence of unreasonable delay on the part of a plaintiff in bringing suit -- particularly in death cases -- may be more difficult for a defendant to come by than other favorable evidence. When it is available it is perforce inconsistent with any defense on the merits; the stronger the merits defense, the more likely it is to belie the notion that the defendant has been prejudiced by delay. Moreover, the issue of a plaintiff's diligence becomes a collateral one, and often a distracting irritant to the jury. Many defendants resign to abandon genuine limitations defenses altogether as trial issues, for reasons of tactics rather than insubstantiality. And, in any event, the defendant is not saved the ordeal of the trial itself that the statute of limitations was intended and expected to preclude.
The plaintiff's wrongful death claim here, however, is not so manifestly untimely. The District of Columbia Wrongful Death Act, D.C. Code § 16-2701 (1981) provides that a death caused by the "wrongful act" of another gives rise to an action for damages for the benefit of the decedent's surviving dependent next-of-kin if the "wrongful act" is such as would have entitled the decedent to have maintained such an action had his death not ensued. The applicable period of limitations is "one year after the death of the person injured." D.C. Code § 16-2702 (1981). This action was filed within the year following Nelson's death, but defendants contend that because Nelson himself was time-barred at his death, so too is plaintiff as his personal representative; in other words, because Nelson was not "entitled" to maintain the action when "death ensued," neither is his personal representative whose rights, they say, are derivative of, and no larger than, his decedent's.
Plaintiff correctly observes, however, that the Wrongful Death Act was enacted by the legislature to protect interests of persons other than the victim in his own vitality, specifically, the interests of his spouse and next-of-kin who have also, by reason of his death, sustained a loss the law regards as compensable. The cause of action it creates is not derivative but, rather, a new and independent cause of action which is not constrained by any temporal limits on the enforceability by the decedent himself of his own rights respecting the same injury at the time of his death.
There is, it appears, no controlling decision of the District of Columbia Court of Appeals on the issue, and both plaintiff and defendants cite a multitude of cases from other jurisdictions in support of the construction they say this Court must give to the District of Columbia's version of the Wrongful Death Act. Older cases from the U.S. Court of Appeals for the District of Columbia Circuit, however, suggest that the construction favored by the plaintiff is the appropriate construction, see Semler v. Psychiatric Institute of Washington, D.C., 188 U.S. App. D.C. 41, 575 F.2d 922, 924-25 (D.C. Cir. 1978); Runyon v. District of Columbia, 150 U.S. App. D.C. 228, 463 F.2d 1319, 1321 (D.C. Cir. 1972), and is apparently in accord with the majority rule throughout the country of those courts having construed similar versions of Lord Campbell's Act. See W. Page Keeton, Prosser and Keeton on the Law of Torts § 127, at 957 (5th ed. 1984); Restatement (Second) of Torts § 899 cmt.c (1979).
Such a conclusion does not alleviate a legitimate concern for the judicial system's ability to resolve death claims which are stale in fact while nevertheless viable under the statute of limitations. A timely action for wrongful death might theoretically be predicated upon a defendant's conduct ancient in the extreme if only the suit follows death within the ensuing year. It is, however, the legislature's exclusive prerogative to provide the prophylaxis of a statute of absolute repose, as it has done in other cases, see, e.g., D.C. Code § 12-310 (1981), if that is to be the policy of the forum. This federal court certainly may not do so.
For the foregoing reasons, it is, therefore, this 11th day of March, 1993,
ORDERED, that defendants' motion to dismiss the complaint or for summary judgment is granted in part and denied in part; and it is
FURTHER ORDERED, that Counts II, IV and VI of plaintiff's amended complaint are dismissed with prejudice.
Thomas Penfield Jackson
U.S. District Judge