Christopher v. Duffy

28 Mass.App.Ct. 780 (1990)

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Nature of the Case

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Facts

Since 1978, The Christopher family occupied an apartment. Janet, a six-year-old child of the family, was discovered to be suffering from lead poison. The apartment needed to be deleaded. Duffy (D) was hired to do the job. D did the job improperly, and Janet’s condition worsened. She was admitted for chelation treatment and was discharged on about a week later and then she died of pneumonia from an infection contracted at the hospital. Janet had lost the capacity to resist disease from the lead poisoning. P, the mother of Janet sued the current owners, the former owner, and D. The original complaint was filed in 1982 and reserved a John Doe which was filled in by D in the first amended complaint. Eventually, agreements for judgment were entered, but D was not involved in the settlements. On November 6, 1987, P then moved to amend the first amended complaint to drop all the original defendants except D and to bring in five more companies which manufacture lead for lead paint along with their trade association. P wanted the amended complaint to relate back to the original complaint filed. That motion was dropped but renewed again on September 20, 1988. P contends that the new defendants had known or should have known since the 1920’s of the dangers of lead-based paints and yet negligently produced and marketed them, that they failed to give adequate warnings, that they were in breach of warranty, and that they conspired to conceal the dangers from the general public, and that each should be held liable based on market share theory. The judge denied leave to amend based on the prejudice to the new defendants by the delayed claims being asserted against them. This appeal resulted.