Fischman v. Boston Children Hospital

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Case 1:26-cv-11504-WGY Document37 _ Filed 10/15/26 Pagelof5

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

GALLIT FISCHMAN,
Plaintiff,

CIVIL ACTION
NO. 26-11504-WGY

Vv.

BOSTON CHILDREN’S HOSPITAL,

Defendant.

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YOUNG, D.J. October 15, 2026

ORDER

Before the Court is the defendant, Children’s Hospital
Corporation d/b/a Boston Children’s Hospital’s (“BCH”), motion
to dismiss, Mot. Dismiss Am. Compl., ECF No. 18, the plaintiff,
Gallit Fischman’s (“Fischman”) Amended Complaint, Am. Compl.
(‘Am. Compl.”), ECF No. 17, which is fully briefed. See Def.’s
Mem. Supp. Mot. Dismiss (“Mem.”), ECF No. 19; Pl.’s Mem. Opp’n
Def.’s Mot. Dismiss (“Opp’n”), ECF No. 23; Reply, ECF No. 28,
Sur-reply, ECF No. 27. For the reasons stated below the motion
is ALLOWED and the action is DISMISSED without prejudice.

Although the parties do not point to any differences
between applying Texas or Massachusetts law, here the Court

needs to make a choice of law determination. Texas law applies.

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AUTHENTICATED
U.S. GOVERNMENT.
INFORMATION

GPO

Case 1:26-cv-11504-WGY Document37 _ Filed 10/15/26 Page2of5

See Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 333-34

(1983).

Count IV is brought under the Texas wrongful death statute.
See Tex. Civ. Prac. & Rem. Code Ann. § 71.002 (“The Wrongful
Death Act” or “the Act”). Under the Wrongful Death Act, the
State of Texas has statutorily enacted a claim for certain
relatives of a decedent “for damages arising from an injury that
causes an individual's death” if the Decedent themself would
have been able to sue for personal injuries had they lived. Id.

§ 71.002(b); Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 347

(Tex. 1992). The Wrongful Death Act is a narrow and a
collective action: “[t]he surviving spouse, children, and
parents of the deceased may bring the action or one or more of
those individuals may bring the action for the benefit of all.”
See Tex. Civ. Prac. & Rem. Code Ann. § 71.004(b) (emphasis
added). Indeed, the Act envisions a single action and recovery
as to a defendant, and where only one or some of the
beneficiaries bring the action, “it must appear that the suit

was brought for the benefit of all.” See Avila v. St. Luke's

Lutheran Hosp., 948 S.W.2d 841, 850 (Tex. App. 1997).

BCH argues, among other things, that Fischman has failed to
allege sufficient facts to show that she is the sole statutory
beneficiary of the Decedent. See Mem. at 14 n. 16 (‘Although

Plaintiff alleges that she is the daughter of the Decedent, she

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Case 1:26-cv-11504-WGY Document37_ Filed 10/15/26 Page3of5

does not bring her wrongful death action on behalf of statutory
beneficiaries as required under the Texas wrongful death
statute.”). BCH is correct.

In both Fischman’s original and amended complaint, she
affirmatively pleads that she brings the action as “a”
beneficiary of the Decedent and expressly disclaims bringing the
action on behalf of other statutory beneficiaries. See Compl. ]
4, ECF No. 1 (“[Plaintiff] brings this action individually and
as a statutory beneficiary of [the Decedent]”); Am. Compl. § 11.
(“[Plaintiff] brings this action solely in her individual
capacity as a statutory wrongful-death beneficiary of her father

Plaintiff does not bring this action on behalf of any
other person or entity.”). In fact, though not dispositive, the
record demonstrates that there appear to be other beneficiaries

of the Decedent. See Gallit Fischman and Ilana Fischman v. U.

Tex. Sw. Med. Ctr., Dallas County District Court, Cause No. DC-

25-18350, Pls.’ Sixth Am. Pet. at 2, ECF No. 21-8 (describing
Ilana Fischman as suing for wrongful death along with Fischman
under Texas law). Fischman’s Amended Complaint pleads a lack of
any other survivorship or estate theories. See Am. Compl. § 11
(“No estate has been opened, no survival claims are asserted,
and Plaintiff seeks only those damages recoverable in her own

right under the Texas Wrongful Death Act.”).

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Case 1:26-cv-11504-WGY Document3/7 _ Filed 10/15/26 Page4of5

Presuming all plausibly pleaded facts alleged in the
complaint as true, and drawing all inferences in favor of
Fischman, she has pleaded herself outside of the scope of the
Texas Wrongful Death Statute by failing to plead for the benefit
of all statutory beneficiaries. Fischman’s claim under the
Wrongful Death Act, Count IV, is therefore DISMISSED without
prejudice.

Counts I-III contain tort claims sounding in negligence
which are personal to the Decedent.1 Absent a wrongful death
claim, Fischman has no independent standing to bring these
claims on her own.? Counts I-III are therefore DISMISSED without
prejudice for lack of standing.

The Motion to Dismiss, ECF No. 18, is therefore ALLOWED.
The action is DISMISSED without PREJUDICE as to Counts I, II and
III because Fischman lacks independent standing as to those

counts, and DISMISSED without PREJUDICE as to Count IV for

1 See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 903

(Tex. 2000) (“[A]11 negligence actions are common-law claims.
. At common law, however, no personal injury cause of action
survived a victim's death. . . . The victim's heirs could not

sue on behalf of the victim or for their own losses due to the
tortious act.”); Johnson v. Rolls, 79 S.W. 513, 514 (Tex. 1904)
(“[A]t common law all causes of action for damages die with the
person of the party injured, or the person inflicting the
injury, except such damages as grow out of acts affecting the
property rights of the injured party.”).

2 Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d
780, 784 (Tex. 2006) (“absent a statute providing to the
contrary, a cause of action that is penal or personal in nature
typically does not survive .. . the death of either party.”).

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failure to state a claim upon which relief can be granted.3 The

Clerk is directed to enter a separate order closing the case.

SO ORDERED.

UNITED STATES?*

3. The Court need not, and does not, reach the other substantive
arguments made by BCH in its motion. To the extent Fischman
were to plead otherwise as to Count IV, the Court observes that,
under Local Rule 83.5.5, Fischman may be unable to proceed pro
se in this district. See generally L.R. 83.5.5(b) (pro se
litigants may not represent other parties); cf. Fischman v. Epic
Sys. Corp., No. 3:26-CV-0770-D, 2026 WL 1651510, at *7 (N.D.
Tex. June 8, 2026) (Fischman proceeding pro se, but notably with
no objection from BCH in that case at the motion to dismiss
stage); see N.D. Tex L.R. 83.14 (silent as to whether pro se can
appear on behalf of others).

4 This is how my predecessor, Peleg Sprague (D. Mass 1841-
1865), would sign official documents. Now that I’m a Senior
District Judge I adopt this format in honor of all the judicial
colleagues, state and federal, with whom I have had the
privilege to serve over the past 48 years.

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