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In California, the two-year statute of limitations for personal-injury lawsuits usually accrues on the date of injury. A plaintiff who files a lawsuit one day after expiration of the statute faces dismissal of an otherwise valid cause of action. An important exception, however, is the discovery rule, which delays accrual of a cause of action until the plaintiff discovers, or should have discovered, that the injury was caused by the wrongdoing of another. Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103. While the discovery rule appears relatively straightforward, its application becomes complicated for California practitioners in cases involving multiple defendants committing separate wrongful acts. This situation often arises in the context of combined medical malpractice/products liability cases, where the plaintiff immediately suspects his or her surgeon of malpractice and brings a negligence claim, but later learns, perhaps several years later, that a defective medical device used by the surgeon may have contributed to the plaintiff’s injury. In such cases, the plaintiff’s ability to bring an otherwise untimely cause of action for products liability hinges on how the court applies the discovery rule, i.e., whether the clock starts to run against the product manufacturer when the plaintiff first learns of or suspects the surgeon’s negligence, or when the plaintiff first learns or suspects that a defective product may have caused injury. The 4th District Court of Appeal confronted the issue head-on in Bristol-Myers Squibb v. Superior Court (1995) 32 Cal.App.4th 959. The court adopted a bright-line approach, holding that, when a plaintiff has knowledge of an injury and a suspicion of wrongdoing, the statute of limitations begins to run as to all defendants, known or unknown. Under this strict interpretation of the discovery rule, a plaintiff who suspects his or her surgeon of malpractice and brings a timely negligence claim, but later learns, after the two-year statute of limitations has run, that a defective medical device used during surgery may have contributed to plaintiff’s injury, is barred from bringing a products liability cause of action against the product’s manufacturer. In other words, a plaintiff who had no reason to suspect that a defective product caused his or her claimed injuries would be precluded from bringing an otherwise legitimate products claim. In a recent unanimous decision, however, the California Supreme Court rejected the bright-line approach adopted in Bristol-Myers. In the underlying case of what would become Fox v. Ethicon Endo-Surgery (2005) 35 Cal.4th 797, the plaintiff brought a timely medical malpractice action against her surgeon for injuries discovered immediately following a gastric bypass surgery. During the surgeon’s deposition nearly 2 1/2 years after surgery, he revealed that he had used a stapler during surgery that might have caused a perforation of plaintiff’s small intestine possibly resulting in post-surgery leaks. The surgeon identified the stapler as an “Ethicon GIA-type stapler” and testified that the stapler had caused unintended post-surgery leaks in prior surgeries. Based on the surgeon’s revelation, the plaintiff immediately filed a first amended complaint adding a products liability cause of action against Ethicon Endo-Surgical Inc., the stapler manufacturer. Ethicon demurred on statute of limitations grounds, and Fresno County Superior Court granted the demurrer, relying on the bright-line approach of Bristol-Myers. The trial court held that the statute of limitations began to run against all potential defendants when plaintiff suspected the medical malpractice of her surgeon immediately following her surgery. The court rejected plaintiff’s argument that the discovery rule should have extended her products action because she could not, with reasonable investigation, have discovered earlier that the medical device might have caused her injuries. The 5th District vacated and remanded the trial court’s judgment with instructions to allow plaintiff leave to amend her products liability claim to allege that a reasonable person would not have suspected a products liability cause of action within the limitations period. The 5th District rejected the bright-line test of imputed simultaneous discovery applied in Bristol-Myers. It concluded that the Bristol-Myers rule should not be extended beyond those instances where a plaintiff actually suspects or has reason to suspect wrongdoing on the part of the product manufacturer. It reasoned that the consequences that flow from the bright-line rule would require a plaintiff to suspect a defect in every manufactured item used during his or her surgery. Accordingly, to satisfy the bright-line rule, complaints would have to include allegations regarding all potential wrongdoing, resulting in a “regression to the more formalistic pleading requirements of bygone years.” The California Supreme Court affirmed, finding that the statute of limitations does not necessarily begin to run against all potential defendants once a plaintiff realizes a possible claim against one of them. The unanimous opinion, authored by Justice Carlos Moreno, reaffirmed the appellate court’s rejection of the bright-line approach of Bristol-Myers as overly broad. In doing so, it provided some much needed guidance for California practitioners regarding the application of the discovery rule in cases involving multiple defendants committing separate wrongful acts. The Supreme Court began its analysis by defining the parameters of the discovery rule. In order for a cause of action to accrue, the court explained, a plaintiff must know or suspect the generic elements of a cause of action, specifically — wrongdoing, causation and harm. In other words, the plaintiff must have reason to suspect that a particular type of wrongdoing has injured her. The fact that a plaintiff is or should be aware of one particular type of wrongdoing (medical malpractice) does not necessarily mean plaintiff is aware or should be aware of another (products liability). The Supreme Court concluded that, “If a plaintiff’s reasonable and diligent investigation discloses only one kind of wrongdoing when the injury was actually caused by tortious conduct of a wholly different sort, the discovery rule postpones accrual of the statute of limitations on the newly discovered claim.” The Supreme Court also emphasized that there is a “sharp distinction” between a plaintiff’s ignorance of a defendant’s identity and plaintiff’s ignorance of a cause of action (i.e. wrongdoing, causation and harm.) In the context of a products liability action, the court noted, the identity of the wrongdoer is not an essential element of a cause of action, and therefore does not delay the running of the statute of limitations. On the other hand, ignorance of a manufacturer’s wrongdoing is an essential element of a products liability cause of action and therefore the discovery rule tolls the statute of limitations. The court was critical of the Bristol-Myers decision because it did not account for this important distinction, stating that “the court of appeal in Bristol-Myers Squibb failed to distinguish between a plaintiff’s ignorance of the identity of a particular defendant — a fact that is not an element of the underlying cause of action — and ignorance that a product was the cause of the injury.” The Supreme Court relied on public policy to support its rejection of the Bristol-Myers bright-line rule, noting that it would be “contrary to public policy to require plaintiffs to file a lawsuit ‘at a time when the evidence available to them failed to indicate a cause of action.’” Id., citing 1995′s Leaf v. City of San Mateo, 104 Cal.App.3d 398, and 1979′s Enfield v. Hunt, 91 Cal.App.3d 417. If plaintiffs were required to file any and all potential causes of actions when only one has accrued, as is seemingly required by the Bristol-Myers bright-line rule, they could be sanctioned for bringing them without factual support. As the court stated, “It would be difficult to describe a cause of action filed by a plaintiff, before that plaintiff reasonably suspects that the cause of action is meritorious one, as anything but frivolous.” Further, plaintiff’s cause of action would be subject to demurrer for failure to allege supporting facts with specificity. In short, the court found that, for public policy reasons — specifically the avoidance of the filing of meritless causes of actions — the Bristol-Myers bright-line rule should be rejected. California practitioners, however, should not interpret the Ethicon decision as carte blanche to “wait for the facts” rather than diligently pursuing them. As the Supreme Court noted, “[a] plaintiff seeking to utilize the discovery rule must plead facts to show his or her inability to have discovered the necessary information earlier despite reasonable diligence.” The “duty to be diligent in discovering facts that would delay accrual of a cause of action ensures that plaintiffs who do ‘wait for the facts’ will be unable to successfully avoid summary judgment against them on statute of limitations grounds.” In practice, this means that practitioners cannot sit on known facts or neglect making reasonable efforts to discover potentially relevant facts. To do so, even after the Ethicon decision, might result in serious consequences. The Supreme Court’s rejection of the bright-line approach of Bristol-Myers has practical implications for both plaintiff and defense practitioners. The breadth of those implications remains to be seen as the Ethicon analysis arguably applies to scenarios outside the context of combined medical malpractice and products liability cases. For instance, it is conceivable that in suits involving automobile accidents, where one driver is suing another for negligence and later learns that a defect in a component of the adverse driver’s automobile may have contributed to the accident, the decision may be used to keep an otherwise untimely products action alive. Whatever the scope of the decision, it is clear that it will allow plaintiff lawyers to pursue causes of actions for their clients that might have been previously barred by the personal injury statute of limitations. Conversely, defense lawyers may find it more difficult to dispose of causes of actions against their clients on statute of limitations grounds. Dean A. Martoccia is a litigation associate at Seyfarth Shaw in Los Angeles. He can be reached at [email protected]. David Martinez is an associate at Robins, Kaplan, Miller & Ciresi in Los Angeles where he specializes in complex litigation. He can be reached at [email protected].

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