NEW SUPREME COURT STATUTE OF LIMITATIONS OPINION

In personal injury actions, the statute of limitations generally begins to run on the date of injury. The “discovery rule” modifies that bright line rule. Under the discovery rule, accrual of a cause of action might be delayed until after the time of the injury if the plaintiff did not then suspect negligence.

The California Supreme Court yesterday issued an opinion that discusses the operation of the discovery rule in cases in which there is more than one alleged negligent cause of the plaintiff’s injury but the plaintiff discovers the different causes at different times. In Fox v. Ethicon Endo-Surgery, Inc. (May 9, 2005, S121173) ___ Cal.4th ___ (which can be viewed here), the plaintiff sued for alleged medical malpractice during a surgery. More than a year after she filed suit and more than two years after the surgery, she also sued the manufacturer of a medical device that she allegedly had only recently discovered had malfunctioned during the surgery. The trial court ruled her action against the manufacturer was time barred. The Supreme Court held otherwise.

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.” In doing so, however, the court stressed the strict nature of the delayed discovery rule: “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. [Citation.] This 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.”

Horvitz & Levy partners David S. Ettinger and Andrea M. Gauthier filed an amici curiae brief on behalf of the California Medical Association, the California Dental Association, and the California Hospital Association in the Fox case. For more information, call David or Andrea at (818) 995-0800 or send them an e-mail at dettinger@horvitzlevy.com or agauthier@horvitzlevy.com.

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