The discovery rule applies to a woman's claim against the manufacturer of an allegedly defective medical stapler that caused post-surgical complications, the California Supreme Court held May 9 (Fox v. Ethicon Endo-Surgery Inc., Cal., No. S121173, 5/9/05).

Saying the limitations period on the product liability claim was independent of the limitations period on the woman's related medical malpractice claim, the court rejected its earlier "bright line rule of imputed simultaneous discovery of causes of action."

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 court said.

Gastric Bypass Complications.

Brandi Fox filed a medical malpractice claim after gastric bypass surgery on April 10, 1999, resulted in severe complications that required follow-up exploratory surgery, the court said. The operative report from her surgeon, Dr. Robert Gladen, did not identify a cause of the complication.

When Fox deposed Gladen on Aug. 13, 2001, he testified that he had discovered a leak at the stapled closure of Fox's small intestine during the exploratory procedure. He further noted that the bowel had been stapled with an "Ethicon GIA-type stapler," furnished by the hospital, and that he had found on previous occasions that the stapler caused postsurgery leaks.

On Nov. 28, 2001, Fox amended her complaint to add Ethicon Endo-Surgery Inc. Ethicon said the suit was barred by California's one-year statute of limitations. Fox relied on the delayed discovery rule discussed in Norgart v. Upjohn Co. 21 Cal.4th 383 (1999).

In Norgart, a panel of the court of appeals held that under the discovery rule, when there are "potentially multiple, … unrelated, [and] concurring" causes, a plaintiff discovers or has reason to discover a cause of action "based on a particular act of wrongdoing" by a particular defendant, only when he at least suspects the act of wrongdoing by that defendant.

Fox argued that she could not, with reasonable investigation, have discovered earlier that the medical device might have caused her injury. She said she had no knowledge that the surgery would involve a stapler or any similar device and that she first discovered the stapler malfunction when she deposed the surgeon.

A trial court sustained the demurrer but the court of appeals reversed. The high court granted review.

Under the limitations period applicable in this case, Fox must bring a cause of action within one year of accrual, the court said. Because her injury occurred April 10, 1999, and the product suit was filed Nov. 28, 2001, her suit is timely only if the discovery rule acted to delay accrual.

Defendant Urges Simultaneous Discovery.

Ethicon urged the court to adopt the restrictive formulation of the discovery rule of Bristol-Myers Squibb Co. v. Superior Court, 32 Cal. App. 4th 959 (1995). In that case, a plaintiff's silicone breast implant was ruptured in an altercation in 1982. Two years later, the plaintiff learned of the rupture, that silicone was migrating down her arm, and that the silicone was causing ulcerations.

A California appeals court held that the product liability claim against the implant manufacturer began to run when the statute of limitations on the medical malpractice action commenced. It reasoned that "when a plaintiff has cause or reason to sue based on knowledge or suspicion of negligence the statute starts to run as to all potential defendants," regardless of whether those defendants are alleged as wrongdoers in a separate but related cause of action.

The high court noted that it has neither approved nor disapproved the Bristol-Myers Squibb formulation.

In Fox's case, the appeals court said the delayed discovery of her product liability claim should be analyzed based on the facts and circumstances relevant to that claim. It noted a sharp distinction in California law between a plaintiff's ignorance of the identity of a person who committed a suspected wrong and ignorance of the existence of a cause of action.

The high court observed that while it has held that ignorance of a defendant's identity does not delay accrual of a cause of action, ignorance of a generic element of the cause of action does.

"It is therefore consistent with our prior applications of the discovery rule to delay accrual of a product liability cause of action even when a related medical malpractice claim has already accrued, unless the plaintiff has reason to suspect that his or her injury resulted from a defective product," the court said.

In Norgart, the plaintiffs had reason to suspect that a product had caused injury. Their daughter had committed suicide at home by intentionally taking an overdose of prescription drugs, including Halcion. The court said the suit was time-barred because the plaintiffs had reason to discover their cause of action against Halcion's manufacturer when they learned at the time of her depression and suicide that she was taking the medication.

The Norgart decision presupposes a situation in which the factual basis for the claim was reasonably discoverable through diligent investigation, the court said.

Different Wrongdoing, Different Wrongdoer.

But as the allegations in this case illustrate, "a diligent plaintiff's investigation may only disclose an action for one type of tort (e.g. medical malpractice) and facts supporting an entirely different type of tort action (e.g. product liability) may, through no fault of the plaintiff, only come to light at a later date.

"Although both claims seek to redress the same physical injury to the plaintiff, they are based on two distinct types of wrongdoing and should be treated separately in that regard," the court said.

The bright-line rule in Bristol-Myers Squibb is inconsistent with the generic elements approach prescribed by Norgart, the court said.

The court also noted it would be contrary to public policy to require a plaintiff to file suit at a time when evidence failed to indicate a cause of action.

Judge Carlos R. Moreno wrote the unanimous opinion.

Fox was represented by David J. St. Louis and Lynette D. Hecker of the Law Offices of David J. St. Louis. Ethicon was represented by Charles F. Preuss and Alan J. Lazarus of Drinker, Biddle & Reath.