Fox v. Ethicon Endo-Surgery, Inc.

Citation35 Cal.4th 797,110 P.3d 914,27 Cal.Rptr.3d 661
Decision Date09 May 2005
Docket NumberNo. S121173.,S121173.
CourtUnited States State Supreme Court (California)
PartiesBrandi R. FOX, Plaintiff and Appellant, v. ETHICON ENDO-SURGERY, INC., Defendant and Respondent.

Law Offices of David J. St. Louis, David J. St. Louis and Lynette D. Hecker, Fresno, for Plaintiff and Appellant.

Robinson, Calcagnie & Robinson and Sharon J. Arkin, Newport Beach, for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.

Drinker Biddle & Reath, Charles F. Preuss and Alan J. Lazarus, San Francisco, for Defendant and Respondent.

Hugh F. Young, Jr., and Harvey M. Grossman, Los Angeles, for The Product

Liability Advisory Council, Inc., as Amicus Curiae on behalf of Defendant and Respondent.

Horvitz & Levy, David S. Ettinger and Andrea M. Gauthier, Encino, for California Medical Association, California Dental Association and California Healthcare Association as Amici Curiae on behalf of Defendant and Respondent.

MORENO, J.

Plaintiff Brandi R. Fox filed a medical malpractice action after gastric bypass surgery performed on her resulted in severe complications. In the course of discovery, Fox received information that a medical device used during the surgery may have malfunctioned, causing her injury. Fox then amended her complaint to add a products liability cause of action against the manufacturer of the device, Ethicon Endo-Surgery, Inc. (Ethicon). Ethicon filed a demurrer raising a statute of limitations defense, to which plaintiff responded by relying upon the delayed discovery rule most recently discussed by this court in Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 87 Cal.Rptr.2d 453, 981 P.2d 79 (Norgart).

Plaintiff alleges that she could not, with reasonable investigation, have discovered earlier that the medical device might have caused her injury. We granted review to determine whether such an allegation is sufficient to withstand demurrer, or whether we should adopt the bright-line rule announced in Bristol-Myers Squibb Co. v. Superior Court (1995) 32 Cal. App.4th 959, 966, 38 Cal.Rptr.2d 298 (Bristol-Myers Squibb), that "[w]hen a plaintiff has cause to sue based on knowledge or suspicion of negligence the statute [of limitations] starts to run as to all potential defendants."

We conclude that, under the delayed discovery rule, a cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for that particular cause of action. In that case, the statute of limitations for that cause of action will be tolled until such time as a reasonable investigation would have revealed its factual basis. We disapprove the decision in Bristol-Myers Squibb v. Superior Court, supra, 32 Cal.App.4th 959, 38 Cal.Rptr.2d 298, to the extent that it holds to the contrary.

I. FACTS AND PROCEDURAL HISTORY

On April 10, 1999, respondent Brandi R. Fox underwent Roux-en-Y gastric bypass surgery and post-surgical treatment.1 The operation was performed by Dr. Herbert Gladen. During the surgery, Fox was under general anesthesia and unconscious. Fox went home following the surgery, but returned soon after the surgery because she felt ill.

Fox's condition worsened, moving Dr. Gladen to perform exploratory surgery a few days after the gastric bypass operation. The exploratory surgery revealed a perforation at the stapled closure of the small intestine, which caused fluid to leak into Fox's abdominal cavity. Dr. Gladen attempted to seal the perforation. In his operative report for the exploratory surgery, Dr. Gladen failed to identify a cause for the perforation. Fox required additional medical care and remained hospitalized until March 4, 2000.

On April 6, 2000, Fox served Dr. Gladen, and the hospital and medical center in Fresno where the surgery and subsequent care took place, with a notice of intent to commence action pursuant to Code of Civil Procedure section 364. Fox filed a complaint for medical malpractice against the doctor and the treating hospitals in Fresno County Superior Court on June 28, 2000. In her complaint, Fox claimed that "[d]efendants lacked the necessary knowledge and skill to properly care for [her] condition and were negligent and unskillful in the diagnosis, treatment, and prescription procedures utilized in treating [her] condition. The negligence claimed is for negligently performing pre-surgical, surgical, and post-surgical care so as to cause injuries and damages to ... Fox."

Fox named as defendants Dr. Gladen, the hospital and medical center, and Does 1 to 100, inclusive. The complaint alleged that "the defendants named herein as DOES 1 through 100, inclusive, were the agents, servants, and employees of each of the remaining defendants, and in doing the things hereinafter alleged, were acting within the course and scope of their authority as such agents, servants, or employees, and with the permission and consent of their codefendants."

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

Accordingly, on November 28, 2001, Fox filed a first amended complaint adding the manufacturer of the stapler, Ethicon, as a named defendant. In the first amended complaint, Fox asserted a products liability cause of action against Ethicon, alleging that she was injured by an "Ethicon GIA-type stapler" on or about April 10, 1999. Fox used a Judicial Council form for products liability causes of action, specifying counts for strict liability relating to the design, manufacture, and assembly of the stapler, negligence, and breach of implied warranty. The first amended complaint also alleged that Fox "did not discover, nor suspect, nor was there any means through which her reasonable diligence would have revealed, or through which she would have suspected the Ethicon GIA-type stapler as a cause of her injury until the deposition of [Dr. Gladen] was taken on August 13, 2001."

Ethicon demurred to the first amended complaint, contending that the products liability claim was time-barred by the one-year statute of limitations under Code of Civil Procedure former section 340, former subdivision 3. (Stats.1982, ch. 517, § 97, p. 2334; see fn. 3, post.) In opposition, Fox noted that she had no knowledge that the gastric bypass surgery would involve the use of a stapler or any similar device.

Fox further stated that she never learned during the postsurgical care following the gastric bypass operation that the stapler had malfunctioned or could have caused the leakage and other problems, and that she first discovered the possibility of a stapler malfunction when her counsel notified her of Dr. Gladen's deposition testimony. Finally, Fox offered to file a second amended complaint to clarify the facts supporting her assertion that she had no reason to suspect the stapler until after Dr. Gladen's testimony, and that no reasonable person would have suspected that the Ethicon product had malfunctioned.

Fox's attorney also filed a declaration stating that neither the operative report nor the reparative operative report indicated that the stapler had malfunctioned or misfired. The declaration also stated that Dr. Gladen's testimony was taken during the normal course of discovery in a medical malpractice lawsuit, Fox was reasonably diligent in pursuing the lawsuit and discovery, and Fox could allege that Dr. Gladen never mentioned a stapler malfunction or defect during the entire course of his postsurgical care.

On June 17, 2002, the superior court sustained Ethicon's demurrer to the products liability cause of action without leave to amend, relying upon Norgart, supra, 21 Cal.4th 383, 87 Cal.Rptr.2d 453, 981 P.2d 79, and Bristol-Myers Squibb, supra, 32 Cal.App.4th 959, 38 Cal.Rptr.2d 298, to conclude that the statute of limitations barred the products liability cause of action. The superior court stated that when a plaintiff sues based on knowledge or suspicion of negligence, including medical malpractice as in Fox's case, the statute of limitations begins to run as to all defendants, including manufacturers possibly liable under products liability theories. The superior court also stated that Fox failed to demonstrate that amending the complaint could "overcome the limitations defense." Fox timely appealed from the superior court's order sustaining Ethicon's demurrer as to the products liability cause of action.

The Court of Appeal reversed the superior court's order and remanded with directions to grant Fox leave to amend to allege facts explaining why she did not have reason to discover earlier the factual basis of her products liability claim. In so ruling, the Court of Appeal held that Bristol-Myers Squibb's "bright-line rule of imputed simultaneous discovery of causes of action" did not apply. Ethicon petitioned this court, and we granted review.

II. DISCUSSION

This case requires us to address once again the proper application of a statute of limitations. (See Gutierrez v. Mofid (1985) 39 Cal.3d 892, 218 Cal.Rptr. 313, 705 P.2d 886; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 245 Cal.Rptr. 658, 751 P.2d 923 (Jolly); Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 30 Cal. Rptr.2d 440, 873 P.2d 613 (Bernson); Norgart, supra, 21 Cal.4th at p. 395, 87 Cal.Rptr.2d 453, 981 P.2d 79.)

"Statute of limitations" is the collective term applied to acts or parts of acts that prescribe the periods beyond which a plaintiff may not bring a cause of action. (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 405,...

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