Frederick v. Calbio Pharmaceuticals

• Decision Date: 31 January 1979
• Court: California Court of Appeals Court of Appeals
• Parties: Rose Ellen FREDERICK, Alan Frederick and Leslie Frederick, Plaintiffs and Appellants, v. CALBIO PHARMACEUTICALS, a Division of Calbiochem, a California Corporation, Defendant and Respondent. Civ. 53928.

Page 292

152 Cal.Rptr. 292

89 Cal.App.3d 49

Rose Ellen FREDERICK, Alan Frederick and Leslie Frederick, Plaintiffs and Appellants, v. CALBIO PHARMACEUTICALS, a Division of Calbiochem, a California Corporation, Defendant and Respondent.

Civ. 53928.

Court of Appeal, Second District, Division 3, California.

Jan. 31, 1979.

Bernard Meyerson, Oxnard, for plaintiffs and appellants.

Jones & Wilson, and Robert L. Wilson, Los Angeles, for defendant and respondent.

POTTER, Acting Presiding Justice.

Plaintiffs Rose Ellen Frederick, Alan Frederick and Leslie Frederick appeal from the judgment dismissing their complaint against defendant Calbio Pharmaceuticals for damages for the wrongful death of William Frederick. The judgment was entered after defendant's demurrer was sustained with 30 days' leave to amend, and plaintiffs failed within that time to file an amended pleading.

The sole ground of demurrer was "(t)hat the complaint, and each and every cause of action thereof, is barred by the statute of limitations, namely, Section 340(3) of the California Code of Civil Procedure."

The complaint charged each defendant with having "negligently, carelessly and recklessly" caused a drug to be distributed "for experimental and investigational use without establishing the necessary safeguards and controls to prevent their distributees from administering said drug to patients," and that defendants "knew, or should (have) known that incident to the use of (said drug) was the risk of Thrombotic Complications, Myocardial Infarction and Blood Clotting." Massive doses of the drug were administered to decedent "from on or about October 28, 1974 to January 27, 1975." On January 31, 1975, "as a direct and proximate result of the said negligence or acts and omissions of Defendants, the decedent suffered a Hemorrhagic Thrombus extending into the Anterior Descending Coronary Artery from which decedent died."

The allegations of the complaint with respect to discovery of the connection between defendants' negligence and the death of the decedent were all contained in paragraph 13. It read as follows:

"The facts alleged herein as the cause of death of decedent did not become known to the Plaintiffs, neither could they by the exercise of reasonable diligence have become aware of said facts, until after the Food and Drug Administration of the United States on or about August 13, 1976 issued a press release that the said drug also known as TRIAZURE was being recalled due to incidents of Thrombosis and Blood Clotting attributed to use of said drug and it was reported that one patient died and another developed Arterial Thrombosis which resulted in amputation of the left lower leg and other incidents which were serious and constituted a pattern of danger to patients undergoing therapy with this drug."

The memorandum of points and authorities in support of the demurrer did not question the sufficiency of the allegations of paragraph 13 to show circumstances excusing delayed discovery of the cause of decedent's death. Instead, defendant relied exclusively on the proposition that the one-year limitation period for wrongful death actions (other than "causes of action for 'professional negligence' against 'health care providers' as those terms are defined in § 340(5) of the Code of Civil Procedure") "must be instituted within one year from the date of death." Defendant argued:

"There is no reported case involving death where the exception ¹ delaying accrual of the cause of action was permitted. If the Court permits a wrongful death case to be asserted against defendant herein because (as is alleged in paragraphs 13 and 14 of the complaint) the plaintiffs did not learn of the hazards of Azaribine prior to an FDA press release dated August 13, 1976, then there would be no viable limitations period available to a drug manufacturer."

The order sustaining the demurrer read: "Demurrer is sustained on ground set forth therein."

Contentions

Plaintiffs contend that (1) the one-year limitation specified in Code of Civil Procedure section 340, subdivision 3, for wrongful death actions does not commence to run until the wrongful death heirs discover or should have discovered their injury in the form of the death of their decedent and its negligence cause, and (2) the complaint pleaded sufficient facts to justify delayed accrual. Defendant contends that (1) wrongful death actions (other than those for "professional negligence" against "health care providers") must in all events be brought within one year from the date of death, and (2) the allegations of the complaint are inadequate to justify delayed discovery.

Discussion

Summary

A wrongful death action against a manufacturer based upon negligence or products liability comes within the rule that a plaintiff who is "blamelessly ignorant" of his cause of action is not barred by his delay in bringing suit; the one-year period to file suit, therefore, commences on the date on which the plaintiff discovers, or should have discovered, his injury in the form of the death of his decedent and its tortious cause. The allegations of the complaint adequately pleaded the circumstances under which plaintiffs discovered the negligent cause of the decedent's injury. Additional facts might have been pleaded explaining the conclusory allegation that plaintiffs could not "by the exercise of reasonable diligence have become aware of said facts" but defendant did not urge that deficiency as the basis for its demurrer. Consequently, plaintiffs had no meaningful opportunity to amend to meet this objection, and the judgment should not be affirmed on that basis.

The One-Year Limitation for Wrongful Death Actions Does Not Commence to Run Until Wrongful Death Heirs Have Discovered, or Should Have Discovered, Their Injury in the Form of Death of Their Decedent and its Negligent Cause Defendant's contention that the one-year statute of limitations on wrongful death actions provided by Code of Civil Procedure section 340, subdivision 3, in all events commences to run on the death of the decedent is contrary to well-established California authority and is unsupported by any of the authorities cited.

Defendant's reliance on the annotation in (1964) 97 A.L.R.2d 1151 is misplaced. Though that annotation states the general rule that "the action must be instituted within the statutory period from the date of death" (Id., at p. 1154), the scope of the annotation is stated as follows (Id., at p. 1153):

"The aim is only to elucidate questions as to when the period of limitation Normally begins to run. No attempt is made to cover matters of disability or to treat special provisions delaying the normal initiation of the limitation period under particular circumstances." (Emphasis added.)

The same is true of Frost v. State of California (1966) 247 Cal.App.2d 378, 382, 55 Cal.Rptr. 652, 655; it merely stated that a "cause of action for wrongful death arose on the date of death" under the circumstances of that case, which did not involve any claim of delayed discovery of the cause of the death.

Except in the case of wrongful death claims for "professional negligence" against "a health care provider," governed by Code of Civil Procedure section 340.5, ² the statute of limitations applicable to wrongful death actions is Code of Civil Procedure section 340, subdivision 3, specifically referring to actions "for injury to or for the death of one caused by the wrongful act or neglect of another . . . ." Section 340, subdivision 3, does not specify when the one-year period commences. However, since no cause of action for wrongful death can exist until the death of the decedent and it "is an entirely new cause of action created in the heirs and based on the death of the decedent as that death inflicted injury upon them" (Larcher v. Wanless (1976) 18 Cal.3d 646, 656-657, 135 Cal.Rptr. 75, 80, 557 P.2d 507), the earliest date that the one-year period could start would be the date of death.

Since 1905, Code of Civil Procedure section 340 has included wrongful death actions along with "other actions such as libel, slander and the like" in a "general statute of limitations." (Wohlgemuth v. Meyer (1956) 139 Cal.App.2d 326, 328, 293 P.2d 816.) Concerning the effect of this inclusion, the Wohlgemuth court said (Id., at p. 329, 293 P.2d at p. 818):

" 'That intendment, manifestly, is to place the right of action accorded by section 377 in the category of other causes, and To apply the statute of limitations to that action in manner and substance as applied to all other civil actions, treating it as a part of the remedy only, and not as a condition to the cause.' " (Emphasis added.)

Consequently, any general rule deferring commencement of the one-year period specified in Code of Civil Procedure section 340, subdivision 3, applicable to personal injury actions is likewise applicable to wrongful death claims. On that basis, the court in Wohlgemuth upheld the wrongful death heirs' right to rely upon the fact that she "with due diligence could not have ascertained and did not ascertain defendants' negligence" (139 Cal.App.2d at p. 330, 293 P.2d at p. 819) until a date within one year from the date of filing, saying (Id., at p. 331, 293 P.2d at p. 819):

" 'It is a further settled rule in malpractice cases that the statute of limitations only starts to run from the date of discovery of, or the date when by the exercise of reasonable diligence the plaintiff should have discovered, the wrongful act.' . . . "

The rule in malpractice cases so referred to was merely a specific application of a more general rule deferring commencement of the statutory period where the plaintiff was "blamelessly ignorant" of the negligent cause of his injury.

The seminal case injecting this principle into negligence law in California was Huysman v. Kirsch (1936) 6 Cal.2d 302, 57 P.2d 908. The judgment for defendant, rendered after the sustaining of an objection to the...