Moreno v. Sterling Drug, Inc.

Citation787 S.W.2d 348
Decision Date28 March 1990
Docket NumberNo. C-7744,C-7744
Parties, Prod.Liab.Rep. (CCH) P 12,427 Alfred MORENO et al., Appellants, v. STERLING DRUG, INC., Appellees.
CourtSupreme Court of Texas

SPEARS, Justice.

This case is before us upon certified questions from the United States Court of Appeals for the Fifth Circuit. Pursuant to TEX. CONST. art. V § 3-c, we have jurisdiction to answer the following certified questions:

1. Does the "discovery rule" apply to the Texas Statute of Limitations, TEX.CIV.PRAC. & REM.CODE § 16.003(b), in an action brought pursuant to the Texas Wrongful Death and Survival Statutes, TEX.CIV.PRAC. & REM CODE § 71.001 et seq. and § 71.021, respectively?

2. If the discovery rule does not apply to the Texas Statute of Limitations in wrongful death and survival actions, does that statute of limitations as applied to the plaintiffs herein, violate the open courts provision of the Constitution of the State of Texas, TEX. CONST. art. I § 13?

For the reasons stated in this opinion, we answer that the discovery rule does not apply to the wrongful death statute of limitations found in section 16.003(b), and, that section 16.003(b) as applied to the plaintiffs in this case does not violate article I, section 13 of the Texas Constitution.

For clarity, we emphasize that these issues are before us on certified questions from the Fifth Circuit. This is a very limited procedural device; we answer only the questions certified and nothing more. See Tex.R.App.P. 114. Thus, the whole case is not before this court as it would be in an ordinary appeal.

The essential facts of this case have been certified to this court. On January 21, 1981, Alfred Moreno, Jr., the infant son of Alfred and Emma Moreno, died of Reye's syndrome. On September 19, 1981, Shawna Rae Sloan, the infant daughter of James and Camilla Sloan, died of Reye's syndrome. In the days preceding their deaths the infants had been administered doses of Bayer Children's Aspirin, manufactured by Sterling Drug, Inc. Sometime after the deaths of the infants the parents were informed that in some instances the use of aspirin factored into Reye's syndrome deaths. On October 22, 1985, the parents filed separate wrongful death suits against Sterling Drug in state district court. Sterling Drug removed the actions to the United States District Court for the Western District of Texas.

Following removal, Sterling Drug moved for summary judgment in both suits, claiming that the actions were barred by the Texas Wrongful Death Statute of Limitations, TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(b)(Vernon 1986). The federal district court dismissed the suits, citing the recent Fifth Circuit decision of Tennimon v. Bell Helicopter Textron, Inc., 823 F.2d 68 (5th Cir.1987), wherein that court held the discovery rule does not apply to section 16.003(b). The cases were consolidated on appeal, and Moreno and Sloan (collectively "Moreno") moved for certification of the legal questions to this court. A panel of the Fifth Circuit denied the motion to certify and affirmed in an unpublished opinion on the basis of Tennimon. On rehearing and after en banc reconsideration of the certification question, the Fifth Circuit granted the motion to certify.

The first question is whether the "discovery rule" applies to the statute of limitations for actions based on injuries resulting in death. The relevant limitations statute, section 16.003, TEX.CIV.PRAC. & REM.CODE ANN., provides as follows:

(a) A person must bring suit for ... personal injury ... not later than two years after the cause of action accrued.

(b) A person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person.

The only courts to construe section 16.003(b) have found it clear and unambiguous in prescribing an absolute two-year limitation period for bringing a wrongful death case. Tennimon v. Bell Helicopter Textron, Inc., 823 F.2d 68, 73 (5th Cir.1987); Stiles v. Union Carbide Corp., 520 F.Supp. 865, 867 (S.D.Tex.1981). Those decisions, along with a literal reading of section 16.003(b), would suggest that Moreno's wrongful death action is barred because it was brought after the two-year limitations period had expired. Moreno, however, argues that the "discovery" rule should apply to section 16.003(b), because he neither knew nor could have known the cause of his injury within the two-year limitation period. Specifically, he asserts that his suit was timely brought because it was filed within two years of the discovery of the link between aspirin and Reye's syndrome.

Moreno offers a number of arguments for why this court should disregard the plain language of section 16.003(b) and apply the discovery rule to the limitations period for wrongful death actions. First, he points out that this court has applied the discovery rule in determining the limitations period under the statutory predecessor to section 16.003(a), which governs actions for personal injury not resulting in death. Citing Ex parte Pruitt, 551 S.W.2d 706, 709 (Tex.1977) for the proposition that statutes should be read as a whole and construed to give purpose and meaning to every part, Moreno argues that the underlying purpose of section 16.003 is to authorize application of the discovery rule to subparts (a) and (b). Second, Moreno contends that the second sentence of section 16.003(b) only fixes the earliest time the cause of action may accrue and was intended to "save" the cause of action from being barred when more than two years elapse between injury and death. See DeHarn v. Mexican Nat'l Ry. Co., 86 Tex. 68, 23 S.W. 381 (1893). Moreno argues that this court should set the latest date of accrual beyond death (i.e. at discovery of cause of action) because the purpose of section 16.003(b) is to expand the time in which a wrongful death action can be brought. Finally, Moreno maintains that if subparts (a) and (b) are not interpreted consistently it will result in the absurdity of allowing a defendant to be exonerated for conduct which kills but held liable for conduct which merely maims. See Hanebuth v. Bell Helicopter International, 694 P.2d 143, 147 (Alaska 1984). Moreno argues that this court should avoid this absurdity by construing subpart (b) to allow application of the discovery rule.

We begin our analysis by observing that the primary purpose of section 16.003, as with all limitation statutes, is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available. Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988). Section 16.003 embodies a legislative determination of what a "reasonable time" is for bringing both an action for injuries not resulting in death (subpart a), and one for injuries resulting in death (subpart b). Under both subparts (a) and (b), an action must be brought within two years of the date the cause of action "accrues." Only subpart (b), however, goes on to specify that a cause of action "accrues" at a certain time--the date of death. When the legislature employs the term "accrues" without an accompanying definition, the courts must determine when that cause of action accrues and thus when the statute of limitations commences to run. Indeed, on three previous occasions this court has adopted and relied upon the following language from Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277, 285 (1961):

[T]he question when a cause of action accrues is a judicial one, and to determine it in any particular case is to establish a general rule of law for a class of cases, which rule must be founded on reason and justice.... In the absence of legislative definition and specification, the ... courts have often been called upon to delineate the statute; they have consciously sought to apply it with due regard to the underlying statutory policy of repose, without, however, permitting unnecessary individual injustices.

Willis, 760 S.W.2d at 644; Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex.1977); Gaddis v. Smith, 417 S.W.2d 577, 580-81 (Tex.1967).

For purposes of the application of limitation statutes, a cause of action can generally be said to accrue when the wrongful act effects an injury, regardless of when the plaintiff learned of such injury. Robinson, 550 S.W.2d at 19. The discovery rule represents an exception to this general rule of accrual. Id. The discovery rule is a judicially constructed test which is used to determine when a plaintiff's cause of action accrued. Weaver v. Witt, 561 S.W.2d 792, 794 (Tex.1977). When applied, the rule operates to toll the running of the period of limitations until the time that the plaintiff discovers, or through the exercise of reasonable care and diligence should discover, the nature of his injury. Id. at 793-94. This court has applied the discovery rule to medical malpractice cases in which the plaintiff did not, and could not, know of the injury at the time it occurred. See Gaddis v. Smith, 417 S.W.2d 577, 580 (Tex.1967) (negligence action against physician for leaving sponge in patient's body accrues when patient learns of, or in exercise of reasonable care and diligence, should have learned of presence of sponge); Hays v. Hall, 488 S.W.2d 412 (Tex.1972) (action for negligent performance of vasectomy accrues when plaintiff discovers or should have discovered that he remains fertile). Similarly, this court has applied the discovery rule in a limited number of other cases when the injured party did not, and could not, know of his injury at the time it occurred. See e.g., Bayouth v. Lion Oil Co., 671 S.W.2d 867 (Tex.1984); Kelley v. Rinkle, 532 S.W.2d 947 (Tex.1976); Quinn v. Press, 135 Tex. 60, ...

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