Norgart v. Upjohn Co., 21 Cal. 4th 383

Citation21 Cal.4th 383,981 P. 2d 79,87 Cal.Rptr.2d 453
Decision Date16 August 1999
Docket NumberNo. S071633,S071633
CourtUnited States State Supreme Court (California)
Parties, 981 P.2d 79, Prod.Liab.Rep. (CCH) P 15,605, 99 Cal. Daily Op. Serv. 6596, 1999 Daily Journal D.A.R. 8387 Leo NORGART, Individually and as Administrator, etc., et al., Plaintiffs and Appellants, v. The UPJOHN COMPANY, Defendant and Respondent

Peter Ticktin & Associates, Peter Ticktin, Caron Speas; and Marc Stern for Plaintiffs and Appellants.

Sedgwick, Detert, Moran & Arnold, Michael F. Healy, Frederick D. Baker, Kathryn H. Edwards and Kirk C. Jenkins for Defendant and Respondent.

Hugh F. Young, Jr.; and Harvey M. Grossman for the Product Liability Advisory Council, Inc., as Amicus Curiae on behalf of Defendant and Respondent.

Haight, Brown & Bonesteel, Roy G. Weatherup, William J. Sayers and Caroline E. Chan for the Center for Claims Resolution as Amicus Curiae on behalf of Defendant and Respondent.

Horvitz & Levy, Frederic D. Cohen and Wendy S. Albers for California Medical Association, California Dental Association and California Healthcare Association as Amici Curiae.

Opinion by Mosk, J., with George, C. J., Baxter, Werdegar, Chin, and Brown, JJ., concurring. Concurring and dissenting opinion by Kennard, J. (see p. 410).

MOSK, J.

Under the statute of limitations, a plaintiff must bring a cause of action within the limitations period applicable thereto after accrual of the cause of action. The general rule for defining the accrual of a cause of action sets the date as the time when the cause of action is complete with all of its elements. An exception is the discovery rule, which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action, until, that is, he at least suspects, or has reason to suspect, a factual basis for its elements.

We granted review to address questions concerning the statute of limitations in the setting of the "controversial" prescription hypnotic or sleeping drug Halcion. ( Ballan v. Upjohn Co. (W.D.Mich. 1994) 159 F.R.D. 473, 477; see, e.g., Carlin v. Superior Court (1996) 13 Cal. 4th 1104, 1109 [56 Cal. Rptr. 2d 162, 920 P.2d 1347].)

I

The factual background and procedural history of the action before us are each somewhat complex. The matters and events that are of consequence for present purposes may be summarized as follows.

On October 16, 1991, a complaint for damages was filed in the Superior Court of Sonoma County to initiate this action.

As subsequently, and finally, amended into its operative form, the complaint named as plaintiffs Leo and Phyllis Norgart, in their personal capacity, and Leo, in his capacity as administrator of the estate of their deceased adult daughter, Kristi Norgart McBride. It named as defendant The Upjohn Company, a manufacturer and distributor of pharmaceutical products, including Halcion. 1 It purported to name as well Steven McBride, Kristi's husband, but did not make any allegations against him or pray for any relief from his hands.

In the operative complaint, the Norgarts brought causes of action against Upjohn for wrongful death--whose elements include (1) a "wrongful act or neglect" on the part of one or more persons that (2) "cause[s]" (3) the "death of [another] person" (Code Civ. Proc., § 377.60)--on legal theories of negligence and strict liability.

The Norgarts also brought causes of action against Upjohn for fraud, labeled "fraud" simpliciter and "conspiracy to commit fraud," that belonged to Kristi and survived her death.

Going to the core of the merits of all of their causes of action, the Norgarts alleged, in effect, that, on October 16, 1985, exactly six years before the action was initiated, Kristi had committed suicide in her home in Santa Rosa by means of an intentional overdose of prescription drugs including Halcion, which was not accompanied by adequate warnings and was, regardless of any possible warnings, "unreasonably dangerous," at least at higher dosage levels. In connection therewith, they attached as part of the pleading the package insert that Upjohn had prepared for Halcion, which, at all pertinent times, contained the following statement: "Precautions"--"Caution should be exercised if Halcion is prescribed to patients with signs or symptoms of depression which could be intensified by hypnotic drugs. Suicidal tendencies may be present in such patients and protective measures may be required. Intentional overdosage is more common in these patients, and the least amount of drug that is feasible should be available to the patient at any one time."

In anticipation, and avoidance, of an affirmative defense by Upjohn based on the statute of limitations, which prescribed a limitations period of one year for causes of action for wrongful death (Code Civ. Proc., § 340, subd. (3)) and a limitations period of three years for causes of action for fraud (id., § 338, subd. (d)), the Norgarts alleged, as follows, in order to invoke the doctrine that a defendant who has fraudulently concealed a cause of action may be equitably estopped from raising such a defense: Upjohn had "fraudulent[ly] conceal[ed]" Halcion's "dangerous propensities"; they "first learned," and were able to learn, "of such dangerous propensities on or about October 2, 1991," when, through Leo, they "discovered such propensities in accounts by the news media."

Upjohn answered the operative complaint. It denied all of the Norgarts' allegations. It also asserted numerous affirmative defenses, including one based on the statute of limitations.

Subsequently, Upjohn moved the superior court for summary judgment against the operative complaint, claiming that there was no triable issue of material fact and that it was entitled to judgment as a matter of law based on the statute of limitations.

Upjohn had previously made a similar summary judgment motion against a previous but similar complaint, in which the Norgarts had brought causes of action for wrongful death, but had not yet brought any "survival" causes of action for fraud.

In support of its previous summary judgment motion, Upjohn had argued that, under the undisputed facts, the Norgarts had to, but did not, bring their causes of action for wrongful death within one year of accrual, which occurred, under the general rule, at Kristi's death on October 16, 1985, or, under the discovery rule, at some date prior to mid-1986, when they came at least to suspect, or have reason to suspect, a factual basis for the elements of these claims by at least suspecting, or having reason to suspect, that someone had done her some wrong to cause her death.

Considered in light of the evidence from which they were drawn, including, notably, a deposition by Leo, the facts that Upjohn had stated were undisputed for purposes of its previous summary judgment motion--and that the Norgarts would subsequently admit to be such--were in substance as follows:

In April 1984, Kristi attempted suicide. Later that month, she entered into the care of Donald T. Apostle, M.D., a psychiatrist, who had originally been named as a defendant but was no longer. She was treated by Dr. Apostle for manic-depressive illness (now bipolar disorder), or perhaps more accurately depression, connected in part to her relationship with the Norgarts, her parents, and Steven, her husband, and was prescribed Xanax, an anti-anxiety agent, for its management. In November 1984, she entered into the care of Gary A. Greensweig, D.O., a general practitioner, who also had originally been named as a defendant but was no longer. In May 1985, she was treated by Dr. Greensweig, and was prescribed Halcion, an hypnotic, evidently for insomnia. Later that month, she left Dr. Apostle's care. In August 1985, she was prescribed Halcion by Dr. Greensweig for a second time. At the end of that month, she again attempted suicide, this time by overdose of unidentified prescription drugs. In September 1985, she was prescribed Halcion by Dr. Greensweig for a third time. On October 10, 1985, she was treated by Dr. Greensweig for a bruise to her left calf, which she had suffered in a physical altercation with Steven, and was prescribed Darvocet-N, a mild narcotic analgesic, evidently for pain. On October 15, 1985, she was prescribed Halcion by Dr. Greensweig for a fourth time and Darvocet-N for a second time. On October 16, 1985, descending into a severe depression, she committed suicide by overdose of prescription drugs; found near the bed in which her body was discovered were four empty drug bottles, two of Darvocet-N, which was determined to be the toxic agent, and two also of Halcion.

On October 17, 1985, having been informed of Kristi's death, the Norgarts arrived from out of state. Straightway, Leo undertook an investigation into Kristi's death and its cause. He would apparently keep Phyllis apprised of all from beginning to end. "At or around the time of Kristi's death," as he himself admitted, he "thought" that "there had to be some reason, other than just herself, that would cause her to commit suicide," that "there had to be some other force or action upon her that caused her to commit suicide . . . ." In his investigation, he soon learned of the facts related above by means including interviewing persons such as Dr. Apostle and Dr. Greensweig, and reviewing documents such as police and coroner's reports relating to Kristi's death and the certificate of death itself. In this matter, he involved Scott Foster, an attorney who was handling the probate of her estate.

Prior to mid-1986, Leo had formed a belief, as he himself admitted, that an "individual or individuals . . . did something wrong to [Kristi] that caused her to take her own life," and had begun to contemplate bringing an action for wrongful death. The "individual or individuals" in question, as he further admitted, were her husband Steven, for what he suspected was physical abuse, and her psychiatrist Dr. Apostle, for what he suspected was professional negligence. Also prior to mid-1986, he communicated with Attorney Foster in the premises;...

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