Metropolitan News-Enterprise


Thursday, February 19, 2004


Page 1


California Supreme Court to Revisit Delayed Discovery Rule

Justices Agree to Resolve Conflict Over When Products Liability Claim Is Triggered


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday agreed to decide whether a products liability action against the manufacturer of a surgical tool, filed more than 2 1/2 years after the surgery, may have been timely based on the plaintiff’s claim that the facts supporting liability were not discovered until the plaintiff took discovery in a malpractice suit against the surgeon.

The justices, at their weekly conference, voted unanimously to review the Nov. 4 ruling of the Fifth District Court of Appeal in Fox v. Ethicon Endo-Surgical, Inc. (2003) 112 Cal.App.4th 1572.

The Fifth District panel held that the “bright line rule of imputed simultaneous discovery of causes of action” set forth by the Fourth District in Bristol-Myers Squibb Co. v. Superior  Court (1995) 32 Cal.App.4th 959 is not good law and that the plaintiff, Brandi Fox, “should be given an opportunity to allege facts explaining why she did not have reason to discover earlier the factual basis of her products liability claim.”

Fox sued her surgeon, claiming that his negligence caused a perforation of her small intestine and subsequent complications. Three months after the doctor gave his deposition, in which he testified the perforation may have been caused by a malfunctioning stapler, she amended her complaint to add a complaint against the stapler manufacturer.

Fresno Superior Court Judge Stephen Kane sustained the demurrer, saying the amendment was untimely under Bristol-Myers Squibb and Norgart v. Upjohn Co. (1999) 21 Cal.4th 383. Kane held that once the plaintiff knew or had reason to know that she was a victim of negligence, the statute of limitations began to run against all defendants.

Vartabedian Opinion

But the Court of Appeal, in an opinion by Justice Steven Vartabedian, said that Fox was entitled to attempt to prove her claims that she was never told, and never had reason to believe, that an instrument malfunction may have been the cause of the perforation, prior to the doctor’s deposition being taken. If that is the case, the justice said, her claim against the manufacturer is timely under the delayed discovery rule.

Vartabedian rejected the suggestion that Norgart, in which the high court held that a suit by the family of a suicide victim, six years after her death, against the maker of the controversial sleep drug Halcion was barred, forecloses Fox’s claim. The Norgart court, while rejecting the contention that the action was timely because the relationship between the drug and the death wasn’t readily apparent earlier, neither endorsed nor rejected the Bristol-Myers Squibb holding, Vartabedian said.

The problem with the holding, the justice elaborated, is that it requires “as a rule of law that a plaintiff exercise such a high degree of suspicion, without regard to the actual facts known or available to the plaintiff (and perhaps in contradiction to those facts)” and “disconnects the discovery rule from the facts of the case.”

In other action at yesterday’s conference, the justices denied a publication request by the Commission on State Mandates. The commission sought publication of a Dec. 1 opinion of this district’s Court of Appeal rejecting San Bernardino County’s challenge to a state law eliminating the county’s authority to collect an administrative fee from local school districts.

Div. Seven Ruling

Div. Seven, in an opinion by Presiding Justice Dennis Perluss, affirmed rulings by the commission and Los Angeles Superior Court Judge Dzintra Janavs that the resulting increase in the county’s costs of collecting property taxes did not constitute an unfunded mandate that would trigger a constitutional obligation on the part of the state to make up the lost revenue.

The case is County of San Bernardino v. Commission on State Mandates, B163801.

The court also issued an unusual order requiring two San Francisco lawyers to show cause why they should not be held in contempt for failing to appear for oral argument last week.

According to docket entries on the state courts’ website, Raul V. Aguilar and Allen J. Kent of Aguilar & Sebastinelli did not appear for argument in Aguilar v. Lerner, S099667, but Aguilar, a party to the case, sent a letter to the court the next day explaining that Kent was no longer representing him and that he had assigned Domonic Flamiano, also of Aguilar & Sebastinelli, to represent him.

That apparently did not satisfy the court, which noted that Kent was listed at all times prior to the argument as the attorney who would argue the case for Aguilar. The case concerns issues relating to attorney fee arbitrations, including whether a client may be bound by a pre-dispute agreement making fee arbitration binding and whether a client waived arbitration by filing a legal malpractice suit.


Copyright 2004, Metropolitan News Company