April 10, 1998
California's One Year Statute of Limitations: Extended until Suspicion of Injury
By Richard Alexander, Esq

    California's one-year statute of limitations in personal injury cases begin to run upon the date of the injury or when a person discovers an injury has occurred.
     Anyone with a valid, enforceable and collectible claim, who files one day after the one year statute of limitations period, is facing dismissal of an outlawed claim.
     The discovery rule provides that the limitations period commences when the plaintiff has or should reasonably have knowledge of the injury and its cause and a suspicion of wrongdoing.
     Suspicion is examined from an objective standpoint; the issue is what a reasonable person would know or suspect under the facts of your case.
     Under California law whenever there is knowledge of an injury, and facts which would cause a reasonable person to merely suspect negligence on the part of someone, the statutory clock begins ticking, even when an informed professionals render contrary opinions or the plaintiff truly has no personal appreciation of the fact that he/she has been injured by someone's wrongful conduct.
     Two California Courts of Appeal concerning the claims of breast implant recipients' against the implant manufacturers demonstrate how little suspicion is necessary to cause the statute of limitations clock to begin running and the importance to consult an experienced lawyer whenever an injury has been suffered to carefully calculate when the statute of limitations begins to run.
     In these two cases, the courts held that the plaintiffs should have suspected that their injuries were caused by the breast implants more than one year prior to filing suit, despite each plaintiff's claims that she did not have such a suspicion, but more importantly even though one plaintiff was told by her doctor that her implants were safe.
     The key cases are Goldrich v. Natural Y Surgical Specialties (1994) 25 Cal. App. 4th 772, 31 Cal. Rptr. 2d 162 and Bristol-Myers Squibb Company v. Superior Court (1995) 32 Cal. App. 4th 959, 38 Cal. Rptr. 2d 298.
     The starting point for an understanding of delayed discovery is the California Supreme Court's decision in Jolly v. Eli Lilly and Company (1988) 44 Cal. 3d 1103, 245 Cal. Rptr. 658, which is the basis for the Goldrich and Bristol-Myers Squibb decisions.
     In Jolly, a DES case, the court stated that pursuant to California's discovery rule, " the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause . . . . A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her." At 1109.
     In rejecting the view that discovery requires actual or imputed knowledge of facts establishing wrongful conduct, the court held that, "the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her . . . [T]he limitations period begins once the plaintiff "has notice or information of circumstances to put a reasonable person on inquiry [citations omitted].
     A plaintiff need not be aware of the specific facts necessary to establish the claim. . . Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights.
     So long as suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her." 44 Cal. 3d at 1110.
     Under California law a suspicion of wrongdoing, coupled with knowledge of the harm and its cause, will commence the limitations period and once that occurs, a complaint must be filed within one year.
     The facts supporting the court's determination that the plaintiff in Jolly had a suspicion of wrongdoing were contained in her deposition: "Plaintiff stated that as early as 1978 she was interested in 'obtaining more information' about DES because she wanted to 'make a claim'; she felt that someone had done something wrong to her concerning DES, that it was a defective drug and that she should be compensated." At 1112.
     Plaintiff did not bring her suit until early 1991. Under these facts, summary judgment on the statute of limitations issue was proper as a matter of law. In other words, because Jolly knew something in 1978, she had to sue by 1979.
     She filed in 1991 and was twelve years late. The Jolly principle was applied in Goldrich , 25 Cal. App. 4th 772, to bar the plaintiff's claims on statute of limitations grounds. Mrs. Goldrich underwent her first breast reconstructive surgery with implantation of polyurethane foam implants in July 1983, and had an immediate severe local reaction.
     She had both implants replaced in November 1983, and in December of that year had an implant extruding from a nipple graft.
     Over the next year, she consulted with three specialists who recommended the removal of her implants, and had four subsequent surgeries, culminating with the removal of both implants in December 1984.
     At that time, the surgeon noted that her right implant was ruptured. Mrs. Goldrich sued Cox-Uphoff and other defendants in July 1986. The court in Goldrich held that summary judgment was properly granted on the ground that Mrs. Goldrich's claim was time-barred.
     The court stated that by December 1984, Mrs. Goldrich "must have suspected or certainly should have suspected that she had been harmed and she must have suspected or certainly should have suspected that her harm was caused by the implants." Id at 780.
     The court also rejected the suggestion that, on these facts, she did not have a very strong suspicion of wrongdoing by December 1984.
     The court also rejected Mrs. Goldrich's argument that the trial could have erred in considering her knowledge (actual or imputed) of the cause of the injury, and should have instead focused on when she acquired a suspicion of wrongdoing.
     Dismissing any "semantical differences" between the two as immaterial, the court concluded that by December 1984, Mrs. Goldrich suspected or reasonably should have suspected that her injury was caused by problems with her implants.
     The court also rejected Mrs. Goldrich's claims that she believed that her problems were due to her body rejecting the implants rather than problems with the implants themselves.
     Even though she had not been warned about the possibility of a defective implant (she had been told that they would last a lifetime), the court stated that a "reasonable woman would have been suspicious about the implants." Id at 780.
     The fact that three breast implant specialists recommended permanent removal of her implants, the court observed, is itself sufficient to make a reasonable person suspicious.
     This was all that was required to commence the running of her statute. Under California law if she had filed by December 1985 she would have been able to go forward with her case.
     Her July 1986 filing was seven months too late and her claims were outlawed. In Bristol-Myers Squibb Company v. Superior Court (1995) 32 Cal. App. 4th 959, 38 Cal. Rptr. 2d 298 the court held that when a plaintiff has knowledge of injury and a suspicion of wrongdoing, the statute of limitations begins to run as to all potential defendants, whether or not they are known to plaintiff.
     Here the plaintiff had silicone gel breast implants implanted in 1976. Following a severe injury to her chest area in 1982, she noticed that her right breast appeared smaller and that she had a lump under her right arm.
     When her plastic surgeon told her that the lump could not be silicone, she was dissatisfied and sought a second opinion. Shortly thereafter, a second doctor confirmed her suspicions that the implant was ruptured and that the lump in her arm was silicone.
     Her surgeon was unable to remove all of the migrated silicone. In 1984, Ms. Jones had additional arm problems including ulcerations, which, according to one doctor, were caused by silicone migration.
     Ms. Jones had filed a complaint against the individual who had injured her, and in 1983 had consulted attorneys regarding possible malpractice claims against her plastic surgeon.
     She did not file suit against the implant manufacturer until April 1991. The Bristol-Myers Squibb court cited Jolly and Goldrich in holding that Ms. Jones' statute of limitation had been triggered by no later than 1984 or 1985.
     The Jolly test was set forth as follows: (1) knowledge of injury, and (2) knowledge of facts creating, or which in a reasonable person would create, a suspicion of negligence on the part of someone. At 965. By 1982, Ms. Jones had knowledge of the rupture of her implant and migration of silicone (knowledge of injury).
     She had considered a malpractice action against her doctor in 1983 (suspicion of wrongdoing). At that time, she had an obligation to pursue her legal remedy since "as a matter of law the plaintiff knew of her damage and injury and knew or at least actually suspected that someone had been negligent." At 966.
     The court also cited examples of cases in which it could not be held, as a matter of law, that the plaintiff should reasonably have suspected wrongdoing.
     For example, the court stated that the mere fact that an operation does not produce hoped-for results does not signify negligence and will not cause commencement of the statutory period. Unjian v. Betman (1989) 208 Cal. App. 3d 881, 256 Cal. Rptr. 478.
    In addition, the statute will not begin running in cases where there is a logical explanation for the injury which does not indicate negligence on anyone's part. Hills v. Aronsohn (1984) 152 Cal. App. 3d 753, 199 Cal. Rptr. 816 (nodes in breast implants were reasonably explained to plaintiff as the occasional non-negligent results of silicone injections).
     In any event, by 1984 or 1985 Ms. Jones was suffering from ulcerations in her arm caused by silicone; by this time, she was certainly aware of facts requiring the commencement of an action.
     According to the court, Ms. Jones' statute of limitations began to run in 1984 or 1985, with respect to her malpractice action as well as her action against the implant manufacturer.
     Jones argued that while she may have had cause to sue her doctor, she had no reason to believe that she and an action against the implant manufacturer. She had been told and believed that the silicone was biological inert and felt that her injuries were caused by the person who battered her or by her physician.
     The court rejected these arguments, holding that when a plaintiff has cause to sue based on knowledge or suspicion of negligence the statute starts to run as to all potential defendants.
     All that is required is an objective suspicion of negligence; it is not necessary that the plaintiff be able to identify the negligent party.
     Under California law whenever there is knowledge of an injury, and facts which would cause a reasonable person to merely suspect negligence on the part of someone, the statutory clock begins ticking, even when an informed professional opines to the contrary.

[Editor's Note: Richard Alexander is recognized by The State Bar of California as a certified specialist in civil trial law and was first certified as a civil trial lawyer by the National Board of Trial Advocacy in 1980. Emphasizing working relationships with clients has led to an exceptional record of success. He has served as a member of the Board of Governors of The State Bar of California, President of the Santa Clara County Bar Association and the Board of Governors of Consumer Attorneys of California. He is a founding member of the National Association of Consumer Advocates, and heads Alexander, Hawes & Audet, LLP.]