Stanford Law School - Robert Crown Law Library

Filed 5/9/05

IN THE SUPREME COURT OF CALIFORNIA

BRANDI R. FOX,
Plaintiff and Appellant,
S121173
v.
) Ct.App.
5
F041148
ETHICON ENDO-SURGERY, INC.,
) Fresno
County
Defendant and Respondent.
Super. Ct. No. 0654613-9

Plaintiff Brandi R. Fox filed a medical malpractice action after gastric
bypass surgery performed on her resulted in severe complications. In the course
of discovery, Fox received information that a medical device used during the
surgery may have malfunctioned, causing her injury. Fox then amended her
complaint to add a products liability cause of action against the manufacturer of
the device, Ethicon Endo-Surgery, Inc. (Ethicon). Ethicon filed a demurrer raising
a statute of limitations defense, to which plaintiff responded by relying upon the
delayed discovery rule most recently discussed by this court in Norgart v. Upjohn
Co. (1999) 21 Cal.4th 383 (Norgart).
Plaintiff alleges that she could not, with reasonable investigation, have
discovered earlier that the medical device might have caused her injury. We
granted review to determine whether such an allegation is sufficient to withstand
demurrer, or whether we should adopt the bright-line rule announced in Bristol-
Myers Squibb Co. v. Superior Court (1995) 32 Cal.App.4th 959, 966 (Bristol-
Myers Squibb), that “[w]hen a plaintiff has cause to sue based on knowledge or

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suspicion of negligence the statute [of limitations] starts to run as to all potential
defendants.”
We conclude that, under the delayed discovery rule, a cause of action
accrues and the statute of limitations begins to run when the plaintiff has reason to
suspect an injury and some wrongful cause, unless the plaintiff pleads and proves
that a reasonable investigation at that time would not have revealed a factual basis
for that particular cause of action. In that case, the statute of limitations for that
cause of action will be tolled until such time as a reasonable investigation would
have revealed its factual basis. We disapprove the decision in Bristol-Myers
Squibb v. Superior Court, supra, 32 Cal.App.4th 959, to the extent that it holds to
the contrary.
I. FACTS AND PROCEDURAL HISTORY
On April 10, 1999, respondent Brandi R. Fox underwent Roux-en-Y gastric
bypass surgery and post-surgical treatment.1 The operation was performed by Dr.
Herbert Gladen. During the surgery, Fox was under general anesthesia and
unconscious. Fox went home following the surgery, but returned soon after the
surgery because she felt ill.
Fox’s condition worsened, moving Dr. Gladen to perform exploratory
surgery a few days after the gastric bypass operation. The exploratory surgery
revealed a perforation at the stapled closure of the small intestine, which caused

1
Gastric bypass surgery, used to treat morbid obesity, makes the stomach
smaller and allows food to bypass part of the small intestine. In a Roux-en-Y
gastric bypass, the stomach is made smaller by creating a small pouch at the top of
the stomach with surgical staples or a plastic band. The smaller portion of the
stomach is connected directly to the middle portion of the small intestine
(jejunum), bypassing the rest of the stomach and the upper portion of the small
intestine (duodenum). (Nat. Inst. of Diabetes and Digestive and Kidney Diseases,
Gastrointestinal Surgery for Severe Obesity (2001) NIH Pub. No. 01-4006
<http://win.niddk.nih.gov/publications/gastric.htm> [as of May 5, 2005].)
2

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fluid to leak into Fox’s abdominal cavity. Dr. Gladen attempted to seal the
perforation. In his operative report for the exploratory surgery, Dr. Gladen failed
to identify a cause for the perforation. Fox required additional medical care and
remained hospitalized until March 4, 2000.
On April 6, 2000, Fox served Dr. Gladen, and the hospital and medical
center in Fresno where the surgery and subsequent care took place, with a notice
of intent to commence action pursuant to Code of Civil Procedure section 364.
Fox filed a complaint for medical malpractice against the doctor and the treating
hospitals in Fresno County Superior Court on June 28, 2000. In her complaint,
Fox claimed that “[d]efendants lacked the necessary knowledge and skill to
properly care for [her] condition and were negligent and unskillful in the
diagnosis, treatment, and prescription procedures utilized in treating [her]
condition. The negligence claimed is for negligently performing pre-surgical,
surgical, and post-surgical care so as to cause injuries and damages to . . . Fox.”
Fox named as defendants Dr. Gladen, the hospital and medical center, and
Does 1 to 100, inclusive. The complaint alleged that “the defendants named
herein as DOES 1 through 100, inclusive, were the agents, servants, and
employees of each of the remaining defendants, and in doing the things hereinafter
alleged, were acting within the course and scope of their authority as such agents,
servants, or employees, and with the permission and consent of their codefendants.”
When Fox deposed Dr. Gladen on August 13, 2001, the doctor testified that
he had discovered a leak at the stapled closure of Fox’s small intestine during the
exploratory surgery. He further noted that the bowel had been stapled with an
“Ethicon GIA-type stapler,” that the hospital had furnished the stapler, and that he
had found on previous occasions that such a stapler had caused postsurgery leaks.
Accordingly, on November 28, 2001, Fox filed a first amended complaint
adding the manufacturer of the stapler, Ethicon, as a named defendant. In the first
amended complaint, Fox asserted a products liability cause of action against
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Ethicon, alleging that she was injured by an “Ethicon GIA-type stapler” on or
about April 10, 1999. Fox used a Judicial Council form for products liability
causes of action, specifying counts for strict liability relating to the design,
manufacture, and assembly of the stapler, negligence, and breach of implied
warranty. The first amended complaint also alleged that Fox “did not discover,
nor suspect, nor was there any means through which her reasonable diligence
would have revealed, or through which she would have suspected the Ethicon
GIA-type stapler as a cause of her injury until the deposition of [Dr. Gladen] was
taken on August 13, 2001.”
Ethicon demurred to the first amended complaint, contending that the
products liability claim was time-barred by the one-year statute of limitations
under Code of Civil Procedure former section 340, former subdivision 3. (Stats.
1982, ch. 517, § 97, p. 2334; see fn. 3, post.) In opposition, Fox noted that she
had no knowledge that the gastric bypass surgery would involve the use of a
stapler or any similar device.
Fox further stated that she never learned during the postsurgical care
following the gastric bypass operation that the stapler had malfunctioned or could
have caused the leakage and other problems, and that she first discovered the
possibility of a stapler malfunction when her counsel notified her of Dr. Gladen’s
deposition testimony. Finally, Fox offered to file a second amended complaint to
clarify the facts supporting her assertion that she had no reason to suspect the
stapler until after Dr. Gladen’s testimony, and that no reasonable person would
have suspected that the Ethicon product had malfunctioned.
Fox’s attorney also filed a declaration stating that neither the operative
report nor the reparative operative report indicated that the stapler had
malfunctioned or misfired. The declaration also stated that Dr. Gladen’s
testimony was taken during the normal course of discovery in a medical
malpractice lawsuit, Fox was reasonably diligent in pursuing the lawsuit and
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discovery, and Fox could allege that Dr. Gladen never mentioned a stapler
malfunction or defect during the entire course of his postsurgical care.
On June 17, 2002, the superior court sustained Ethicon’s demurrer to the
products liability cause of action without leave to amend, relying upon Norgart,
supra, 21 Cal.4th 383, and Bristol-Myers Squibb, supra, 32 Cal.App.4th 959, to
conclude that the statute of limitations barred the products liability cause of action.
The superior court stated that when a plaintiff sues based on knowledge or
suspicion of negligence, including medical malpractice as in Fox’s case, the
statute of limitations begins to run as to all defendants, including manufacturers
possibly liable under products liability theories. The superior court also stated that
Fox failed to demonstrate that amending the complaint could “overcome the
limitations defense.” Fox timely appealed from the superior court’s order
sustaining Ethicon’s demurrer as to the products liability cause of action.
The Court of Appeal reversed the superior court’s order and remanded with
directions to grant Fox leave to amend to allege facts explaining why she did not
have reason to discover earlier the factual basis of her products liability claim. In
so ruling, the Court of Appeal held that Bristol-Myers Squibb’s “bright line rule of
imputed simultaneous discovery of causes of action” did not apply. Ethicon
petitioned this court, and we granted review.
II. DISCUSSION
This case requires us to address once again the proper application of a
statute of limitations. (See Gutierrez v. Mofid (1985) 39 Cal.3d 892; Jolly v. Eli
Lilly & Co. (1988) 44 Cal.3d 1103 (Jolly); Bernson v. Browning-Ferris Industries
(1994) 7 Cal.4th 926 (Bernson); Norgart, supra, 21 Cal.4th at p. 395.)
“Statute of limitations” is the collective term applied to acts or parts of acts
that prescribe the periods beyond which a plaintiff may not bring a cause of action.
(3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 405, p. 509; accord, Norgart,
supra, 21 Cal.4th at p. 395.) There are several policies underlying such statutes.
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One purpose is to give defendants reasonable repose, thereby protecting parties
from “defending stale claims, where factual obscurity through the loss of time,
memory or supporting documentation may present unfair handicaps.” (Bernson,
supra, 7 Cal.4th at p. 935; Jolly, supra, 44 Cal.3d at p. 1112; see also Davies v.
Krasna (1975) 14 Cal.3d 502.) A statute of limitations also stimulates plaintiffs
to pursue their claims diligently. (Norgart, supra, 21 Cal.4th at p. 395; Jolly,
supra, 44 Cal.3d at p. 1112; see, e.g., Bernson, supra, 7 Cal.4th at p. 935.) A
countervailing factor, of course, is the policy favoring disposition of cases on the
merits rather than on procedural grounds. (Norgart, supra, 21 Cal.4th at p. 396;
Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 152.)
A plaintiff must bring a claim within the limitations period after accrual of
the cause of action. (Code Civ. Proc., § 312 [“Civil actions, without exception,
can only be commenced within the periods prescribed in this title, after the cause
of action shall have accrued”]; Norgart, supra, 21 Cal.4th at p. 397.) In other
words, statutes of limitation do not begin to run until a cause of action accrues.
(Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 487.)
Generally speaking, a cause of action accrues at “the time when the cause
of action is complete with all of its elements.” (Norgart, supra, 21 Cal.4th at p.
397; see Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176,
187 (Neel).) An important exception to the general rule of accrual 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. (Norgart, supra, 21
Cal.4th at p. 397; Neel, supra, 6 Cal.3d at p. 187.)
A plaintiff has reason to discover a cause of action when he or she “has
reason at least to suspect a factual basis for its elements.” (Norgart, supra, 21
Cal.4th at p. 398, citing Jolly, supra, 44 Cal.3d at p. 1110; see also Gutierrez v.
Mofid, supra, 39 Cal.3d at p. 897 [“the uniform California rule is that a limitations
period dependent on discovery of the cause of action begins to run no later than
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the time the plaintiff learns, or should have learned, the facts essential to his
claim”].) Under the discovery rule, suspicion of one or more of the elements of a
cause of action, coupled with knowledge of any remaining elements, will
generally trigger the statute of limitations period. (Norgart, supra, 21 Cal.4th at p.
398, fn. 3; Jolly, supra, 44 Cal.3d at p. 1112.) Norgart explained that by
discussing the discovery rule in terms of a plaintiff’s suspicion of “elements” of a
cause of action, it was referring to the “generic” elements of wrongdoing,
causation, and harm. (Norgart, supra, 21 Cal.4th at p. 397.) In so using the term
“elements,” we do not take a hypertechnical approach to the application of the
discovery rule. Rather than examining whether the plaintiffs suspect facts
supporting each specific legal element of a particular cause of action, we look to
whether the plaintiffs have reason to at least suspect that a type of wrongdoing has
injured them.
The discovery rule, as described in Bernson, allows accrual of the cause of
action even if the plaintiff does not have reason to suspect the defendant’s identity.
(See Bernson, supra, 7 Cal.4th at p. 932.) The discovery rule does not delay accrual
in that situation because the identity of the defendant is not an element of a cause of
action. (See Norgart, supra, 21 Cal.4th at p. 399; Bernson, supra, 7 Cal.4th at p.
932.) As the court reasoned in Norgart, “[i]t follows that failure to discover, or have
reason to discover, the identity of the defendant does not postpone the accrual of a
cause of action, whereas a like failure concerning the cause of action itself does.”
(Norgart, supra, 21 Cal.4th at p. 399.) In Norgart, we distinguished between
ignorance of the identity of the defendant and ignorance of the cause of action based
on “ ‘the commonsense assumption that once the plaintiff is aware of’ the latter, he
‘normally’ has ‘sufficient opportunity,’ within the ‘applicable limitations period,’ ‘to
discover the identity’ of the former.” (Norgart, supra, 21 Cal.4th at p. 399, quoting
Bernson, supra, 7 Cal.4th at p. 932.)
The discovery rule only delays accrual until the plaintiff has, or should
have, inquiry notice of the cause of action. The discovery rule does not encourage
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dilatory tactics because plaintiffs are charged with presumptive knowledge of an
injury2 if they have “ ‘ “information of circumstances to put [them] on inquiry” ’ ”
or if they have “ ‘ “the opportunity to obtain knowledge from sources open to
[their] investigation.” ’ ” (Gutierrez v. Mofid, supra, 39 Cal.3d at pp. 896-897,
quoting Sanchez v. South Hoover Hospital, supra, 18 Cal.3d at p. 101.) In other
words, plaintiffs are required to conduct a reasonable investigation after becoming
aware of an injury, and are charged with knowledge of the information that would
have been revealed by such an investigation.
The Legislature, in codifying the discovery rule, has also required plaintiffs
to pursue their claims diligently by making accrual of a cause of action contingent
on when a party discovered or should have discovered that his or her injury had a
wrongful cause. (E.g., Code Civ. Proc., §§ 340.1, subd. (a) [“within three years of
the date the plaintiff discovers or reasonably should have discovered”], 340.15,
subd. (a)(2) [“[w]ithin three years from the date the plaintiff discovers or
reasonably should have discovered”], 340.2, subd. (a)(2) [“[w]ithin one year after
the date the plaintiff either knew, or through the exercise of reasonable diligence
should have known”], 340.5 [“one year after the plaintiff discovers, or through the
use of reasonable diligence should have discovered”].) This policy of charging
plaintiffs with presumptive knowledge of the wrongful cause of an injury is
consistent with our general policy encouraging plaintiffs to pursue their claims
diligently. (Norgart, supra, 21 Cal.4th at p. 395.)

In order to rely on the discovery rule for delayed accrual of a cause of
action, “[a] plaintiff whose complaint shows on its face that his claim would be

2
At common law, the term “injury,” as used in determining the date of
accrual of a cause of action, “means both ‘a person’s physical condition and its
“negligent cause.” ’ ” (Gutierrez v. Mofid, supra, 39 Cal.3d at p. 896, quoting
Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 99.) Thus, physical injury
alone is often insufficient to trigger the statute of limitations.
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barred without the benefit of the discovery rule must specifically plead facts to
show (1) the time and manner of discovery and (2) the inability to have made
earlier discovery despite reasonable diligence.” (McKelvey v. Boeing North
American, Inc. (1999) 74 Cal.App.4th 151, 160.) In assessing the sufficiency of
the allegations of delayed discovery, the court places the burden on the plaintiff to
“show diligence”; “conclusory allegations will not withstand demurrer.” (Ibid.)
Simply put, in order to employ the discovery rule to delay accrual of a
cause of action, a potential plaintiff who suspects that an injury has been
wrongfully caused must conduct a reasonable investigation of all potential causes
of that injury. If such an investigation would have disclosed a factual basis for a
cause of action, the statute of limitations begins to run on that cause of action
when the investigation would have brought such information to light. In order to
adequately allege facts supporting a theory of delayed discovery, the plaintiff must
plead that, despite diligent investigation of the circumstances of the injury, he or
she could not have reasonably discovered facts supporting the cause of action
within the applicable statute of limitations period.
Under the statute of limitations applicable to this case, a plaintiff must
bring a cause of action for products liability within one year of accrual. (Code
Civ. Proc., § 340, former subd. 3.)3 Products liability claims brought under either
negligence or strict liability theories are subject to delayed accrual under the
discovery rule. (See Fireman’s Fund Ins. Co. v. Sparks Const., Inc. (2004) 114
Cal.App.4th 1135, 1150.) Normally, the general rule for defining the accrual of a

3
At present, the statute of limitations for an action for injury to an individual
caused by the wrongful act or neglect of another must be commenced within two
years from the date of accrual. (Code Civ. Proc., § 335.1.) This change was
effected in 2002, when the Legislature found the one-year limitations period of
section 340, former subdivision 3 “unduly short” and adopted a two-year period
“to ensure fairness to all parties.” (Stats. 2002, ch. 448, § 1.)
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cause of action should govern a cause of action for products liability. (See
Norgart, supra, 21 Cal.4th at p. 404.) For both negligence and strict liability
products liability claims, the last element to occur is generally, as a practical
matter, the injury to the future plaintiff.
Fox alleges that she was injured by an “Ethicon GIA-type stapler” on April
10, 1999. She timely filed her medical malpractice claim on June 28, 2000.4 Her
cause of action for products liability was alleged for the first time in the first
amended complaint filed on November 28, 2001, more than one year after her
injury. Accordingly, Fox’s products liability action would only be timely if the
discovery rule acted in some fashion to delay accrual of the cause of action.5
The Court of Appeal below applied the discovery rule to Fox’s products
liability claims against Ethicon, and ordered that the trial court judgment

4
The one-year statute of limitations period for a medical malpractice action
is set forth separately in section 340.5 of the Code of Civil Procedure. The
limitations period prescribed by section 340.5 may be extended by 90 days under
Code of Civil Procedure section 364, which provides in pertinent part: “(a) No
action based upon the health care provider’s professional negligence may be
commenced unless the defendant has been given at least 90 days’ prior notice of
the intention to commence the action. [¶] . . . [¶] (d) If the notice is served within
90 days of the expiration of the applicable statute of limitations, the time for the
commencement of the action shall be extended 90 days from the service of the
notice.”
5
Even had Fox filed her products liability claim against Ethicon simultaneously
with her medical malpractice claim on June 28, 2000, the claim would likely still have
been untimely absent an application of the delayed discovery rule. Fox filed her
medical malpractice claim slightly more than one year after her injury on April 6,
2000, due to the abovementioned 90-day extension afforded medical malpractice
claims by Code of Civil Procedure section 364, subdivision (d). However, the 90-day
extension of the limitations period provided by section 364, subdivision (d) is limited
to claims “based upon” professional negligence (see Preferred Risk Mutual Ins. Co. v.
Reiswig (1999) 21 Cal.4th 208, 218; Noble v. Superior Court (1987) 191 Cal.App.3d
1189, 1192-1195), and would therefore not extend the limitations period for a
products liability claim.

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sustaining the demurrer without leave to amend be reversed and that the case be
remanded to the trial court with directions to enter an order sustaining the
demurrer with leave to amend the cause of action for products liability.
“On appeal from a judgment dismissing an action after sustaining a
demurrer without leave to amend, the reviewing court gives the complaint a
reasonable interpretation, and treats the demurrer as admitting all material facts
properly pleaded.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-
967 (Aubry); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “[I]t is error for a . . .
court to sustain a demurrer when the plaintiff has stated a cause of action under
any possible legal theory.” (Aubry, supra, 2 Cal.4th at p. 967, citing Barquis v.
Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.) “[I]t is [also] an abuse of
discretion to sustain a demurrer without leave to amend if the plaintiff shows there
is a reasonable possibility [that the] defect . . . can be cured by amendment.”
(Aubry, supra, 2 Cal.4th at p. 967, citing Blank v. Kirwan, supra, 39 Cal.3d at p.
318.)
This procedural posture differs from that of our prior cases discussing
delayed accrual and the discovery rule. Resolution of the statute of limitations
issue is normally a question of fact. (Jolly, supra, 44 Cal.3d at p. 1112.) Norgart,
Jolly, Gutierrez, and Sanchez involved appeals from summary judgments on the
statute of limitations defense, and we therefore examined those cases in light of
the undisputed material evidence presented to the court. (Code Civ. Proc., § 437c,
subd. (c); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [a
triable issue of material fact exists only if the evidence would allow a reasonable
trier of fact to find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof].) Thus, in our prior cases
discussing the discovery rule, we were presented with a more fully developed
factual basis for determining when and how the plaintiff discovered an injury,
whether the plaintiff conducted a reasonable investigation, when such an
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investigation would have brought to light the factual basis for the cause of action
for which the plaintiff sought delayed accrual, and whether the plaintiff could have
discovered the factual basis for a cause of action earlier by exercising reasonable
diligence.

Here, however, we must assume to be true Fox’s allegations that she “did
not discover, nor suspect, nor was there any means through which her reasonable
diligence would have revealed, or through which she would have suspected the
Ethicon GIA-type stapler as a cause of her injury until the deposition of [Dr.
Gladen] was taken on August 13, 2001.” In addition, we also consider whether
any defect in the first amended complaint could have been cured by Fox’s
proposed amendment to that complaint, in which she would have stated that she
had no reason to suspect the stapler until after Dr. Gladen’s testimony, and that no
reasonable person would have suspected that the Ethicon product had
malfunctioned.
In order to employ the discovery rule to delay accrual of a cause of action, a
plaintiff must demonstrate that he or she conducted a reasonable investigation of
all potential causes of his or her injury. Fox has only partially met this
requirement by alleging that there was no way “through which her reasonable
diligence would have revealed, or through which she would have suspected the
Ethicon GIA-type stapler as a cause of her injury” until August 13, 2001. Fox’s
first amended complaint was, as the Court of Appeal below held, insufficient to
withstand demurrer because it failed to allege specific facts supporting the
allegations quoted above. The defect in Fox’s first amended complaint, however,
could have been cured by the proposed amendment to that complaint.
Fox’s proposed second amended complaint would have properly alleged
that the products liability cause of action did not accrue until after the stapler
malfunction was revealed during the deposition of Dr. Gladen. The facts that Fox
seeks to add to her complaint support her allegation that she did not suspect, nor
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did she have reason to discover, facts supporting a products liability action against
Ethicon until after deposing Dr. Gladen. Accordingly, we conclude that the Court
of Appeal did not err in ordering the trial court to grant Fox leave to amend her
complaint.6
Ethicon, however, contends that we should adopt the more restrictive
Bristol-Myers Squibb formulation of the discovery rule. Ethicon does not argue
that the Bristol-Myers Squibb formulation is mandated by this court’s decisions, or
that we have expressly or impliedly adopted it, but rather, asserts that the Bristol-
Myers Squibb approach is consistent with our formulation of the discovery rule in
prior cases.
In
Bristol-Myers Squibb, the plaintiff’s silicone breast implant was
ruptured in an altercation in 1982. Two years later, the plaintiff learned that the
implant had ruptured, that silicone was migrating down her arm, and that the
silicone was a cause of physical injury in the form of ulcerations. (Bristol-Myers
Squibb, supra, 32 Cal.App.4th at p. 962.) The plaintiff argued that because she
had been told that silicone was an inert and harmless substance, she did not
actually suspect the manufacturer of the implant of wrongdoing until after reading
a newspaper article in late 1990. (Id. at p. 966.)
The Court of Appeal held that the statute of limitations on the plaintiff’s
products liability cause of action against the manufacturers of her silicone breast
implants began to run when the statute of limitations on her medical malpractice
action commenced. (Bristol-Myers Squibb, supra, at p. 967.) As the court stated:
“[w]hen a plaintiff has cause to sue based on knowledge or suspicion of

6
Although we hold that plaintiff has shown that the defect in the products
liability claim in her first amended complaint could have been cured, we express
no opinion on plaintiff’s ability to prove that she should not have earlier suspected
that her injuries were caused by a defective stapler.
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negligence the statute starts to run as to all potential defendants,” regardless of
whether those defendants are alleged as wrongdoers in a separate but related cause
of action. (Id. at p. 966.)
We have neither approved nor disapproved the Bristol-Myers Squibb
formulation. In Norgart, we declined to address whether the discovery rule
applied by the Court of Appeal in that case was correct,7 or whether the more
restrictive Bristol-Meyers Squibb standard reflected the correct rule. We expressly
declined to resolve “any conflict between the holding of the Court of Appeal in
Bristol-Myers Squibb and the holding of the Court of Appeal below,” holding
instead that the wrongful death cause of action at issue in that case was barred
under either formulation. (Norgart, supra, 21 Cal.4th at p. 406.)
The Court of Appeal in the present case, after concluding that the Bristol-
Myers Squibb formulation was not mandated by our decision in Jolly or adopted
by this court in Norgart, rejected its “bright line rule of imputed simultaneous
discovery of causes of action” and concluded that “the delayed discovery of Fox’s
products liability claim should be analyzed based on the facts and circumstances
relevant to that claim.” In so holding, the Court of Appeal noted the sharp
distinction drawn in our prior case law between a plaintiff’s ignorance of the
identity of the person who committed a suspected wrong and ignorance of the
existence of a cause of action.
In our previous cases addressing the discovery rule, we affirmed that
ignorance of the identity of the defendant does not delay accrual of a cause of

7
In Norgart, the Court of Appeal had held that “under the discovery rule,
when ‘there are potentially multiple’ ‘unrelated’ ‘concurring causes,’ a plaintiff
discovers, or has reason to discover, a cause of action ‘based on a particular act of
wrongdoing’ by a particular defendant, only when he at least suspects, or has
reason to suspect, that act of wrongdoing by that defendant.” (Norgart, supra, 21
Cal.4th at p. 406.)
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action, but that ignorance of a generic element of the cause of action does.
(Norgart, supra, 21 Cal.4th at p. 399.) Such a distinction certainly exists in the
context of a products liability action. Although the identity of the manufacturer-
wrongdoer is not an essential element of a products liability cause of action, and
therefore ignorance of its identity will not delay the running of the statute of
limitations (see Bernson, supra, 7 Cal.4th at p. 932), a plaintiff’s ignorance of
wrongdoing involving a product’s defect will usually delay accrual because such
wrongdoing is essential to that cause of action. (See, e.g. Clark v. Baxter
Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1060 [triable issue of fact existed
as to when plaintiff knew or suspected wrongfulness component of products
liability cause of action].)
It is therefore consistent with our prior applications of the discovery rule to
delay accrual of a products liability cause of action even when a related medical
malpractice claim has already accrued, unless the plaintiff has reason to suspect
that his or her injury resulted from a defective product. More broadly stated, if a
plaintiff’s reasonable and diligent investigation discloses only one kind of
wrongdoing when the injury was actually caused by tortious conduct of a wholly
different sort, the discovery rule postpones accrual of the statute of limitations on
the newly discovered claim.
In both Jolly and Norgart, the plaintiffs suspected or had reason to suspect
that a product had caused their injury. In Jolly, the plaintiff alleged injury caused
by her mother’s ingestion of the synthetic drug estrogen diethylstilbestrol (DES)
while Jolly was in utero. (Jolly, supra, 44 Cal.3d at p. 1107.) The undisputed
evidence in that case showed that, as of 1972, Jolly at least suspected that her
condition was a result of her mother’s ingestion of DES. (Ibid.) Accordingly, we
held that because the plaintiff at least suspected that DES was the cause of her
injuries as of 1972, the statute of limitations began to run at that time, even though
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Jolly was unable to establish the identity of the manufacturer of the DES ingested
by her mother. (Id. at p. 1115.)8
Likewise,
in
Norgart, the daughter of the plaintiffs had committed suicide
in her home by intentionally taking an overdose of prescription drugs, including
Halcion. (Norgart, supra, 21 Cal.4th at p. 390.) We upheld the superior court’s
grant of summary judgment against the plaintiffs, reversing the Court of
Appeal, and finding that the plaintiffs had reason soon after their daughter’s
death to discover their causes of action for wrongful death against Upjohn for
manufacturing and distributing Halcion. (Id. at p. 407.) More specifically, in
Norgart we found that there was no triable issue of material fact and that
Upjohn was entitled to judgment on the statute of limitations defense because the
plaintiffs had reason to discover their cause of action against Upjohn soon
after their daughter’s death when they learned at that time of her depression and
suicide by taking an overdose of prescription drugs, including Halcion.
(Ibid.) The plaintiffs also learned of a possible connection between Halcion and
the suicide, because such connection was disclosed during the plaintiffs’
investigation on the drug’s package insert, which warned of a possible suicide
risk. (Ibid.)
This court’s decisions in Jolly and Norgart each presuppose a situation in
which the factual basis for a claim was reasonably discoverable through diligent
investigation. In both Jolly and Norgart, the court emphasized that the plaintiffs
had ample reason to suspect the basis of their claims. (See Jolly, supra, 44 Cal.3d

8
In Jolly, we also rejected the plaintiff’s contention that the “fact” triggering
accrual of her cause of action was this court’s decision in Sindell v. Abbott
Laboratories (1980) 26 Cal.3d 588, in which we imposed liability on DES
manufacturers even though there was a significant possibility that the
manufacturer of the particular pills ingested by a plaintiff's mother was not a party
to the suit. (Id. at pp. 610-612.)
16

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at p. 1112; Norgart., supra, 21 Cal.4th at p. 407.) Indeed, the application of the
discovery rule as articulated in this opinion would not have yielded a different
result had it been applied in either Jolly or Norgart.
The Court of Appeal in Bristol-Myers Squibb failed to distinguish between
a plaintiff’s ignorance of the identity of a particular defendant—a fact that is not
an element of the underlying cause of action—and ignorance that a product was
the cause of the injury. In Norgart, we made clear that a cause of action accrues
when a plaintiff has reason to discover “a factual basis” for the claim. (Norgart,
supra, 21 Cal.4th at p. 398.) The bright-line rule announced in Bristol-Myers
Squibb, however, applies to all defendants regardless of whether those defendants
are alleged as wrongdoers in the same cause of action, or in a separate but related
cause of action alleging a wholly different kind of tortious wrongdoing. (See
Bristol-Myers Squibb, supra, 32 Cal.App.4th at p. 966.)
As the allegations in this case illustrate, a diligent plaintiff’s investigation
may only disclose an action for one type of tort (e.g., medical malpractice) and
facts supporting an entirely different type of tort action (e.g., products liability)
may, through no fault of the plaintiff, only come to light at a later date. Although
both claims seek to redress the same physical injury to the plaintiff, they are based
on two distinct types of wrongdoing and should be treated separately in that
regard. Accordingly, the Bristol-Myers Squibb rule that all claims arising from an
injury accrue simultaneously, even if based upon distinct types of wrongdoing, is
inconsistent with the generic elements approach prescribed by Norgart. We
therefore agree with the Court of Appeal below that the Bristol-Myers Squibb
17

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formulation is inconsistent with the iteration of the discovery rule announced in
this court’s earlier decisions.9

Ethicon contends that the formulation of the discovery rule used by the
Court of Appeal is contrary to public policy because it would encourage plaintiffs
to “wait for the facts.” We disagree. A plaintiff seeking to utilize the discovery
rule must plead facts to show his or her inability to have discovered the necessary
information earlier despite reasonable diligence. (McKelvey v. Boeing North
American, Inc., supra, 74 Cal.App.4th at p. 160.) This duty to be diligent in
discovering facts that would delay accrual of a cause of action ensures that
plaintiffs who do “wait for the facts” will be unable to successfully avoid
summary judgment against them on statute of limitations grounds.
It would be contrary to public policy to require plaintiffs to file a lawsuit
“at a time when the evidence available to them failed to indicate a cause of
action.” (Leaf v. City of San Mateo (1995) 104 Cal.App.3d 398, 408; see also
Enfield v. Hunt (1979) 91 Cal.App.3d 417, 424.) Were plaintiffs required to file
all causes of action when one cause of action accrued, as they would be under the
Bristol-Myers Squibb rule, they would run the risk of sanctions for filing a cause
of action without any factual support. (Code Civ. Proc., § 128.5; see Finnie v.
Town of Tiburon (1988) 199 Cal.App.3d 1, 14 [holding lack of factual basis for
claim to be grounds for imposing sanctions].) Indeed, it would be difficult to
describe a cause of action filed by a plaintiff, before that plaintiff reasonably
suspects that the cause of action is a meritorious one, as anything but frivolous. At
best, the plaintiff’s cause of action would be subject to demurrer for failure to
specify supporting facts (see, e.g., 4 Witkin, Cal. Procedure (4th ed. 1997),

9
As the Court of Appeal noted below, no published decision of a California
or federal court has applied or cited with approval the Bristol-Myers Squibb
formulation of the discovery rule in the nine years since it was adopted.
18

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Pleading, § 339, p. 436 [requirement of pleading facts]). In sum, the interest of
the courts and of litigants against the filing of potentially meritless claims is a
public policy concern that weighs heavily against the Bristol-Myers Squibb
formulation of the discovery rule.

19

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III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BROWN,
J.
20

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Fox v. Ethicon Endo-Surgical, Inc.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 112 Cal.App.4th 1572
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S121173
Date Filed: May 9, 2005
__________________________________________________________________________________

Court:

Superior
County: Fresno
Judge: Stephen Joseph Kane

__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of David J. St. Louis, David J. St. Louis and Lynette D. Hecker for Plaintiff and Appellant.

Robinson, Calcagnie & Robinson and Sharon J. Arkin for Consumer Attorneys of California as Amicus
Curiae on behalf of Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Drinker Biddle & Reath, Charles F. Preuss and Alan J. Lazarus 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.

Horvitz & Levy, David S. Ettinger and Andrea M. Gauthier for California Medical Association, California
Dental Association and California Healthcare Association as Amici Curiae on behalf of Defendant and
Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Lynette D. Hecker
Law Offices of David J. St. Louis
575 E. Alluvial Ave., Ste. 102
Fresno, CA 93720
(559) 431-5563

Sharon J. Arkin
Robinson, Calcagnie & Robinson
620 Newport Center Drive, 7th Floor
Newport Beach, CA 92660
(949) 720-1288

Alan J. Lazarus
Drinker Biddle & Reath
50 Fremont Street, 20th Floor
San Francisco, CA 94105-2235
(415) 591-7500
22

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Opinion Information

Date:	Docket Number:
Mon, 05/09/2005	S121173

Disposition
May 9 2005	Opinion: Affirmed

Dockets
Dec 15 2003	Petition for review filed   by defendant and respondent (Ethicon Endo-Surgical, Inc.)
Dec 16 2003	Record requested
Dec 17 2003	Received Court of Appeal record
Dec 18 2003	Filed:   amended certificate of service for petition for review.
Dec 23 2003	Request for depublication (petition for review pending)   Product Liability Advisory Council, Inc.
Jan 2 2004	Answer to petition for review filed   by aplt Fox
Jan 5 2004	Request for depublication filed (another request pending)   by resp Ethicon
Jan 22 2004	Time extended to grant or deny review   to and including 3-12-2004
Feb 18 2004	Petition for Review Granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Feb 18 2004	Letter sent to:   All Counsel enclosing the grant order and the certification of interested entities and persons form.
Feb 26 2004	Certification of interested entities or persons filed   by Jerry D. Jones, counsel for Fresno Community Hospital and Medical Center, Operator of University Medical Center.
Mar 3 2004	Certification of interested entities or persons filed   by Kenneth P. Conour, Drinker Biddle & Reath, counsel for Respondent Ethicon Endo-Surgery, Inc.
Mar 8 2004	Received:   Letter from Jerry D. Jones, [Fresno Community Hospital and Medical Center] dated 2-26-2004, is a named defendant in the lawsuit, but is not the appellant and is not the respondent in the appeal.
Mar 8 2004	Certification of interested entities or persons filed   by William M. White, Counsel for Appellant Brandi R. Fox
Mar 18 2004	Opening brief on the merits filed   by defendant and respondent (Ethicon Endo-Surgery, Inc.)
Apr 16 2004	Answer brief on the merits filed   by counsel for plaintiff and apellant (Brandi R. Fox)
Apr 22 2004	Request for extension of time filed   for a ten day extension to and including May 16, 2004, to file Respondent's Reply Brief on the Merits.
Apr 26 2004	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Reply Brief on the Merits is extended to and including May 16, 2004.
May 17 2004	Reply brief filed (case fully briefed)   Respondent's
May 21 2004	Received application to file Amicus Curiae Brief   the Product Liability Advisory Council, Inc. [application and brief under same cover] supports respondent Ethicon Edo-Surgical, Inc.
Jun 2 2004	Permission to file amicus curiae brief granted   The application of Product Liability Adbisory Council, Inc. for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 2 2004	Amicus curiae brief filed   Product Liability advisory Council, Inc. in support of respondent.
Jun 17 2004	Received application to file Amicus Curiae Brief   by Consumer Attorneys of California in support of aplt. Fox. Appln. & brief under separate cover. (40k)
Jun 21 2004	Permission to file amicus curiae brief granted   The application of California Medical Asociation, California Dental Association, and California Healthcare Association for permission to file amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 21 2004	Amicus curiae brief filed   by Amici Curiae California Medical Association, California Dental Association and California Healthcare Association in support of Respondent Ethicon Endo-Surgery, Inc.
Jun 23 2004	Permission to file amicus curiae brief granted   The application of Consumer Attorneys of California for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 23 2004	Amicus curiae brief filed   by Consumer Attorneys of California in support of respondent.
Jul 13 2004	Response to amicus curiae brief filed   by Respondent [Ethicon] to Amicus Brief of Consumer Attorneys of California
Jan 12 2005	Supplemental briefing ordered   In addition to the issue set forth in the petition for review, the parties are requested to brief the following issues: Could plaintiff have protected her interests by employing more skillful Doe pleading under Code of Civil Procedure section 474 by including general Doe allegations in her original complaint? Would such allegations have allowed plaintiff to add Ethicon Endo Surgical, Inc. as a new defendant by "relating back" to the earlier complaint? The parties are directed to file simultaneous supplemental letter briefs on these questions on or before January 21, 2005. Simultaneous reply briefs may be filed on or before January 28, 2005.
Jan 12 2005	Case ordered on calendar   2/8/05 @ 9:15am - Sacramento
Jan 21 2005	Letter brief filed   supplemental brief of respondent ( Ethicon Endo-Surgery).
Jan 21 2005	Letter brief filed   via fax by appellant {Brandi R. Fox}.
Jan 21 2005	Filed:   Request of apellant to divide oral argument time.
Jan 31 2005	Order filed   The request of counsel for appellant to allow two counsel to argue on behalf of appellant at oral argument is hereby granted.
Jan 31 2005	Order filed   The request of appellant to allocate to amicus curiae Consumer Attorneys of California 10 minutes of appellants 30-minute allotted time for oral argument is granted.
Feb 8 2005	Cause argued and submitted
May 9 2005	Opinion filed: Judgment affirmed in full   Opinion by: Moreno, J. -- joined by George, C.J., Kennard, Baxter, Werdegar, Chin, and Brown, JJ. [ Court of Appeal judgment affirmed ]
Jun 10 2005	Remittitur issued (civil case)
Jun 17 2005	Received:   Remittitur from CA 5.

Briefs
Mar 18 2004	Opening brief on the merits filed
Apr 16 2004	Answer brief on the merits filed
May 17 2004	Reply brief filed (case fully briefed)
Jun 2 2004	Amicus curiae brief filed
Jun 21 2004	Amicus curiae brief filed
Jun 23 2004	Amicus curiae brief filed
Jul 13 2004	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website