Low, Ball & Lynch’s
WEEKLY LAW RESUME
June
9, 2005 Issue By: Ray Coates
Statute of Limitations -Tolling -
Discovery of Defect
Brandi Fox v. Ethicon
Endo-Surgery, Inc.
(May 9, 2026)
Under the delayed discovery rule, a statute of limitations is tolled until a
plaintiff has reason to suspect an injury is due to some wrongful cause.
In this Supreme Court case, the question was whether the statute begins to run
as to all potential defendants when the plaintiff has a suspicion of negligence.
Brandi Fox filed a medical malpractice action after gastric bypass surgery
and she developed severe complications. During the course of discovery,
she received information that a medical device used during the surgery may have
malfunctioned, contributing to her injury. She amended her complaint to
add a products liability cause of action against the manufacturer of the
device, Ethicon Endo-Surgery, Inc. Ethicon filed a demurrer raising the
statute of limitations as a defense. The Superior Court sustained the
demurrer without leave to amend. The Court of Appeal reversed 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 product liability
claim. Ethicon petitioned for a review in the Supreme Court, and the
Court granted review.
A unanimous Supreme Court affirmed the Court of Appeal. The Court
noted that a statute of limitations can be postponed until a point the
discoverer has reason to discover the cause of action. This usually runs
from the time the plaintiff learns or should have learned the facts essential
to their claim. This rule applies even if the plaintiff does not have
reason to suspect the defendant’s identity. A potential plaintiff must
conduct a reasonable investigation of all potential causes of injury. A
statute begins to run when the investigation would have revealed those causes.
In this case, Fox alleged that she could not discover the existence of a
claim against Ethicon until after the deposition of the doctor. The
Supreme Court held that was sufficient to allege delayed discovery so as to
delay the running of the statute of limitations. The Supreme Court stated
that ignorance of the identity of a defendant does not delay accrual of a cause
of action. However, ignorance of a generic element of the cause of action
does. Thus, the plaintiff’s ignorance of wrongdoing involving a product’s
defect will delay accrual of a cause of action because such wrongdoing is
essential to the cause of action. The delayed discovery rule can delay
accrual of the products liability cause of action even when a related medical
malpractice claim has already accrued. Simply stated, the Court said 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 delayed discovery rule postpones accrual of the statute of
limitations on the newly discovered claim. The Court therefore ruled that
the judgment of the Court of Appeal was correct.
COMMENT
The Supreme Court rejected the bright line rule that would hold that when a
plaintiff has a cause to sue based upon suspicion of negligence, the statute
begins to run as to all potential defendants. Instead, the Court held
that there can be postponed accrual as to causes of action where the essential
facts of that cause of action are not known.
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