Fox v. Ethicon Endo-Surgical, Inc. 11/4/03 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F041148

Case Date: 11/04/2003

Preview:Filed 11/4/03

CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT BRANDI R. FOX, F041148 Plaintiff and Appellant, (Super. Ct. No. 0654613-9) v. ETHICON ENDO-SURGICAL, INC., Defendant and Respondent.

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Stephen J. Kane, Judge. David J. St. Louis for Plaintiff and Appellant. Drinker Biddle & Reath, Charles F. Preuss and Alan J. Lazarus for Defendant and Respondent. Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part III.
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Appellant Brandi Fox (Fox) filed a medical malpractice action against her surgeon, asserting his negligence during surgery caused a perforation of her small intestine and subsequent complications. During his deposition, the surgeon first raised the possibility that the perforation was caused by a malfunctioning stapler. Fox then filed an amended complaint asserting a products liability cause of action against the manufacturer of the stapler, respondent Ethicon Endo-Surgery, Inc. (Ethicon). The amended complaint was filed three months after the deposition, but 31 months after the initial surgery. Ethicon filed a demurrer, asserting the cause of action was time barred by the oneyear statute of limitations. The trial court sustained the demurrer without leave to amend based on the principle of imputed simultaneous discovery of causes of action, i.e., "[w]hen a plaintiff has cause to sue based on knowledge or suspicion of negligence the statute [of limitations] begins to run as to all potential defendants." (Bristol-Myers Squibb Co. v. Superior Court (1995) 32 Cal.App.4th 959, 966, disapproved on other grounds in Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 410, fn. 8.) Although we agree with the result reached in Bristol-Myers Squibb, we reject its bright line rule of imputed simultaneous discovery of causes of action and conclude the delayed discovery of Fox's products liability claim should be analyzed based on the facts and circumstances relevant to that claim. Therefore, 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. Accordingly, we reverse judgment and direct the trial court to grant Fox leave to amend. FACTS AND PROCEEDINGS On April 10, 1999, Fox underwent gastric bypass surgery performed by Dr. Herbert Gladen. During this surgery, Fox was unconscious as the result of general anesthesia and, thus, did not observe the procedures or equipment used. After the surgery--the record is not clear as to the exact length of time--Fox went home. However, she returned to the hospital a few days after the surgery because she did not feel well. Her condition

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deteriorated, and she was taken to the operating room for exploratory surgery. Dr. Gladen found a perforation or leak at the staple closure of the proximal jejunum and attempted to close it. Dr. Gladen's operative report for the exploration and remedial action states, "no reason could be identified for the perforation."1 Subsequently, Fox remained hospitalized until March 4, 2000, and apparently required additional surgeries. On April 6, 2000, in accordance with Code of Civil Procedure section 364,2 Fox served a "Notice of Intent to Commence Action" on Dr. Gladen and the two hospitals where the surgery and subsequent care took place. Prelitigation discussions with these health care providers did not resolve Fox's claim of professional negligence. On June 28, 2000, Fox filed a complaint in Fresno County Superior Court for medical malpractice against Dr. Gladen and the two hospitals alleging that "Defendants lacked the necessary knowledge and skill to properly care for [Fox's] 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 presurgical, surgical, and post-surgical care so as to cause injuries and damages to ... Fox." The complaint was filed on the Judicial Council form for personal injury complaints and named as defendants Dr. Gladen, the two hospitals, and Does 1 to 100, inclusive. The complaint alleged, "[a]t all times herein mentioned, 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 and employees, and with the permission and consent of their co-defendants."

The exploratory surgery may have been performed on April 13, 1999 (as stated in the operative report) or on the 14th (as stated by Dr. Gladen in his deposition testimony). The operative report bears a signature date of May 20, 1999.
1 2

All subsequent statutory references are to the Code of Civil Procedure.

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During his August 13, 2001, deposition, Dr. Gladen testified that when he performed a postsurgery exploration of Fox's abdomen he found a leak at the staple closure of the small intestine. Dr. Gladen further testified that the bowel had been stapled using an Ethicon GIA-type stapler, the stapler had been furnished by the hospital, and he had experienced occasions where the stapler was used and subsequent leaks occurred. On November 28, 2001, Fox filed a first amended complaint that restated her negligence cause of action against Dr. Gladen and the hospitals, added Ethicon as a named defendant, and added a products liability cause of action against Ethicon that alleged she was injured by an Ethicon GIA-type stapler on or about April 10, 1999. The claims against Ethicon were set forth on the Judicial Council form for a products liability cause of action; Fox checked the boxes relating to "counts" for (1) strict liability concerning the design, manufacture and assembly of the product, (2) negligence, and (3) breach of implied warranty. The first amended complaint also added the allegation 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." The first amended complaint continued to name as defendants Does 1 through 100. Ethicon filed a demurrer to the first amended complaint on the ground that the products liability cause of action against Ethicon showed on its face that it was time-barred by the one-year statute of limitations contained in former section 340, subdivision (3). In her declaration opposing the demurrer, Fox stated that she (1) was never told during the course of her care and treatment subsequent to the gastric bypass surgery that the stapler had malfunctioned in any way or was responsible for the postsurgery problems she suffered; (2) did not believe she was told that a stapler type instrument was to be used on her during the gastric bypass surgery; and (3) first became aware of a possible stapler malfunction when her attorneys told her about the doctor's testimony after his deposition.

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Fox's declaration also states her willingness to file a second amended complaint to clarify the facts that support her position that until the deposition of her doctor she had no suspicions, and no basis on which a reasonable person would have had suspicions, that Ethicon's stapler had malfunctioned. Fox's attorney 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 asserts that (1) Dr. Gladen's deposition was taken during the normal course of discovery in a medical malpractice lawsuit, (2) Fox pursued the lawsuit and discovery with reasonable diligence, and (3) Fox could allege that during the entire time of Dr. Gladen's care of Fox after the surgery he never mentioned to Fox a malfunction or defect in the stapler he used in her surgery. On May 15, 2002, the trial court issued a tentative ruling indicating its intention to sustain the demurrer without leave to amend. In concluding the products liability cause of action was time barred, the trial court relied upon Norgart v. Upjohn Co., supra, 21 Cal.4th 383 (Norgart); and Bristol-Myers Squibb Co. v. Superior Court, supra, 32 Cal.App.4th 959 (Bristol-Myers Squibb). In applying those cases, the trial court determined that when a plaintiff has cause to sue based on knowledge or suspicion of negligence (in this case suspicion of medical malpractice by the doctor and hospitals), the statute of limitations begins to run as to all defendants, including a manufacturer subject to a products liability claim. The tentative ruling also stated Fox failed to show that an amendment could overcome the statute of limitations defense. After hearing argument from counsel, the trial court adopted the tentative ruling as its order; the demurrer was sustained without leave to amend. Subsequently, a judgment was entered in favor of Ethicon. Fox appeals from that judgment.

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DISCUSSION I. Standard of Review On appeal from a judgment 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.) The reviewing court must reverse the judgment if (1) the plaintiff has stated a cause of action under any possible legal theory, or (2) the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The burden of proving a reasonable possibility of cure is squarely on the plaintiff. (Ibid.) II. Statute of Limitations and The Discovery Rule A. General Rule For Accrual of a Cause of Action

Under the statute of limitations for personal injury actions in effect at the time Fox filed her complaint (see former

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