Academic journal article Defense Counsel Journal

What Are "Discovery" and "Injury" for Limitations Provisions

Academic journal article Defense Counsel Journal

What Are "Discovery" and "Injury" for Limitations Provisions

Article excerpt

The New York Court of Appeals has given a narrow reading to that state's statute of limitations governing the period in which toxic tort actions may be commenced, by holding that the "discovery" element stands alone and does not include knowledge that the condition discovered is attributable to an injury inflicted by a third person.

In August 1992, Susan Wetherill commenced an action against a large group of manufacturers of the drug diesthylstilbstrol, known as DES, under the market share theory approved for use in New York by the New York Court of Appeals in Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989). In 1978 or 1979, she had been treated for dyslasia, and from 1980 to 1987, she suffered four miscarriages and delivered a pre-term baby who did not survive. She was advised by physicians that she had a T-shaped uterus, for which she underwent surgery, and an "incompetent" cervix. In early 1988, her sister told Susan that their mother might have taken DES during her pregnancy with Susan, but she did not pursue this lead. In late 1989, Wetherill overheard a physician who was treating her for a pregnancy tell a medical assistant that her medical history revealed "classic symptoms" of DES.

The statute of limitations at issue provides that the three-year period in which to bring an action for personal injuries caused by "latent effects of exposure to any substance or combination of substances . . . shall be computed from the date of discovery of the injury by the plaintiff or the date when through exercise of reasonable diligence such injury could have been discovered by the plaintiff, whichever is earlier." Several defendants won a dismissal on the ground the action was time-barred because it was commenced more than three years after the plaintiff discovered the ailments that formed the basis of her complaint. But she argued that the three-year did not begin to run until late 1989 when she overheard the physician's remark and learned her symptoms were likely to be DES related.

The intermediate appellate agreed with Wetherill, holding that summary judgment on the statute of limitations issue was inappropriate. "Discovery," with the meaning of the statute, it ruled, is not merely discovery of the condition or symptoms but also "discovery of the fact that those symptoms are attributable to an injury inflicted upon the plaintiff by a third party. …

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