Rosas v. BASF Corporation
Second Appellate District
Filed May 21, 2015
Delayed Discovery Rule in Toxic Tort Cases
Plaintiff and appellant Ismael Rosas appealed from judgments entered after the trial court granted summary judgment in favor of defendants and respondents BASF Corporation and other company’s that manufactured certain chemicals to which plaintiff alleges he was exposed.
The trial court concluded that a two-year statute of limitations began to run on Rosas’s claims in 2003, because the undisputed evidence demonstrated he was hospitalized with an unknown disease that he suspected was caused by exposure to a particular chemical at his work in a food flavoring plant. The Court of Appeal concluded the evidence is susceptible to more than one legitimate inference, and that it is a question of fact for the jury to determine whether the facts known to Rosas before November 2006 were enough to put a reasonable person on inquiry notice that his lung disease was caused by the wrongful act of another.
The case serves as an affirmation of the delayed discovery rule first articulated in the Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 and Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103. The touchstone for accrual of the statute of limitations is “suspicion of wrongdoing.”
“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. [Citations.] [¶] 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.’ [Citations.]” (Id. at p. 807.) A potential plaintiff “discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof—when, simply put, he at least ‘suspects . . . that someone hasdone something wrong’ to him [citation], ‘wrong’ being used, not in any technical sense,but rather in accordance with its ‘lay understanding’ [citation].” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398 (Norgart), fn. omitted.)
“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 dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury 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.’”’ [Citations.]” (Fox, supra, 35 Cal.4th at pp. 807-808, fn. omitted.) “A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. 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 a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Jolly, supra, 44 Cal.3d at p. 1111.) Statutes of limitation serve two potentially competing purposes. First, they “give defendants reasonable repose, that is, to protect parties from defending stale claims.” (Id. at p. 1112.) Second, they “require plaintiffs to diligently pursue their claims.” (Ibid.) The discovery rule strikes a balance between the two purposes. “Because a plaintiff is under a duty to reasonably investigate and because a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause, will commence the limitations period, suits are not likely to be unreasonably delayed, and those failing to act with reasonable dispatch will be barred. At the same time, plaintiffs who file suit as soon as they have reason to believe that they are entitled to recourse will not be precluded.” (Ibid., fn. omitted.)
