For more than 10 years, the statute of limitations for a personal-injury claim in California began to run when the plaintiff suspected or should have suspected that his or her injury was caused by someone’s wrongdoing. Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103 (1988). Although this "discovery rule" is easy to state, the issue of just what it takes to raise a suspicion — and who must be suspected — for the statute of limitations to accrue has troubled the appellate courts from time to time.

In Bristol-Myers Squibb Co. v. Superior Court, 32 Cal. App. 4th 949 (1995), the 4th District Court of Appeal extended Jolly by holding that the statute of limitations accrues for all defendants as soon as the plaintiff knows, or suspects, he or she has been injured by anyone’s wrongdoing.

In Norgart v. Upjohn Co., 74 Cal. Rtpr. 2d 807 (1998), the 1st District Court of Appeal disagreed with Bristol-Myers, finding that under the discovery rule, the statute of limitations could vary for different defendants that together were alleged to have caused harm, depending on when the plaintiff suspected, or had reason to suspect, that he or she had been injured by each particular defendant. Upjohn appealed, and the stage was set for the California Supreme Court to make a clear statement.

Last month, the Supreme Court made its statement and reversed the 1st District’s Norgart holding. Although in Norgart v. Upjohn Co., 1999 WL 615479 (Cal. Aug. 16, 1999), the court took the opportunity to catalogue California’s statute of limitations law and what it takes to raise a suspicion under the discovery rule, it ultimately sidestepped the dispute between Bristol-Myers and the Court of Appeal’s Norgart decision.

At the heart of Norgart was the death of Kristi Norgart McBride, who committed suicide on Oct. 16, 1985, by overdosing on prescription drugs, including Halcion made by defendant Upjohn. Upjohn’s package insert for Halcion warned that the drug could intensify the symptoms of depression, including suicidal tendencies, and that intentional overdose is more common in depressed patients who are taking Halcion. Before her suicide, Kristi had been diagnosed with depression and had attempted suicide on two occasions.

Immediately following Kristi’s death, her father, Leo Norgart, began an investigation because he thought "there had to be some reason, other than just herself, that would cause her to commit suicide." During the course of this investigation, in about mid-1986, Norgart suspected that someone had done something to his daughter that had caused her to take her own life. He consulted an attorney about the possibility of bringing a wrongful-death suit against Kristi’s husband (for abuse) and her doctor (for professional negligence). Although the attorney referred Norgart to other lawyers who practiced in that area, Norgart did not pursue the matter.

On Oct. 16, 1991, six years after Kristi’s death, her parents filed suit against Upjohn for fraud and for the wrongful death of their daughter, claiming that Halcion was not accompanied by adequate warnings, that it was "unreasonably dangerous" in high doses and that it had caused Kristi to commit suicide.

Upjohn filed a motion for summary judgment on statute-of-limitations grounds. The trial court denied the motion because there was a triable issue of fact under the discovery rule about when the plaintiffs first suspected the factual basis for their causes of action.

But Upjohn moved for reconsideration on the basis of Bristol-Myers. To get the case in front of the Court of Appeal as quickly as possible without the expense of trial, the parties stipulated to a judgment in favor of Upjohn.

The Court of Appeal reversed the trial court and rejected Bristol-Myers, finding that under the discovery rule, the statute of limitations runs only when the plaintiff suspects, or has reason to suspect, the factual basis for the cause of action as against each particular defendant. Thus, because Norgart only had suspicions about Kristi’s husband or doctor, the statute of limitations did not bar the claims against Upjohn.

The Supreme Court reversed, initially stating that the date of the death of an individual generally is the accrual date for wrongful-death claims, for it is on that date that all the elements of the cause of action are present. Therefore, the Norgarts’ cause of action accrued on Oct. 16, 1985.

The Supreme Court did not stop there, however. The court also expounded on the discovery rule and assumed, for discussion purposes, when a plaintiff is "blamelessly ignorant" of a cause of action, the discovery rule should apply and, in effect, extend the statute of limitations. Thus, returning to Jolly, under the discovery rule, the date of accrual would be the date Norgart came to suspect, or had reason to suspect, the injury.

Under this standard, the plaintiffs’ claims were still untimely because by mid-1986, Norgart suspected that "someone had done something wrong" to cause Kristi’s death, even if his suspicions had not yet turned to Upjohn. It was enough that Norgart suspected that "something wrong" had happened to Kristi to cause her death and that he thought "there had to be some reason, other than just herself, that would cause her to commit suicide."

The court did not require Norgart to have formed a suspicion that it was Upjohn that was responsible for Kristi’s death. Rather, the court reaffirmed Jolly and noted that a plaintiff has reason to discover the cause of action "when he has reason at least to suspect a factual basis for its elements" and when he has "notice or information of circumstances to put a reasonable person on inquiry." It is not necessary that the plaintiff know all the specific facts necessary to prove the cause of action; once suspicion has been around, a plaintiff may not simply wait for the facts to find him, he must go find them himself.

The court indicated that even Bristol-Myers may be too strict and disapproved the Bristol-Myers holding to the extent it requires a plaintiff to do more than suspect a factual basis for the elements of a cause of action.

Although the Supreme Court left the Bristol-Myers case intact on the issue that it is enough that a plaintiff have formed suspicions about one defendant for the statute of limitations to accrue as to all, it backed away from resolving any conflict between the Bristol-Myers holding and the holding of the Court of Appeal in Norgart because, in its opinion, there was no such conflict. The Supreme Court pointed out that the facts of this case did not support the Court of Appeal’s conclusion that "a plaintiff’s suspicion as to one act of wrongdoing does not necessarily lead the plaintiff to suspect another act of wrongdoing."

The court pointed out that by mid-1986, Norgart had formed a belief that at the very least, Kristi’s husband and doctor bore some responsibility for her death and had contemplated bringing a wrongful death action. Had he done so, he would then have had three years to amend that complaint to substitute Upjohn for a Doe defendant. Because the suit against Upjohn would have rested on the same general set of facts (that Kristi committed suicide as a result of an overdose of drugs including Halcion), involved the same injury (Kristi’s death), and referred to the same instrumentality (the Halcion), the complaint would have related back as to defendant Upjohn and the Norgarts would not be facing any statute-of-limitations problem.

With Norgart, the Supreme Court has stated in no uncertain terms that as soon as plaintiffs have, or should have, suspicions that they may have a cause of action, the statute of limitations begins to run. While the court’s discourse on the general principles behind statutes of limitations and reasonable suspicion under the discovery rule, and its affirmation of Jolly, provide some guidance, Norgart has left open the issue of whether the statute of limitations is triggered as to all defendants when the plaintiff develops suspicions about one defendant and the defendants independently contribute to a plaintiff’s harm. Until this issue is resolved, plaintiffs should pay heed to the suspicions in their minds and file their claims quickly.