Opinion
No. 85-906.
Filed January 8, 1988.
1. Limitations of Actions: Time: Words and Phrases. For the purposes of statutes of limitations, a claim "accrues" at the time of the plaintiff's injury, although this rule has been modified in many jurisdictions to provide that such accrual does not occur until the injury manifests itself, i.e., when the plaintiff learns, or in the exercise of reasonable diligence should have learned, of the injury and the actions that caused it. 2. ___: ___: ___. by applying a "discovery" rule, this does not mean that the statute of limitations does not begin to run until someone either advises an individual that the injury or damage which one already knows one has sustained is actionable or advises such individual who it is that should be sued. Discovery, as applied to such statutes of limitations, refers to the fact that one knows of the existence of an injury or damage and not that he or she has a legal right to seek redress in the court. 3. Limitations of Actions: Time. A cause of action accrues, and the statute of limitations begins to run, when the aggrieved party has the right to institute and maintain suit, even though such plaintiff may be ignorant of the existence of the cause of action. 4. Malpractice: Limitations of Actions: Time. A plaintiff may be advised or may be wrongfully advised by both the medical and legal fields, but the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make. The running of the statute is not tolled until the plaintiff is led to suspect negligence. 5. Limitations of Actions: Time. The statute of limitations runs when plaintiff (1) knows or should have known of both the injury and the cause of harm or (2) has some awareness or imputed awareness that his or her injuries were the result of some wrongdoing on the part of the defendant. This does not mean that plaintiff has to (1) be aware of all the elements of a legal cause of action, (2) be aware of the probability of success in such a lawsuit, or (3) have his or her knowledge of wrongdoing rise to the level of certainty.
Appeal from the District Court for Box Butte County: ROBERT R. MORAN, Judge. Affirmed.
Robert W. Mullin of Van Steenberg, Brower, Chaloupka, Mullin Holyoke, for appellant.
Francis L. Winner of Winner, Nichols, Douglas, Kelly and Arfmann, for appellee.
BOSLAUGH, C.J., Pro Tem., WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, D.J., Retired.
The plaintiff has appealed from a judgment in favor of the City of Alliance in his action under the Political Subdivisions Tort Claims Act. That judgment was based on the running of the statute of limitations.
In July of 1981, the plaintiff was an employee of the city of Mitchell. It had purchased part of an electrical substation, including a transformer, from the City of Alliance. As part of his duties for the city of Mitchell, the plaintiff dismantled this equipment in preparation for its move to Mitchell and in September began assisting in reconstructing this same equipment after it arrived in Mitchell. As a part of this operation, it was necessary for the plaintiff to have his arms in oil, contained in the transformer, for extended periods of time.
This oil was later found to contain PCB (polychlorinated biphenyl), a toxic substance. Plaintiff was hospitalized several times after that for excessive fatigue, weakness, and numerous physical complaints. As a proximate result of such exposure, plaintiff alleged in his pleadings, he suffered severe illnesses, including liver damage, multiple physical illnesses, pain, and total permanent disability.
According to the record, the city of Mitchell had filed a workers' compensation report of injury in which it alleged illness on the part of the plaintiff, resulting from exposure to transformer oil while doing maintenance on a transformer. This report was dated January 27, 1982, and alleged that plaintiff had been feeling ill for about 6 weeks as of December 16, 1981, and was hospitalized for tests on January 11, 1982.
On March 8, 1982, a trade magazine, Public Power Weekly, published an article, entitled "Neb. utility superintendent is ill from exposure to PCBs," disclosing results of an interview with plaintiff a week earlier. The article, in relevant part, provides:
"I remembered I'd been working on a transformer shortly before Thanksgiving and it occurred to me the oil could have contained PCBs" Ward said last week.
"Doctors asked me if I'd been around any toxic chemicals and I said no. Then I remembered I'd spent two days with my arms immersed to my elbows in transformer oil repairing an old transformer which we bought used from another municipality," he said.
A test on a sample of the transformer oil shows it contained 229 parts per million of PCBs . . . .
. . . .
. . . He [Ward] said he experiences severe headaches, terrible weakness, abnormal appetite, itching on his arms and aching in his shoulder, knee, and arm joints. His vision sometimes seems impaired too, he said.
. . . .
Doctors plan to do further tests on his liver. He is being treated by his local family physician and expects to see a specialist in Chicago, Dr. Daniel Hryhorczuk, who has done research on the effects of PCBs.
The plaintiff testified by deposition that in January of 1982 he suspected PCB contamination and directed three of his employees to have tests run on their blood.
Plaintiff argues in his brief that among the various medical personnel there was an inability to develop and stick with a definitive diagnosis throughout the period from July 1981 through 1985. He continues by pointing out that in late 1983, the treating physician could not give a definite opinion of causation. However, in a letter dated October 11, 1983, that same physician wrote: "The possibility of PCB poisoning came to our attention in November of 1981 in regard to Mr. Ward . . . ."
On April 6, 1985, the plaintiff reported to his attending physician with a suspicious lesion on the right side of his nose, which was excised and submitted for laboratory analysis which disclosed it to be a basal cell carcinoma.
The claim in this case was filed against the City of Alliance on November 11, 1983, and the petition was filed in the district court on April 19, 1985.
Dr. Janette D. Sherman, a toxicologist, testified that she reviewed the plaintiff's records and examined him on August 20, 1985, and, as a part of that examination, she reviewed certain of plaintiff's medical records. She gave as her opinion that the cause of the basal cell carcinoma was plaintiff's exposure to PCB. Additionally, although the testimony is a trifle vague, Dr. Sherman suggested that if she had been given the history and laboratory reports which were available in 1981, she could have made the diagnosis of exposure to PCB at that time. Dr. Sherman also commented that Dr. Lowell A. Stratton, plaintiff's local physician, did an outstanding job of diagnosing possible PCB involvement as early as June of 1982.
The trial in this case was bifurcated and, at the outset, concerned only the issue of the statute of limitations. At the close of all of the evidence the district court concluded that attaching a discovery exception to Neb. Rev. Stat. § 23-2416 (Cum. Supp. 1984), as was mandated by this court in Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581 (1962), with respect to Neb. Rev. Stat. § 25-208 (Reissue 1964), would result in a bar to the present action.
Section 23-2416 requires that every claim against a political subdivision shall be forever barred unless a claim in writing is made within 1 year after such claim accrued. Additionally, all lawsuits permitted by that section must be brought within 2 years after such claim accrued, with certain exceptions which we need not discuss here.
Specifically, the trial court found that the evidence established that by March 9, 1982, if not earlier, the plaintiff had sufficient information to trigger the running of the time requirements and that he failed to file a notice of his claim or commence suit within the time stated in the statute. Because plaintiff's claim was not filed with the City of Alliance until November 11, 1983, which we find is well beyond the requirements of 23-2416, we need not discuss the matter of the filing of the petition.
As previously stated, every claim against a political subdivision shall be forever barred unless a claim in writing is made within 1 year after such claim accrued. The critical question then becomes, When did the claim accrue?
The general rule in tort law is that a claim "accrues" at the time of the plaintiff's injury, but this rule has been modified in many jurisdictions to provide that such accrual does not occur until the injury has manifested itself. United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L.Ed.2d 259 (1979). Kubrick is cited for the proposition that an action accrues when a plaintiff learns, or in the exercise of reasonable diligence should have learned, of the injury and the actions that caused it.
This court, as early as Spath v. Morrow, supra, applied a discovery rule to avoid the harshness of a strict statute of limitations application in a medical malpractice case under then-existing 25-208. A judicial exception to 23-2416 should be wholly consistent with the discovery exception to 25-208 carved out by Spath.
The case of Condon v. A. H. Robins Co., 217 Neb. 60, 349 N.W.2d 622 (1984), involved a personal injury upon use of a defective product. A discovery rule was applied, with the statute of limitations beginning to run "on the date on which the party holding the cause of action discovers, or in the exercise of reasonable diligence should have discovered, the existence of the injury or damage." Id. at 68, 349 N.W.2d at 627. The court went on to clarify:
By applying a discovery rule to 25-224(1), we are not providing that the statute of limitations does not begin to run until someone advises an individual either that the injury or damage which they already know they have sustained is actionable or advises them who it is that should be sued. Discovery, as we apply it to 25-224(1), refers to the fact that one knows of the existence of an injury or damage and not that one knows he or she has a legal right to seek redress in the court.
Id.
A cause of action accrues, then, and the statute of limitations begins to run, when the aggrieved party has the right to institute and maintain suit, even though such plaintiff may be ignorant of the existence of the cause of action. Mangan v. Landen, 219 Neb. 643, 365 N.W.2d 453 (1985). See Interholzinger v. Estate of Dent, 214 Neb. 264, 333 N.W.2d 895 (1983). Also, 54 C.J.S. Limitations of Actions 205 at 216 (1948) provides: "In the absence of a statute providing otherwise, ignorance of the existence of a cause of action ordinarily does not toll the statute of limitations, particularly where the facts may be ascertained by inquiry or diligence."
Condon cited the federal case of Davis v. United States, 642 F.2d 328 (9th Cir. 1981), cert. denied 455 U.S. 919, 102 S. Ct. 1273, 71 L.Ed.2d 459 (1982), which presents an analogous situation under the Federal Tort Claims Act. The plaintiff in Davis was the recipient of an oral polio vaccine who suffered paralysis as a result. The court held that the 2-year limitations period began to run when the plaintiff knew that the vaccine was the likely cause of injury. The court placed the burden on the "plaintiff to ascertain the existence and source of fault within the statutory period." (Emphasis supplied.) 642 F.2d at 331.
The court in Davis drew heavily upon the Kubrick, supra, opinion. Kubrick involved an action under the Federal Tort Claims Act wherein a patient was treated with an antibiotic at a Veterans' Administration hospital. The petitioner had argued that the negligence question was technically complex, but, as with this malpractice case, the Court noted that in most negligence cases "determining negligence or not is often complicated and hotly disputed." 444 U.S. at 124. The Court refused to hold that "`accrual' of a claim must await awareness by the plaintiff that his injury was negligently inflicted." 444 U.S. at 123.
A plaintiff may be advised or may be wrongfully advised by both the medical and legal fields, but "the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make." 444 U.S. at 124. Again, the Court would not hold that "the statute is not to run until the plaintiff is led to suspect negligence . . . ." Id. Ward claims that he did not know the cause of his injury, but because causation is an element of negligence, the Kubrick holding should be dispositive of Ward's claim.
On policy grounds, the Kubrick Court noted the statute of limitations' obvious purpose — to encourage prompt presentation of claims. It referred to the plea of limitations as a "`meritorious defense, in itself serving a public interest.' Guaranty Trust Co. v. United States, 304 U.S. 126, 136 (1938)." United States v. Kubrick, 444 U.S. 111, 117, 100 S. Ct. 352, 62 L.Ed.2d 259 (1979).
In the present case, plaintiff was aware in January 1982 that he had been injured and that PCB toxins in the transformer oil were the likely cause of his injury. These facts were so stated in an accident report filed for workers' compensation purposes at that time. At the very latest, in March 1982, plaintiff was certainly aware that PCB was the cause, when he disclosed the details of his illness and claim to a public magazine. In the magazine interview plaintiff remembered having spent 2 days shortly before Thanksgiving with his arms immersed to his elbows in transformer oil while at work. Plaintiff listed his injuries in detail. The interview continued that one day between January and March of 1982, while plaintiff was home resting, he recalled having it occur to him that the oil could have contained PCBs. The results of this interview, coupled with the fact that plaintiff had gathered enough information to claim workers' compensation benefits, charge plaintiff with the ability to have filed a notice of claim and suit against defendant at that time. Plaintiff knew the cause. Plaintiff knew PCB was the culprit.
If anything, medical advice incited plaintiff's suspicions regarding PCB in the oil. It is true, however, that there are always numerous possible causes when it comes to medical problems and that plaintiff received some mixed signals, e.g., "undiagnosed disease," "poisoning unlikely," no answer as to illness, and normal medical profiles on other coworkers. Plaintiff still cannot possibly claim that he did not know about his case until November 11, 1982, which is the latest discovery date for plaintiff's filing and suit to be timely. The workers' compensation claim and the magazine interview are proof enough for this court to effectuate the rationale behind the limitations rule — prompt presentation of claims.
Although not cited in either brief, the applicable law on discovery is perhaps best summarized in Dawson v. Eli Lilly and Co., 543 F. Supp. 1330 (D.D.C. 1982), a case involving diethylstilbestrol (DES) and its effects on daughters of women who took the drug during pregnancy. The statute of limitations runs when plaintiff (1) knows or should have known of both the injury and the cause of harm or (2) has some awareness or imputed awareness that his injuries were the result of some wrongdoing on the part of the defendant. This does not mean that plaintiff has to (1) be aware of all the elements of a legal cause of action, (2) be aware of the probability of success in such a lawsuit, or (3) have his knowledge of wrongdoing rise to the level of certainty.
Without deciding whether the "discovery" rule in fact applies to 23-2416, there is ample evidence in the record to suggest that plaintiff knew or should have known on or before March 9, 1982, that PCB in the oil was the cause of his injuries. Because it cannot be said that the district court was clearly wrong in its factual finding that the defendant met its affirmative defense of the statute of limitations, the judgment of the district court should be affirmed.
AFFIRMED.