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In re Surgical Sutures Cases II

Court of Appeals of California, First Appellate District, Division One.
Nov 18, 2003
No. A101045 (Cal. Ct. App. Nov. 18, 2003)

Opinion

A101045. JCCP No. 4148.

11-18-2003

IN RE SURGICAL SUTURES CASES II.


Maria Cotter (plaintiff) appeals from a judgment entered in favor of defendants Ethicon, Inc., Johnson & Johnson Health Care Systems, Inc., and others, after the trial court granted defendants demurrer to plaintiffs first amended complaint without leave to amend, on the ground that her claims for personal injury were barred by the statute of limitations. We affirm.

Background

On August 21, 2001, plaintiff, acting in propria persona, filed a complaint against defendants alleging 11 causes of action for negligence, products liability, and fraud.

The complaint named as defendants Ethicon, Inc., Johnson & Johnson, Johnson & Johnson Hospital Services Corp., Johnson & Johnson Health Care Systems, Inc., Owens & Minor West, Inc., and Owens & Minor, Inc.

The complaint alleged that defendants Ethicon and Johnson & Johnson, producers of 80 percent of all medical sutures in the country, designed, manufactured, marketed, distributed and sold contaminated sutures in 1993 and 1994. Plaintiff underwent abdominal surgery in May 1994 in which defendants sutures were used, causing her to suffer infection and injury. "Plaintiff did not know, or have reason to know, that Defendants were the cause of her injuries until nationwide publicity occurred in 1999 regarding Ethicons overall malfeasance in designing, manufacturing, distributing, marketing, and selling its vicryl sutures."

Defendants demurred to the complaint asserting that on its face it was barred by the one-year statute of limitations in Code of Civil Procedure section 340, as interpreted by the Supreme Court in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 (Jolly). In other words, the complaint recited, as quoted above, that sometime in 1999 plaintiff had reason to know the cause of her injury. Therefore the statute of limitations ran one year later, sometime in 2000, and the filing of the complaint in 2001 was too late.

Plaintiff retained counsel and opposed the demurrer. In her opposition, counsel stated the following: Plaintiff has necrotizing fasciitis, which causes her constant and severe pain, and severe infection in several organs and her limbs. From 1994 to 2000, plaintiff and her various physicians did not know the cause of her condition and considered it a "medical mystery." Plaintiff attempted to solve the mystery by gathering information about various unsolved medical ailments.

Sometime around September 1999, plaintiff heard the introduction to a television program (20/20) in which one of the stories involved what she believed to be a new "medical mystery." She ordered a copy of the videotape of the program because of her interest in her own condition. When she received the tape weeks later, however, she "did not watch it but rather place[d] it with other video [sic] and information she intended to review at some point."

Almost a year later, on August 24, 2000, plaintiffs doctor diagnosed necrotizing fasciitis and told her she could lose her leg. According to plaintiffs opposition, the evening she received the diagnosis, she began reviewing all her medical records collected through the years, including her 1994 surgical report. Plaintiff discovered that Ethicon sutures had been used in her surgery and in particular recalled that this name was discussed in the videotape. Plaintiff then watched the tape and learned that Ethicon sutures used in 1994 were contaminated. Plaintiff claimed at that moment she first realized that the source of her continuing illness could be from contaminated Ethicon sutures.

Plaintiff never explained the inconsistency inherent in the statements that she had not viewed the tape, but that she remembered Ethicon sutures were discussed in it.

Plaintiff explained that she had assistance from a paralegal in drafting the complaint. She told the paralegal that she had not watched the tape until 2000, after her condition was diagnosed. But the drafter failed to include this fact in the complaint. Therefore plaintiff asked to amend the complaint in order to cure the statute of limitations bar.

In response to plaintiffs opposition to the demurrer, defendants argued that plaintiffs explanation did not cure the statute of limitations defect because she had a suspicion of wrongdoing well before her diagnosis in August 2000, and she was held to knowledge that she reasonably could have discovered (the contents of the tape) in 1999.

During argument on the demurrer, plaintiffs counsel explained that plaintiff did not actually receive nationwide notice in 1999. She was too sick to pay attention to such publicity. Rather, the reference to that date in the complaint was explained by the fact the paralegal who assisted her had used a canned complaint which had been taken from other cases against Ethicon.

Defendants argued that plaintiffs actual knowledge was not the test. Nothing in her doctors visit in 2000 changed the facts since he did not tell her the disease was related to the sutures. He told her she was very ill, which she already knew. She then investigated materials she previously had gathered. Plaintiff countered that although over the years she had gathered information and tried to determine the cause of her illness, she had not suspected wrongdoing until the doctors visit in 2000.

The court sustained the demurrer with leave to amend.

Plaintiff filed her First Amended Complaint on July 11, 2002. In it she omitted any reference to the year 1999. Instead she stated, "Plaintiff did not know or have reason to know that Defendants were the cause of her injuries until on or about August 24, 2000. On or about August 24, 2000, Plaintiff was diagnosed with necrotizing fasciitis, after numerous physicians were unable to diagnose her condition. Her doctor told her he had no idea how she had acquired the flesh-eating bacteria, necrotizing fasciitis. Plaintiff was told that this condition would probably result in the lost [sic] of her leg and total physical disability. Through the years, many physicians tried to diagnose Plaintiffs condition. In the process, plaintiff was given and accumulated herself, information including, books, articles, and tapes regarding numerous medical conditions,. [S ic.] After learning of her diagnosis on August 24, 2000, that night plaintiff began an exhaustive review of all her medical records and all the information she had accumulated through the years, including a videotape of a television program that discussed the Ethicon vicryl sutures. Plaintiff, who had trust [sic: just] read her medical records hours earlier, recognized the words Ethicon vicryl sutures [in] the video tape as the same name of the sutures that she had read in her medical records from her 1994 surgery. She reread the record and discovered that Ethicon vicryl sutures had in fact been used during her 1994 surgery."

Defendants demurred to the first amended complaint, asking the court to take judicial notice of plaintiffs original complaint and pointing out that in the first amended complaint plaintiff had deleted the sentence "that had contained her admission to knowledge of `nationwide publicity in 1999 (which is indisputably outside the statutory period) and has added a paragraph effectively changing that key date to August 24, 2000, three days inside the statutory period." Defendants asserted that these amendments changed nothing, because even if they were true they still show "a history whereby Plaintiff had `suspicion of wrongdoing well before the one-year period."

At argument on the demurrer, the court began by stating that "the matter of whether or not Ms. Cotter was put on inquiry notice such that she should have filed prior to August 21st, 2000 remains problematic . . . ." Plaintiff argued it would be improbable for her to discover that there was wrongdoing until she discovered her condition and the cause of it. Defendants countered, "Nothing about the information she received later changes the facts in her possession from which she puts together the puzzle. She could have done that a year ago and she just chose not to."

The court sustained the demurrer without leave to amend on the ground the claims for personal injury were barred by the statute of limitations, for two reasons. First, plaintiff had failed to explain the specific factual allegations in her original complaint and earlier brief, which could not simply be ignored because they were inconvenient. Second, even if the court ignored the original pleading, the first amended complaint showed that plaintiff was on inquiry notice of a claim well before August 24, 2000.

Judgment was entered that plaintiff take nothing and defendants recover costs. This appeal followed.

Discussion

Both sides agree that former section 340, subdivision (3) of the Code of Civil Procedure applies to this proceeding. That section provided a one-year statute of limitations for "injury to or for the death of one caused by the wrongful act or neglect of another . . . ." The complaints alleged that plaintiffs injury was inflicted during surgery in May 1994. Therefore the statute of limitations ran in May 1995, unless an exception applies.

In 2002 the Legislature removed this provision from Code of Civil Procedure section 340, and added section 335.1, which changed the period of limitations for these types of injuries to two years. The Legislature expressly provided that the increase of the period from one to two years is retroactive only for victims of the terrorist actions of September 11, 2001. (Code Civ. Proc., § 340.10; Stats. 2002, ch. 448, §§ 1—2, pp. 2136—2137.)

In general, a cause of action accrues for purposes of the statute of limitations, and the applicable limitations period begins to run, when the plaintiff has suffered damages from a wrongful act. (Samuels v. Mix (1999) 22 Cal.4th 1, 9; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) This rule, however, has an important exception referred to as the "discovery rule." The "discovery rule" provides that "the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause. [Fn. and citation omitted.] A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her. [Citation.]" (Jolly, supra, 44 Cal.3d 1103, 1109.)

That is, the statute of limitations begins to run "when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. [Fn. omitted.]" (Jolly, supra, 44 Cal.3d at p. 1110.) Further, plaintiff "need not be aware of the specific `facts necessary to establish the claim . . . ." (Id. at p. 1111.) The period begins to run once she " ` " `has notice or information of circumstances to put a reasonable person on inquiry . . . ."" (Id. at pp. 1110—1111.)

Plaintiffs original complaint recited that she "did not know, or have reason to know, that Defendants were the cause of her injuries until nationwide publicity occurred in 1999 regarding Ethicons overall malfeasance in designing, manufacturing, distributing, marketing, and selling its vicryl sutures." The court sustained the demurrer citing these allegations and the statements in Plaintiffs opposition that she heard the introduction to the 20/20 piece and received the tape but did not view it. The court viewed these statements as demonstrating that the personal injury claims were barred by the statute of limitations. Although the court did not set out its reasoning at this point in the proceedings, it is clear that the court was applying the discovery rule as explained in Jolly, and found that plaintiff knew or was on inquiry notice and should have suspected wrongdoing in 1999.

After the court granted defendants demurrer with leave to amend, plaintiff filed her amended complaint in which she omitted all reference to 1999. The trial court found this to be an inadequate and improper response to the sustaining of the demurrer, apparently relying on the "sham pleading rule." (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 944.) Where inconsistencies occur between a complaint and amended complaint, "`[t]he policy against sham pleadings permits the court to take judicial notice of the prior pleading and require that the pleader explain the inconsistency. If [s]he fails to do so, if [s]he fails to give a satisfactory explanation, the court may disregard the omitted or inconsistent allegations and read into the [amended] complaint the allegations of the superseded complaint. . . . " (Ibid.) That is what occurred here.

Plaintiff was afforded opportunities to explain the inconsistency regarding what occurred in 1999, but she never did so to the courts satisfaction, seemingly because there simply was no satisfactory explanation. In its order sustaining the demurrer to the first amended complaint the court stated, "Plaintiff has not explained the specific factual allegations in her original complaint and earlier brief. Plaintiff cannot simply ignore relevant facts because they may be inconvenient. Berman v. Bromberg [, supra,] 56 Cal.App.4th 936, 946." (See also Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57.)

The Berman court stated, citing and quoting previous authorities, " `. . . "A pleader may not attempt to breathe life into a complaint by omitting relevant facts which made his previous complaint defective." [Citation.] Moreover, any inconsistencies with prior pleadings must be explained; if the pleader fails to do so, the court may disregard the inconsistent allegations. [Citation.]" (Berman v. Bromberg, supra, 56 Cal.App.4th at 946.)

Thus, the court, reviewing the evidence and arguments before it, did not accept plaintiffs explanation that the drafter of her first complaint inserted the reference of what occurred in 1999 from a "canned" complaint used in other Ethicon litigation. In fact it would have been surprising for the court to accept this story, since plaintiff consistently took the position that she received the tape in 1999 but did not watch it until much later.

In any event, ultimately it did not matter when plaintiff actually watched the tape, for the trial court found the critical fact was not when she viewed it, but that she was on inquiry notice "well before August 24, 2000," citing Jolly, supra. The court concluded, "The First Amended Complaint states that Plaintiff had collected information `through the years, demonstrating that she had been on inquiry notice for several years before she filed this action."

In sum, the trial court found that the one-year statute of limitations had run before plaintiff filed her complaint, and the court sustained the demurrer to the first amended complaint on two independent and equally valid grounds: First, plaintiffs failure to explain the admission in her original complaint that she gained knowledge about the Ethicon sutures in 1999; and second, plaintiffs accumulation of sufficient information to be put on inquiry notice years before she filed her complaint.

Plaintiff cites a recent medical malpractice decision that she argues compels a contrary result. (Artal v. Allen (2003) 111 Cal.App.4th 273 (Artal).) In that case plaintiff Artal awoke from pelvic surgery on May 8, 1998 with severe and persistent throat pain, which she believed was related to the fact she had been intubated for general anesthesia. She had been advised she might experience hoarseness and a sore throat for 24 to 48 hours after surgery and was instructed to call the doctor if medication did not relieve the pain. (Id. at pp. 275—276.) During the next 18 months, Artal saw at least 20 specialists because of the pain and received a number of possible diagnoses. On May 6, 1999, she told a doctor she believed the pain was related to some sort of trauma caused during intubation. In November 1999, she underwent exploratory surgery, which revealed a fracture to the thyroid cartilage and which Artal (not any physician) attributed to the intubation. (Id. at p. 276.) Artal filed suit on October 27, 2000, less than a year after the exploratory surgery, but more than a year after the intubation. The trial court ruled that the action was barred by the one-year statute of limitations because Artal had facts upon which to base her suspicion of negligence within the statute of limitations. (Id. at p. 277.)

The Court of Appeal reversed reasoning that although Artal suspected there was a connection between the intubation and her throat pain, the evidence did not support the conclusion that she "knew, or by reasonable diligence should have known, that the throat pain was caused by professional negligence," as is required in medical malpractice cases. (Artal, supra, 111 Cal.App.4th at p. 280.) The defendant in Artal argued based on Jolly, that Artal was on inquiry notice of her negligent intubation claim so as to commence the statute of limitations and thereafter, specific facts could be developed through pretrial discovery. The court stated, "The flaw in this argument is that it presupposes that litigation would have been effective in revealing the information which Artal needed to support her case. However, there is nothing in the record to support the notion that Artal could have developed the necessary facts through routine pretrial discovery, such as by deposing Dr. Allen or by propounding interrogatories, or by consulting additional experts." (Id. at p. 281.)

We find plaintiffs reliance on Artal misplaced. Artal is distinguishable because it is a medical malpractice case and the medical malpractice cases upon which that decision is based establish a different test for the running of the one-year statute of limitations than that applied in standard negligence cases such as the one at bench. That is, Artal holds that the one-year medical malpractice statute does not begin to run until the plaintiff has knowledge of her injury and actual knowledge of its negligent cause. There is no such requirement for the running of the one-year statute in ordinary negligent injury cases, where the requirement is that the plaintiff suspects or should suspect negligent injury. (E.g., Jolly, supra, p. 1110; accord, Norgart v. Upjohn Co., supra, 21 Cal.4th 383, 397—399.)

Conclusion

The trial court did not err in taking judicial notice of the allegations in the original complaint when it ruled on the demurrer to the first amended complaint. In light of the courts findings that plaintiff failed to explain inconsistencies and omissions, and that in any event she had been on inquiry notice at least in 1999, the court properly sustained the demurrer without leave to amend.

Disposition

The judgment is affirmed.

We concur: Marchiano, P.J., Swager, J.


Summaries of

In re Surgical Sutures Cases II

Court of Appeals of California, First Appellate District, Division One.
Nov 18, 2003
No. A101045 (Cal. Ct. App. Nov. 18, 2003)
Case details for

In re Surgical Sutures Cases II

Case Details

Full title:IN RE SURGICAL SUTURES CASES II.

Court:Court of Appeals of California, First Appellate District, Division One.

Date published: Nov 18, 2003

Citations

No. A101045 (Cal. Ct. App. Nov. 18, 2003)