Riley v. Presnell

O’Connor, J.

(dissenting). “Reasonable notice that a particular product or a particular act of another person may have been a cause of harm to a plaintiff creates a duty of inquiry and starts the running of the statute of limitations.” Bowen v. Eli Lilly & Co., 408 Mass. 204, 210 (1990). That principle, generally known as the discovery rule, has sometimes been expressed by the statement that a cause of action does not arise so as to start the statutory limitations period running while the wrong is “inherently unknowable.” Olsen v. Bell Tel. Laboratories, Inc., 388 Mass. 171, 175 (1983). White v. Peabody Constr. Co., 386 Mass. 121, 129 (1982). Friedman v. Jablonski, 371 Mass. 482, 485 (1976). Hendrickson v. Sears, 365 Mass. 83, 90 (1974). The clear import of that language is that, when a person with ordinary wisdom and judgment would be able to know that the conduct or product of another may have harmed him or her, the statutory limitations period has begun to run in the absence of an applicable statutory exception (tolling provision). I agree with the court that no such exception obtains in this case.

*252 In other cases, the court has expressed the discovery rule somewhat differently, but nevertheless as imposing an objective test that prescinds from the mental, emotional, or psychological features or characteristics of the individual plaintiff, regardless of how those characteristics may have come about. For example, in Massachusetts Elec. Co. v. Fletcher, Tilton & Whipple, P.C., 394 Mass. 265, 267 (1985), the court, citing Olsen, supra, White, supra, and Hendrickson, supra, put it that, in determining when a cause of action has accrued for statute of limitations purposes, “we have been concerned with the question whether a plaintiff knew or had reason to know of the existence of the cause of action.” In Franklin v. Albert, 381 Mass. 611, 612 (1980), the court announced that “a cause of action for medical malpractice does not ‘accrue’ under G. L. c. 260, § 4, until a patient learns, or reasonably should have learned, that he has been harmed as a result of a defendant’s conduct.” Finally, in Bowen v. Eli Lilly & Co., supra at 210, we tested the accrual of the plaintiff’s cause of action “by what a reasonable person in her position would have known or on inquiry would have discovered at the various relevant times.”

According to common usage of the English language, an inquiry concerning whether a plaintiff “had reason to know of the existence of the cause of action,” see Massachusetts Elec. Co. v. Fletcher, Tilton & Whipple, P.C., supra at 267, is simply an inquiry about whether there was a rational ground — a logical basis — for the plaintiff to conclude that he or she had a cause of action. Again, according to common English usage, the question whether a plaintiff “reasonably should have learned [] that he has been harmed as a result of the defendant’s conduct,” see Franklin v. Albert, supra at 612 , asks whether, had the plaintiff exercised sound judgment based on available information, he would have discovered his cause of action. Until now, the test in this Commonwealth for when a cause of action has arisen for statute of limitations purposes has focused on the realities perceptible to persons other than the affected individual, not on the facts as they may be perceived by the affected person. That is to *253 say, heretofore our discovery rule has invoked an objective, not a subjective, test.

Bowen v. Eli Lilly & Co., supra, suggests nothing different. Bowen did not involve a plaintiff who claimed mental impairment as an obstacle to her discovery of her cause of action. The court considered whether, on the summary judgment record, “a reasonable person in the position of the plaintiff would have been on notice that her mother’s ingestion of DES may have caused the plaintiff’s cancer” (emphasis added). Id. at 208 . In the context of the facts, the court clearly was not suggesting that, had the plaintiff been mentally impaired by reason of the defendant’s conduct or otherwise, that fact would have been one of the circumstances to be taken into account in determining whether the cause of action had accrued. The court’s focus was on the information available to the plaintiff, and the court assumed that the plaintiff was a person of sound judgment. Contrary to the court’s suggestion, Bowen is not authority for the proposition that, apart from statutory tolling provisions, a plaintiff’s post-incident intellectual deficits may postpone or prevent the running of limitations periods. Furthermore, none of the cases from other jurisdictions cited by the court, ante at 247-248, even suggests that a plaintiff’s intellectual or psychological deficit is to be considered in determining when a cause of action has arisen for statute of limitations purposes. None of those cases suggests that a discovery rule that is subjective in character fairly accommodates the concerns with which statutes of limitations are designed to deal.

The new rule, as well as the type of cases to which it ultimately will apply, is far from clear. However, it appears that, when an action to which the rule applies is brought after the limitations period, measured from the occurrence of the wrongful injury, has passed, the questions for the jury concerning whether the case was timely brought will be very similar to the questions involved in the determination of liability and damages. The jury will decide what the defendant’s conduct was, and then will decide what mental or psychological deficits were caused by that conduct. If the jury *254 decide, perhaps many years after the relevant events, when evidence has been lost to the defendant or has become so stale as to be unreliable, that the defendant’s conduct altered the judgment of the plaintiff in such a way that the plaintiff could not recognize (as a reasonable person would) that he or she may have been harmed thereby, the jury will then proceed to reanswer the same questions, and little more, in assessing liability and damages.

Protracted delay, with its attendant loss and staleness of evidence, results in unfair litigation. A discovery rule that postpones the commencement of the statutory limitations period until the asserted wrong is inherently knowable, an objective standard, usually implicating only a question that is simple to answer, 1 reasonably accommodates the legitimate interests of individuals seeking remedies for their injuries without imposing unfair burdens on defendants. The rule announced today, however, which is largely subjective in operation and requires the resolution of complex factual questions perhaps many years after the occurrence of the events complained of, invites the very injustice and instability that statutes of limitations are designed to prevent.

“Statutes of limitations are ‘vital to the welfare of society. . . . They promote repose by giving security and stability to human affairs.’ Franklin v. Albert, [ 381 Mass. 611, 618 (1980)], quoting Wood v. Carpenter, 101 U.S. 135, 139 (1879). They also ‘encourage plaintiffs to bring actions within prescribed deadlines when evidence is fresh and available.’ Franklin v. Albert, supra, citing United States v. Kubrick, 444 U.S. 111 (1979).” Olsen v. Bell Tel. Laboratories, Inc., supra at 175. The court’s holding, as I see it, “create [s] an unacceptable imbalance between affording plaintiffs a remedy and providing defendants the repose that is essential to human affairs.” Id.

*255 This action was instituted on March 1, 1985, more than four years after the plaintiff was told by a second physician that he had become addicted to Valium while under the defendant’s care and had received substandard treatment from the defendant. By that time, at least, the plaintiff was on reasonable notice that he may have been harmed by the defendant’s treatment. The wrong for which he brought this action clearly was not inherently unknowable at that time. No contrary facts were presented in connection with the defendant’s motion for summary judgment. There being no other cause for reversal, the motion was correctly allowed and the judgment should be affirmed.

Frequently, the answer to the question whether a wrong is inherently unknowable is sufficiently clear that the court can supply the answer as a matter of law. See, e.g., Massachusetts Elec. Co. v. Fletcher, Tilton & Whipple, P.C., supra at 268; Friedman v. Jablonski, supra at 90-91 .