Petition for Writ of Certiorari — Simmons v. Washington ex rel. Carroll

Supreme Court brief1963

Ask Donna

What actually matters in this document.

Text

- Office Supreme Court, U.S

RA Sap

4o @

APR 26 IS.

‘ JOHN F. DAVIS, CLERK

IN THE | | .

Supreme Court of the United States

OCTOBER TERM, 1962 —

No JOAS \

NATHAN CARL SCHWARTZ, | >

Petitioner,

against

HEYDEN NEWPORT CHEMICAL CORPORATION

and HEYDEN CHEMICAL CORPORATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO’ «

THE COURT OF APPEALS OF NEW YORK. ’

™

Arakp'S. JULIEN,

Counsel for Petitioner,

2 Lafayette Street,

New -York, N. Y.

Davin G. LvuBELL, ®

LuBELL, LUBELL AND JONEs, ; :

165 Broadway,, ° a

New York, N. Y., :

Of Counsel.

2°

Jurisdietion \ Agu : phesecite a =

INDEX

4 )pintens Below

(ile ~tios Presented

Contitatiols il P rovisions Involved

Statement Saltese De PAR OHE Dp nee

Reasons for Granting the:Writ 0000...

* Post Where the injury sustained is inherently

unknowablesat the moment. of Hiapaet. the applica.

tion of the perfod of limitation from that time is

so Unreasonable as te constitute a odemial of due

proc iss

Pons 1l---Where it is he 4 us a matter of iow that

Injury oecurred at the momegt of injection of a

carcinogenic. substanée and petitioner's. complaint

is therefore dismissed a® time barred. petitioner is

thereby denied a hearing mandated by due process

on the issue of fact as te when iajury actually

OUCUPHEU © ......-..,<000:00 Sr ‘ 2

Concfasion

APPENDIX

Mpinion of Supreme Court, New York County, State

of New York — eigen ora seen ~

re)

PAGE

Opinion,and Diss« nting Opinion of Court of Appe “als *.

of A I a Or a

5 ro]

Silesia and Amended Remittitur of Court) of

Appeals lp. Bs oC. Sets eee “

Ida

3 2 .

Cases: - ,

2 - 2, PAGE

Ayers v. Morgan, 597 Pa. 282, 154 A. 2d 788 nnequoessece a

ac pabinals o.. %. Hill, 281 U. S 673, 681,

EES nuiecstceoseehubeceote, tT et, MR TO sechgaleiaieeniia. om

aoe Bi ralltiions Co. v. Me ckley, 284 F. 2d 797 ........ 8

— Coots v. Southern Pacific Co., 49 C. 2d 805,, 322

Git SBR aan Yay MULAN eA ely OP IEE HA fon 9

Fernandi vy. Strully, 835 N J. 434,173 A. 2d 277 .. /- °g

Handler v. Re mington rms, 144 Conn. 316, 30

a ee ee as 8

*- Herbert . Louisiana, rate > pee sonseaces 13

Holden v. Hardy, 169 U.S. 366, 390 2. » OATH Shee |,

Hutchison vy. Semler, 227 Or. 437, 361 P. 2d 808 .... 9

Milde vy. Leigh; 75 N . D. 418, 28 N. W. > BS | 12

Powell vy. Alabama, 2 7U. S. “$5, 68 .....2.... Re 11

Riceniti v.,Voltare Tubes, Inc., 277 F. 2d 809 ....._.. 8

Slochower v. Board of Ea. of N. ¥., 850 U.S S. 551... 13

United States v. Reid, 251 F. 2d 691... ae ee

Urie v.. Thompson, 337 U.S. 163 ...............0..-c--ccececeeee 6,7

Wheeler v, Jackson, 137 U.S. 245, 299, 208 =: EAE ONC 6

Constitutions and Statutes:

United States Constitution, Fourteenth Amiend-

MUI sacdccshnu so titaceststecriclenes. are Jig ictatasau caer 2, & 4,9

Ba ele re IU seasteoncpcehecahcaciazcuegks’ oven moeecaaces 2

Miscellaneous: i . | >

2 Cooley, Constitutional Limitations, p. 764 (Sth

UR Eraser ustiacaiceo a ca aduhenigiaehl dk ecoue nated otitis _ oe

Comments, 1954 Wis. L. Reve 377 cect ccecqeeeeeeee 9

2 Framer & Briedman, Products Liability, Bowtie

WES) FE 9

65 Harv. L. Rev. 1177, 1207 (1950) i et eae =

| IN THE - | :

Sipreme Court of the United States

OCTOBER TERM, 1962

* No.

‘3

”

: ay ee ey NATHAN Cari ScHWARTZ,

Petitioner,

. ¥

aqainst

‘ HeypeN Newport CueMICAL CORPORATION

and Hrypex CHemicat Corporation,

. Respondents. :

a Batis gay

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS. OF NEW YORK

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

‘Petitioner prays that a writ of certiorari issue to review

the judgment of the Céurt of Appeals of the State of

New York entered in the above entitled case on January

23, 1963. |

Opintons Below.

The opinion of the Supreme Court, New York County,

State of New York, on respondents’ motion to dismiss the

complaint on the ground that maintenance of the action

was time-barred by the statute of limitations is printed

‘2

in. the Appendix and is reported in 30 Mise, 2d 663, 219

N.c¥eS. 2d 98. No opinion was rendered by the Appellate

Division, First Department, State of New York ‘in its

_ memorandum decision reported in 15 ‘App. Div. 2d 650, —

224 N. Y.S. 2d 270. The opinion of the Court of Appeals |

of the State of New’ York, printed in the Appendix, is

reported in 12 N, Y. S. 2d 212. The Court of Appeals

amended remittitur, printed in the Appendix, has not been

reported officially or unofficially but was published in the

New York Law Journal, April 1, 1963.

i- e . . a oe

Jurisdiction “4

The judgment of the Court of Appeals ef the State

of New York was entered on January 23, 1963. The star. .

isdiction of this Court is invoked’ under 28 ULS.C. Section

@ POT (3).

Whether, in an action for personal injuries caused by

negligence, a helding that the statute of limitations does

‘snot commence to run from the date of discovery of an

“injury, unknowable in nature and non-discoverable at tie

time of the negligent act, the injection into petitioner of

a carcinogenic ‘substance, and that cas a matter of Jaw

. injury must be held to have occurred at or about the time

-of said injection, violates the Due Process Clause of the

Fourteenth Amendment where:

1. There are no facts, in the reeord showing that

petitioner actually sustained bodily injury at or

about the. time ‘of injeefion one _than subse-

quently theggto. 64 a

Aaiy injury petitioner sustained at the tine of inz

jection was inherently unascertaigable at that time.

eo. The case ix decided on the pleadings alone, thus,

in effect, denying petitioner a hearing on the issue

oof fact as to when he actually ‘Sustained bodily

injury.

Constitutional Provisions Involved —

The Due Process Clause of the Fourteenth Atme@diment

to the Constitution of the United States:

“!Njor shall any: State deprive any person of

life, liberty, or property, Without due process of

ae. * > _ .

3 7

Statement of the Case

This action was instituted in the Supreme Court, New

York County, State of New. York on oor about November?

20, A959 by. petitioner to reeover damages top negligence

—and breach of warranty. Phe complaint alleged that:

By geason of respondents’ negligence: the petitioner, a

practicing attorney of the Commonwealth of Pennsylvania,

had his left eve amd>part of his facial bonds removed: be-

cause of carcinoma of the deft maxillary antrum

While petitioner was jn the Armed *Forces, a chemical

known as “Umbrathor’, mamffactured and sold) by re-

_spondents, was inserted in his sinuses in order to X-ray

them at a Naval hospital in 1944.

In or about February 1957, as aoresult of the remains |

- a ° ° od ed . ¢ o ig

of the “Uiabrathor™ within petitioner’s head. “carefoma

‘developed wrespuiring his operation and: loss of the leftveve.

It was petitiover'’s theory that only in or about Feb.

ruary, 1957 was he able to discover that he had careimoma

of his deft amaxiilary antrum. Only in’ W5¢) did) the

carcinoma manifest itself (App. dla, Complaint, Par.

“Ninth”.

.*)

° ° 7)

The “petitioner contended that) the respondents were

negligent in that they manufactured and sold “Umbrathor”

for use on human beings wheti they should have khwown

that the same was radium active and carcinogenic and

further that after they should have learned that the

coinmodity was dangerous they neither recalled it) from

public use rior warned the members of the public who had

been exposed to it, of its latent lethal potential.

“The Supreme: Court, Special Term, New York County,

dismissed tHe action as time barred and the petitioner

appealed. The Supreme Court, Appellate Division, First

Department, unanimously affirmed without opinion and

‘the petitioner appealed by permission ‘to the Court of

Appeals, State of New York. The Court of Appeals held

that “the action was barred both under the three year

limitation period applicable to actions for negligence and

‘the six year period applicable . to actions for breach of

warranty.

In its argument before the Court of Appeals, petitioner

argued that it was entitled to a hearing on the issue of

fact as to when injury was actually sustained and that any

dismissal of the action on the pleadings alone would there-

fore deprive petitioner of due process of law in violation

of the Fourteenth Amendment to the Constitution of the

United States.

On motion by petitioner after judgment, the Court of

Appeals amended the remittitur by adding thereto the

following: ’

“Upon the appeal herein there was presented and

necessarily’ passed upon a question under the Con-

stitution of the United States, viz: Appellant. con-

tended that the statute of limitations commenced to

run in 1957, when he tirst was able tefdiscover an

cd injury caused by a 1944 injection of a carcinogenic

substance, and that a holding by this court as a

. 5

Miatter of law that the actionable injury was? sus

tained prior to that time would deprive appellant

of due process of lawoin violation of the Fourteenth

Amendment to the United States Constitution. “The

Court of Appeals held that in an-action for personal

injuries caused by negligence the eause of aetion

accrues and the statute of Tiinitations commences to

run when the negligence produces injury and thet

the injury occurred when the harmful sabstance

first. acted. upon appellant's hody at oor about. the

time of injection in 1944, appe Mant” x lack of knowl

edge notwithstanding.”

Reasons For Granting ‘The Writ

The decision of the Court of Appeals of the State of

New. York should be- reviewed because it. erroneously

decided an important question of federal constitutional

law which: has not yet been settled by this court, viz: th:

extent to which the Due Process Clause of the Fourteenth

Nmendment of the United States. Constitiition limits a

state’s power to deprive a claimant of a ps rsenal injury

cause of action on the ground of the running of the period

of limitation despite the fact that injury is not ascertain.

able at the moment of the negligent aet and claimant is

. prevented from proving that the injury in fact resulted

after impact.

POINT 1

Where the injury sustained is inherently unknow-

able at the mgment of impact, the application of the

period of limitation from that time is so unreasonable

as to constitute a denial of due process.

It is Well established that all statutes of limitation must

proceed on the idea that the injured party as had full

opportunity afforded him to try his right in the courts.

—

6 Zee 4d a “&

4 Pao

A statute cduld not bar the existing right? of clainufnts

without affording this opportunity: if it should attempt

to do so, it, would not be a statute of limitations, but an-

unlawful atte Impt to .extinguish rights arbitrarily, what-

ever might be> the purport of (its. provisions. 2 Cooley,

Constitutional Limitations, page 4 (Sth ed. 1927

As this Court stated in Wheeler v. Jackson, Ibe U.S.

345. 2, aes ff » ‘

“It is the settled doctrine of, this court, that the

. Legislature ma prescribe a limitation, for the

bringing of suits** * * provided in each case, a

v reasonable timg, taking all the circumstances int6

consideration be givgn * * * ‘for the commencement

of suit before the bar takes effect. :

. * am «

’ ; aE . :

“A Statute of Limitation cannot be said * * *

to deprive one of property without due process of,

» law, unless, * * * it unreasonably limits the appar

tunity to enforce that right by suit.”

It is petitioner's contention that in order for the oper-

ation of a statute of limitations to meet the constitutional

criterion of reasonableness, the injured “clataant must.

have liad an opportunity to discover the fact that he hag

actually been injured. Surely itis unreasonable for put-

poses of the Due ‘Process Clause to hold that the period of

limitations has run in a cease like the instant case where

the carcinogenic qualities of the injection petitioner

receReed in 1944 were not discoverable until 1957, after the

limitation period had elapsed.

The instant case, presents to this Court _for apparently

the first time the opportunity to dete rine to What extent

the Constitutional requirement of reasonableness applies

to a state determination of time of accrual of a cause of

action and whether such requirement is not met. where *

a r=

- ’

(

Li ~ . ’

the period of dimitations commences at a time when Fe

fact of injury was unknowable, © As shown immediately

below, past decisions have frequently foundaghat Tre cans:

of action commences upon discovery or discover rakility

These decisions” we re based upon a fundamental sense off

justice and fairness. “That this.sense of justice and’ fait

Hess is also a constitutional requirement of die process 1

petitioner's contention herein. . .

In the leadige case of I re ‘i Thonipson, i 4. We.

the United States Supreme Conrt ww: is faced with the

problem of establishing when the period 40) lindtations

commenced totrun?where the injured plaintiff had con-

tracted silicosisc a slow growing, progressively worsening

diseasé, The plaintiff there had been eXposed® to. siltea

dust since 1910, ‘Phe action was filed on November 24,

O41, within three vears after the plaintiff had discovered

“th: iu, he hard silieosis, The court held dhat the iin

of limitations commen ‘dd to run when the. Injured plain

tiff discovered” that. he had silieosts. The Supreme se

after a thoraugh “analysis. unequicecally rejected — the

arecninent that the limitations period <horfld - conmenes

from the date the injured plaintiff started to breathe

the silien dust. Uhe court emphatized the unknown and

inherently unknowable qiature of the injuries sustained.

It stated thateif plaintiff was to be barred by the statute

of limmtations (at 557 U.S. 169):

“Tt would mean that at. sene past moment in

time. unknown and interently unknowable even in

retrospect, Ufie was charged with knowledge of

the sloweand tragic ‘disintegration of his lunes.

Sunder thise view Urie’s failure toediagnose “within

the applicable statute of limitations a disease whose’

sW@aptoms had not vet obtraded on his consciousness

would constitute waiver of his right to compensa.

tion at the ultimate day of, discovery and disability.”

P ‘ _—.

The.

AE §

court) speciically placed its decision within the

: salutory purpose of a limitation statute, stating wt page

170:

@-. zt

“Nor do we think those consequences can be

reconciled with the traditional purposes of statutes

limitations, which conventionally require — the

assertion of claims within a specified period of

time after notice of the invasion of legal rights.

The record before us is clear that Urie became too

ill to work in May of 1940 and that diagnosis of

his ‘condition was accomplished in the following

weeks. There is no suggestion that Urie should

have known he had. silicosis, at’an earlier date.”

a *

To the same effeet, it was held in Riccuiti v. Voltare

Tuhes,

Tne. 277 F.2d S09 (2nd Cir, 1960), that the statute

of limitations began to run when the plaintiffs disease

was diagnosed, the -court. statiitg, in language directly

applic

See

(Gthr ¢

liosis.

thle to the facts in the case at bar, at page SIS:

“We think it unreasonable to hold) that the

statute of limitations begins to run against an in-

jured, person at a time when he does not in fact

know, and could not with the exercise of reason-_

able care and diligence know, what hig injury ‘is.

elo so hold would nullify any right to recover, for

many serious hut -slowly and insidiously develop-

ing diseases. We hold, the ‘refore, that in this case

the statute of limitations M@gan to run on January

27, 1956, the date -on which the plaintiff's disease

was diagnosed, unless the defendant can show that

the -plaintiff should, in the exercise of reasonable

diligence, have -earher discovered the nature of his

disease.” _

also Brush Beryllium Co. v. Meckley, 284 F.2d 790

‘ir. 1960), eee the plaintiff had contracted beryl-

through: exposufe to noxious gases over a period

9 s

2 ¢

* 9

of years, through’ defendant's negligence. The federal

court held that the Ohio statute of limitations of two

years for personal injuries only commenced, to run “when

the aceumulated effects of the deleterious substance mani-

fest themselves” (at. p. S00),

The sound reasoning of the foregoing wuthorities, has

hyena M followed by many state courts Whieh have held “that

the limitations period in injuries which’ are unknowable

and undetectable, such as in the ease at bar, begins to

run from the date ole discovery of the ig

See, ed: Fernand vo Strally, 35 N. db. 454, 173 AL 2d

PTT (1901): Mandir ve Re on dee: 144 Conn. 316,

OAL 2d TOR WONT): Layers ve Morgan, 397 Pa. 282, Lod

A. ad ass (1900): Mafehison ve Semler, MT Or. 40. Obl

DP. 2d 803 (I96D): Coots ve Southern Pacific Co, 44ee, 2d

805, 382 PL 2d 400 (1958).

Law journals and treatises have uniformly _— that

Where the injury sustajned is inkerenthy unknowable and

UnaseM@tainably the period of limitations should commence

from the’ daie of discovery of the injury.

03 Harve L. gv. BM lo pments in the Law-Statut

of Limitations” (V7. 1207 (1950), states in particularly

appropriate language : a

“Although the fact that most courts will “Hat We “rin

the period until there has been some innipoavet will

aissttre that in mests citses the pinintiff will know

of his injury before the reme. as barred, where

the initial invasion is of an cinherently unknow-

able’ type the period should be postponed-untal the

plaintiff -shduld reasonably learn of the cause of

action Whether the defendant's conduet ceases before

or after®the manifestation of harm: Thus. where

the harm develops gradually * * * limitations should

» . run from the: manifesPation of substantial harm

rather than, froin the first impact * * *. Ne ve rtheles

a aX

some courts have begun the period at the time of

the impact, for instance? the inhaling of silica dust

. : e

"te Tt would seem preferable, in all cases where

the harm is of a gradually jnereasing and inherently

ad .

unknowable nature, to delay commencement of the

statutory pertod until manifestation of substantial

harny.”

See alse, Comments, 1994 Wis. Le Rev. 277.

Finally, in the leading text, 2. Frumer & Friedman,

Products Liability, Section SYOL [5] page 04, it is stated:

“It is, of course, clear that a, product can eause

a disease which will not manifest itself immediately

after exposure to the disease. Tt would) seem: that

in such cases pliintiff’s cause @f action should not —

‘acerue until his disease was diagnosed ‘or until he

should have discovered the nature of his disease.t It

has been sos held ing ao mumber off fairly recent

. “a. oh]

products Hability. cases,

POINT II

here it is held as a matter of law that injury

occurred, at the moment of injection of a carcinogenic

substance and petitioner’s complaint is therefore dis-

missed as time-barred, petitioner is thereby denied a

hearing mandated by due process of the issue of fact

as to when injury actually occurred.

As this Court has pointed out on Tumerons oecasions,

the true Meaning of the concept of due process, while

diticidt of d@Anition, encompasses within its confines the

right to be heard or the right to a hearing.

“Reeognizing the dificulty in defining, with exaet-

ness, the phrase ‘due process of law. it is certain

that these words imply a conformity with: natural

and inherent principles of justice, and forbid that

one man’s property, or right to property, shall be

I |

- &

taken * * * without an opportunity of being heangh

in his own defense.” Molden x. Hardy, 19 UL S.

Bo6, OOO,

The ernciat tipertance of attording an opportunity: te :

be heard was made clear by Mr Justice Brandeis, speak

ine for the Court. in Brahe rhotl Baris Co. ve Mill, 2s) o

U". S. 673, 6S1,-GS2: .

> "Quro present concern ts solely with the ques

my Whether the plaintitf has been accorded due

prokess in the primary sense. whether it has had 2

UN Oppertumity te present its case and be heard in

: its suppert. "7 PS But while dois fer the tat

eourts to deterniine the adjective as well as the

substanti®e law of the State. thes qiust, incse doing,

accord the parties due processpef law. Whether -

acting thronueh its judiciary aor through its legis

lature, a State iiay not deprive, aye rson of all

existing remedies. for the enforpfivent of alright.

which the State Was no power to destroy, unless §

there is, or was. atferded to him some real oppor

‘tunity to proteet it?

So, too, it was hed: . x

“It ohas never been doubted * * * that matiee and.

hearing * * * eonmstetute basie elements of the con. -

qptitutional requiggtent of due process of daw. ,

Powell vo Alabama, 2870 U.S. 4a. 6s,

It ix ervstal clear that inasmuch as the complaint in

the present ease was disinissed on othe pleadings alone,

petitioner was never afforded an opportunity to be heard

‘ on the vital Inste ool iaet as te When iE | Sty Wats ibe d dete

-sustained. The unwarranted holding that as ao tuatter of

law: injury must have oecubred at the time of the aet of!

. i

ye ; SR

injection is arbitrary and highly unreasonable inasmuch

as the record is totally devoid oP any facts showing that

damage resulted at the time of injection!

Directly applicable is the decision of the Fifth Cireuit

in Usnited States v. Reid, 251 FB. 2d 69L (oth Cir, Tos),,

where the plaigtiffs sued on the basis of the defendant's

failure to Pactnd report a tuberenlin condition which

off plaintiff's X-rays. Plaintiff discovered the

condition within the statutory period of two years to

Dring the action but filed the action more they two years

after the negligent failure to propetly read the N-rays.

The court held the statute of limitations was not a har,

The court states at pages 694-699:

Was shown

ro]

“But if is not the wrongful, 10, negligent act,

which gives rise to the clatn, For there must

‘he damage caused by it. Until there some damage,

there ix no claim and certainly a statute preserib-

ing the time in which Suit must be filed (whether

as a condition of right or remedy) can never oper-

ate frior to the time a suit could be permitted.”

(Emphasis supplied.)

"We know that immediately upon Dr.” Lowe's

viving Reid the wrong advice, no harm from it had

vet befallen Reid. All that occurred was that Reid

heard words “words Which were wrong and negli-

gently spoken— but without injiirious consequences

of any kind at the moment * * *. , =a the

precise moment, we know absolutely that it was

some time later——between March 10, 1949¢md-Febru-

ary 16, 1950 that the first: injurious consequence

of faulty advice would have occurred.”

Cf. Mildi v. Leigh..75 N.D. 418, 28 N.W. 2d 530 (1947) ©

(husband's action for loss of serviges for defendant-

doctor’s negligent operation to sterilize’ wife only began to

rim when wife subsequently gave birth to a ¢hild).

aca |

ots

of certiorari sho

eet Res - fully submitted,

“e sen al

Similarly, in the case at bar, there is no rational basis

for holding that. any injurious consequences resulted at

the moment of injection. A carcinoma did not thereupon

immediatelyWcome about, dut rather developed gradually

over the course of many vears. Thus, it) follows that.

petitioner was not damaged until some point in time tar

bevond the imstant of injection. Any other conelfisien

would deny petitioner that protection from arbitrary action

Which is the very essence of due process of law. Slochoiwer

v. Board of Edo ot NOY S50 US. 551.

It ix therefore submitted that petitioner should be given

his day imccourt to present proof showing that in facet no

injury: was sustained by him in an ascertainable: sense

until WT. Omty im this way will at be possible to apopota

the appropriate period of limitation in a manner consoneént

with the basie coneepts ef due process fundamental

principles of liberty and justice which lie at the base of all

our civil and political institutions.” Merbert vo Lowsiana,

242 U.S. Siz.

CONCLUSION ee

granted.

—_ a geet

Aurrep S. Jigs

Connsel for Pi dition: r..

‘ 4

Davin Gi. Loosen. e

Lope. Lene. and slows

e (): Couns.

Dated: New York. New York ay hae

April -. 1}

APPENDIX

Opinion of Supreine Court, New York County,

State of New York

Defendant moves for disinissal of the compbaint tpon

the ground that aWintenanes of the action is time-barred.

In three causes of action based on negligence, breach of

Warrant’ by advertising, and breach of warrant d, plaintil

claims that his claim of right ie recover for personal

injuries arese upon discovery of the negligencee and

breach of warranty, While a member of the Armed

Foreess “Uimbrathor” a product) manufactured by the

defendant. was injected into plaintiffs body to make

the sinuses pereeptible in Norays. A portion of the product

socinserted in Td, wax met removed gfter the N-ravs, «

remained ino his head. caused a canecrous condition for

which he was operated in POT. resulting in the loss of his

Seftoeve. Tis alleged that the existence of the careimoma

was discovered m= February, Pos.

There is a eonttiet oof opinion with respeet te the prinet.

ple invelved in the Federal and several State jurisdictions,

In New York the law has been setthed in Schmidt vo Mer-*

chants Despatch Transportation Company (270 N.Y. 287).

There the plaintiff had inhaled foreign substances in the

form of dust and as a result contracted a disease of the

lungs. Inthe course of its opinion, the court stated, at

pate aM: *Nceor ingly. the plaintiff claims that his cause

of aetion acerucd, not at the time de inhaled the dust

nerve than three venrs before the action was commenced

but at the time when the dust, so inhaled. resulted ino a

disease of the lungs and that date. it is said, can be

determined only by medical testimony. * * * There can

——

}

ee ¢

oa y anus, Oe

Opinion of Supreme gout, New, York County, State

‘ of New York ;

be no doubt that a cause of action acerues only when the

forces wrongfully ‘put in motion produce — 2? tae

does not mean that the cause of action aécrues only when

the injured person knows or should know that the fijury

has occurred. The injury occurs when there is & wreng-

ful invasion ofpersenal ‘or property rights and then the

cause of action accrues. Exeept in cases of, fraud where

the statute expressly provides otherwise, the statutory

period of limitations begins te run from the time when

liability’ for wrong has arisen even though the injured

party may be ignorant of ethe existen®e of the wrong or:

‘injury. * * * The injygy te the plaintiff was-complete when

the alleged negligence of the defendant caused the plaintilf ©

to inhale the deleterious Must. For that injury, including

all resulfing damages the defendant was then liable. The

disease of the hmgs was a consequenge of that injury. The

result might be delayed’or, perhaps, even by good fortune

averted: nevertheless, the- disease resuited naturally, if not

inevitably. fron a condition created in the plaintiff's body

through the defeffant’s alleged wrong. It cannot be

doubted that the “plaintiff might have begun an action °

against the defendant immediately after he inhaled the

dust which eaused the disease.” a

Gile v. Sears Roebuck & Co. (281 App. Div. 95), is not

to the contrary. There the defendant had in 1948, installed

a floorboard which it had left in a loosened condition. In

1949, plaintiff sustained injury when she was caused, to

fall on the loosened floorboard: The injury which resulted

from any breach in the installation of the floorboard in

relation to the performance of the contract is different

from the injury sustained at the time of the occurrence

Opinion of Supreme Court, New York County, State

; of New York :

when, for the first time, the chain im <uit there arose, The

injury in’ the instant CAC and,

action, arose When the ‘substance manufactured by the

defendant Was injected into the plaintiffs body and the

conseque tial injury tlows therefrom and not from any

act oce urring there: ifter.

ee) hatever yay be said concerning the claimed injustaée

of the rule as enune iated i a the Schmidt case, this court

eae heels canclugled “thereby and constrained te

‘ant the motion. Defendant is awarded judgment dis-

missing | the complaint.

therefore the: cayse of

dia : :

Opinion ard Dissenting Opinion of Court of

Appeals of New York ese

“Berke. Judge. ;

‘ ?

The sole issue on this appeal, by leavesof this court, is

Whethersan order granting defendant's motion te ‘dismiss

the complaint on the ground that the? action ‘is barred dy:

the’Statute Of Limitations was proper. We think if was.

In 1944. when plaintiff was ina Naval hospital. & prod

vet ealled “Umbrathor’, manufactured hy defendant, was

inserted into plaintiff's sinuses for the purpose of making

them perceptible in) Neravs. Some ot the substance

allegedly remained ino plaintiffs shead and produced a

carcimomia requiring the removal of aneve in PT. This

netion was commenced im T95o. Plaintit® asserts three

different bases. of liability for the injury allegedly caused

bx* defendant's product. The substantive merits are not

now before us and the sole question is the availability of

the defense of the Statute of ‘imitations respecting each

ssserted basis of liability. 4

The second and third causes of action are exsentrably

the same. The seeond alleges iat defendant publiely

advertised that Uibrathor was fit for use on humans and

that it had been adequately tested and that these represen ;

‘ations were false im that the tests were inadequate and te

product Was UWnsate for human use. The third cause of

action alleges that defendant warranted to sthe arnyed

‘forces. (presumably impliediy) that Uiobrathor was mide

chantable and fit for human use, Where the warranty 2

as to suitability of the product sold. the limitation’ rns

frown the date of sale (Allen v. “Podd. 6 Lans. 222 (1872):

Blessington ve MeCrory Stores Corp. 505 ey ea: ta

11] NsEiwd 421. 425; Liberty Mut. Ins. Co. v. Shetla Lenn.

“a nt

Pr ,

Operon and: Dissenting a at € anrt «at Ln 1!

° vase are bee

Inc., 18D Mise. 689, GOAT NOY S.2d TOT, 708, TO, atid. 270

App. Div. Sta, 61 NAYS 2d Sood. Th hight of these heed

sions the courts helow were correct in holding the warrant,

enuses-of action barred under subdivision Poof seetion 45

“of the Civil Practices Net as having been brought more than

iN Veurs after the warranty wis allegedly breached. | e

Plaintiff aise alleres that defendant was neglient in

that at should hawe Knew of the radioactive and eareine?

venice properties of Uinbrathor at the time it was mir

keted: and, further. that defendant was neeligent in that

it failed to warn the publie apd asers of Vinbrathor of it

dangerous properties when it tkmew-sor shoald have Enewn”

of such dangers, and that sueh dut® to warn Was a contin

ing one. First. we do not think. on the facets of this one.

the. plaintiff can bring himself outside the bar of the

statate ona theory cof a duty te warm In Conklin v.

Draper (220 App. Diy. 220. 24b NYS. ond, affd. nat? We Sh

G20, 173 NUR SO) the plaintiff seught te avoid the bar’

the Statute of Limitations for aoinalpracties a@tion Ta.

ealleging thats although: rore than two Veuts ber olanjesedd

sinee defendant diad deft foreens ino oplamtetis atidereon,

defendant hada eontinuinge uy teowarn her ef the pr

enee of the forceps. Tn distutssing her canse of aetion fer

anafpractice: thy Appellate Division rejeeted: plamntit

argument of a qgentinuing dts te warn oats dinmsenn|d 220

App. Div. 220, 20), I41- NEY.S. 520, 92, 525).. That. 1

opringiple does tet pps sokely to mmalprietion. aethame )-

evident from this court's trentiment of the eomebaint os

Sd@imidt ve. Merchants Desp. Tramsp. Coe, (270 oe Sy ee

MUN S24. Tee ADM. 4rt), infra. avhere attempt 1

3 Ps : Not

a & -: ; hit -

¢ : On

pial and Dissenting Opinion a Court of Appeals

ut New dark

avoid the bar of the Statute of Limitations for a negligence

action, by alleging causes of action sounding im nuisance,

breach of contract and fraydulent misrepresentation, were

rejected. If the nature and origin of the liability asserted

ix a negligent act, the bar of the Statute of Limitations

cannot be avoided through an’ allegation that defendant

had a continuing duty to warn plaintiff of the possible

damaging consequences resulting from the act alleged to

be negligent. Any duty that may arise to recall the prod-

uct ‘from the market has no bearing on ‘the rights of those ,

to whom it had been administered years previonsly.

Turning to the basic negligen@\ cause of action, it is

apparent that’ ‘the facts come within the holding of

‘Schinidt ve Merchants Desp. Transp. Co. (270 NAY, 287,

200 NEL S24, 104 ALLA 450, suprad. In Sehmidt an action.

against a former employer to recover for pneumoconjosis.

caused by. inhalation of dust neglige antly allowed to. ae-

cumulate in ‘the air, was “brought..more than three vears

after the te ringtion of the _employme nt. fhe opinion of

Judge Lehnian recognizes the classic principal that ‘in

actions of negligence damage is: of the very gist, and

essence ef the plaintiff's cause.’ Comstock vo Wilson, 257—

N.Y.e 251, 235, 177 NE. 401. 932, 76 ALL.R. 676." The

opinion goes on to say (270 N.Y. p. 300, 200 NUE. p. 827,

14 ALR. 450): "Through lack of caré a person may

set in motion forces which touch the person or property

of another only after a long interval of time (CE. iret

_ Village of Seargdaley 269 N.Y, 198, 199) NUE. 56. [102

ALR. 2111): and then only. through new, fortuitous con-

ditions. There can be no doubt that a eanse ef action

Opinion and Dixsse nling Opiiion wt Court wv! App als

uf Na a } on, .

‘ a . e

aeies only when the forces wrongfully put) in motion

4 . . *. - “-*

produce injury. Otherwise, in extreme cages. a eruse of

aetion might be barred before tiability arose.” ALL ofthe

text writers and rebevant eases so hold. Cooke makes

the pufint as welas any. A ease of action aceries upon

Me vielation of a legal right. In certain gases @rowing

out of the etion for Tresyutss, fle right is fo be free from ‘

direct Invasions of pegsons or property. The wrong is

done? the right violated. and the eatise of action complete

alien the invasion takes place, ins depengde rithy of any actual

pecuniary damages In such eases the right is not to be

‘trespassed upon. “Some rights, however. of lésser antiq-

Wty, growing out of actions on the ease. are+not: rights

against technieal invasions, but rather rights not to he

damaged under eertain cireumstances, In sueh cases the

Wrong itself is not aetionable, fly right net violated. and

the cause of action none inte nt until dam niece takes priser,

(| Hooley . Torts fdth edi}. 6 46.) - .

“None of these views point toon ; eee’ ride. Tires

would indicate, however, thatathe action aeerues only when

‘there is some actnak-deterioration of al plaintiff's howlily

Jstrnetre, This is the reasoning gf eases holding that the

tute doesn't becin te rum until thie defendant's wrong:

“harms the relinti ef, (Gile Sears, “Rochuek & a. 20

- App. Div. 95, 120 NUYUS.2d BAS) Sd deéfeetive Boor enused|

injury one vear later: statute held to rffstrom date ft

injury fe White ve Sehnoebelen, OL NEL 273.18 Ad Ish

19410! Ststatute held te run from date ar lightning

struck defeetively ins stalled @htnine ‘rod, Since, then,

the recognized daiages*in negligence eases are pain and.

suffering. loss of earnings and. we suppose, damage to

P : 7g

Opinion and Dissenting Opinion of Couré of Appeals

4 of New York VV

the structure of the body, it is questionable whether any

cause of action exists before these things actually happen.

tut Judge Lehman's View in the Sehmidt ease is right

as we must assume. that the dust immediately acted upon

Sehmidt’s lung tissue.

Since many of our holdings that the cause of action

‘aceries pen the introduetion of the harinful substance

into the body are malpractice: cases, we should note that

eur acerual rule in’ such cases deere through special

doctrinal presstves to which negligence cases as such have

never been sub jectod, Originally actions for qual ne Letty

were premised on the breach of an) implied contract to

use the standard of care expected “of a professional and

the breach of that plied promise gave rise te the action

fr omalpractice. Accordingly, the early decisions held.

in accordance with the usual warranty rule, that the statute

commenced to run from the time of its breach, ie. when

the act complained of took place. (Pike v. Honsinger,

15 N.Y. 201, 490N, 760: Capneci ve Barone, 266 Mass.

aes. Lio NRL Gos 11929}: Conklin v. Draper, 229 App.

Di, 225. SO, 24 NALS. 529. 552, 355, affd. 254 N.Y.

GLO, 173 NEL SO. supra: Ranalli ve Breed. 277. NY. 650,

WW N.E.2d 195: Colin v.ealth Ins. Plan of Greater NLY..

N.Y.2d 981, 197 NOY S.2d 735, 165 Nek 2d S78.) Whether?

See neceptance of a Sidi theory of the basis of

malpractice liability has led us ustray in eomputing the

time of acerual of the cause of action is of prime impor-

tanee here. Tf we adhere te our acernal rule in malpractice

cases, after recognizing that they are essentially negli-

cence CASes, We see no escape from the conclusion that -

Opricon ad Dissenting Opuieon at Court of Appeals

5 at Nn 7] durk e

we should follow Schmidt ina elassié negligence case.

We should put aside. the contention® often Fustify ing

abandonment) of prior holdings, ‘that social change or

advancement inthe sciences has se altered the subject

matter upoh which the lay operates that a different result

ix called for? The insidioys and “inheFently unknowable”

nature of capgur and similar diseases was common know!-

edge in 1946 when Schmidt: was decided.” Be atfectine

plea of ao plaintiff whe.seould not) kmow he was being

destroyed from within fell then upon-ears no less sensi-

five to such appeals than those now hearing this case! To

our quinds, the adoption, of and adherence to. the accrual

rule by the Judges of our court from 1930 onward renders

the simple assertion “it is unjust” sindslequate, “as

Considering the function of a SrAuty. of Limitations as

-a device for repose, a potenfial defendant's equities are

the same whether the plaintit! knows ef his condition or

not. Repose is as beneficial to society in the one case as

in the other. While the ‘plaintiff's equities are greater

In one case, it Was prestiuably pursiant toa determination

that the interests Of an occasional claimant Were. sub-

ofinate to society's interest in repose that resulted in the

Statute of Limitations in the first place. The existence

of a discovery provisiog, in the fraad statute hespeaks a

legislative judgment that only in fraud cases, by their very

nature, were there a sufficient mumber of unknown wrongs:

to justify a departure from the general rule. Apparently

the rarity of* such @afortunate cases in other types of

actions did not outweigh the disadvantages of imposing

a possible exeeption to the grant of (repose to every per:

son and industry who could be a potential defendant. It

10a :

of New York -

is hard to say for certain, but perhaps the possibility of

feigned cases against unprepared’ defendants and the diffi-

culties of proof in meritorious cases led. to a decision that

society is best served by complete repose after a certain

number of vears-even at the sacrifice of a few unfortunate

cases. Whatever the poliev considerations, the recent

amendment of the malpractice statute from two to three

vears (CPLR, § 214, suo l 6) makes it clear that the

legislative choice was deliberately made in the face of

strenuously advocated altemgatives. (See 1942 Report of

N.Y. Law Rev. Comm... pp. 141-145, recommending a dis-

covery provision with an outside limit of six vears. A

similar recommendation wagmade in 1962. See N.Y. Legis.

Doe., 1962, No. 65 [C].) ”

It is not without reasoyy that change in this area has

heen thought by us to be the responstbility of the Legisla-

ture. Our court has no facilities, to inquire into the inei-

dence of hardship cases under the statute, nor the

peculiarly legislative prerogative to balance che result of

such an inquiry against the countervailing considerations

of prudence and social tranquillity that are supposed to

justify Statutes of Limitations. Moreover, how could we

set limits to the right plaintiff would have us grant? Is it

for a court to say.that there shall be an outside limit of six

vears? If so, what he fact that 15 vears passed before

plaintiff brought this agtion?

The judgment should be affirmed, without costs.

Desmoxp, Chief Judge (dissenting).

The complaint, sounding in both negligence and breach

of warranty, alleges that while plaintiff was a patient

a °

1 1is

Opinion and Dissenting Opinion Conrt of App: als

“at New Yool,

in a hospital in M44 there was injected «into his nasal

<imuses it substance manufactured by dlefendant but that

it Was not untih) 157 that plaintiff learned. that this sub--

stance was radioactive and carcinegenous and had caused

a cancerous condition ino his nose. This suit) was com,

meneed in 159. It has been distuissed below as to negli-

genee because not breught within thyee years after the

injection. (Civ.Prac Act. 5 49. subd. 6) and as to Breach

of warranty because trot instituted until jmore than six

vears thereafter (Civ. Prac. Net. 5 48 subd. 1}. .

As the complaint stands, the limitation periods have run

since the pleading says no more than that plaintiff didnot

learn of the dangerous qualities of the preparation until

95S, [4 years after the injection. Frem his briefpand Ins

oral argument, however, it seems that his theory of action

ix that the carcinogenic qualities of the injection were not

dixcoveraMe by hime until after the 1997 surgical operation.

If that be the faet. it wegrkl be unreasonable and perhaps

Unconstitutional to hold that his, time toe sue expired

before it was possible for him to learn oof the wrong (see

Urie vy. Thompson, S37 Tos. 165, Go S.Ct TODS. 950 LM.

12s2: Fernandi ve Strully, 35 NI 454 1703 Ad 207:

Rieciuti ve Voltare Tubes, 2 Cir. S77 F.2d S08: Handler

v. Remington Arms Co. 144 Conn. S16, 10 Ad 75:

6 Harv. Le Rev. 177, 20r). Statutes (including limita-

tion laws) are not to be construgd so as to deny the right

to sue for a common-lawgwreng (Rexford vo Knight. 11

N.Y. 308, 3182 People ve Turner, 117 N.Y, 227, 22°N.E.,

Wee: Gilhert vo Aekerman, ISO -NLY. 118, 124. 53° NUE.

qao, Tod. 45 RAL IS: Shanahan v. Monarch Eng. Co.,

HAYDN EY. 4690, 114 NE. 795: Borgia v. City of Nyw York.

r . a .

peer

? Pas

Opinion and Dysscntina Opmion of Court of Appeals

se, oi New ) al . i ‘

12 N. V2 Idi, SOT NYS 2d O19, IST NEL 977.) Sehmidt

v. Merchants Desp. Transp. Co. (270 N.Y. Usa, 2000 NEL

S2he 104 ALR. 450). 1f amd to the extent that it is incon-

sistent with tener views, should be re-examined. ie

The judgment should be affirmed, without costs, with

leave to plamtiff, if se advised/ to serve an amended

complaint.

Dvr. Vas Voornis, Foster’ and Sciueprri. J. eoneur

with Burke, J. :

Pa -

% Dismoxp, C.D. lisse yts in an opinion in whieh Furs,

J... concurs.

Judgment affirmed. *

“a

- ad

Judgment and Ameénded Remittitur of Court of —

Appeals of "New York

. tT. eee

NatrHaAN Cann Scumwarrz.

; . App land,

vs;

Hiyvors Newport Cab strean Conponarion & ASe.,.

; 7 R. spond nis,

ee i

1 IT REMEeMerRee. Thatoonm the th day of Jame in the

. .

fee efour Lerd one theusand nine hundred and siyty-twe,

Nathan Carl Sthwartz, the appediant. cm tha. eause, Pe

here inte the Courtoef Nppeats. bs Adfred So Jutien4hi-

attorney amd tiled in the said Cort a Notice of Npopecl

and retarn therete from the judument oof the Appellate: -

Division of the Sapreiie Court inand for the Pirst lad

cil Department. Amd Pexden Newport. Chemical Carpe

, : oe :

ration Qo ame... the ressnmedenat=s amo satd emuse. atterward-~

appeared im said Court of Appeals by Fulton, Walter &

Duncombe, their atternecs, .

Which said Notices of NAppeak and the return therete,

filed as aforesaid. are hercunge annexed.

Warrerves, The said Court lef Appeals diaving buggrd

this enase argued by Mr. Alfred S. Julien. ofteounsel for

thee appellant ond bs Maro Piarnion DDitriereotap ties, of eons!

for the -respomdgnts. and oatter due deliberation hiaed

thereon, did order and adjprdee that the judgient of th.

Appellate Division of the cSupreime Conrt apy =

l4u

4«

Fudan nt and Amended Remittitus of Court of Appeals

* of N. uw York

herein be and the same hereby is affirmed, without costs.

And thereafter a motion to amend the remittitur having

heen granted this remittitur is hereby amended by adding

thereto the following: Upon the appeat herein there was

presented’ and necessarily passed upon a question under

the Constitution of the A *nited States, siz: appellant con-

tended thatethe statute of limitations commenced te run

in 1957, when he first was able to diseover an injury vaused

by a 1944 injection of a carcinogente substanee, and that a

holding by this Court as a matter ot iaw that the aétionable

injury was sustained prior to that time would deprive

appellant of due processsof law in violation of the Four-

teenth Amendment te the United States Constitution. The

Court of Appeals held that in an action for personal injur-

iex caused by negligence the cause of action accrues: and

the statute of limitations commences to run when the

negligence produces injury and that the injury eeecurred

when the harmful substanee first acted upon appellant's

body at or about the time of injection in 1944, appellant's

lack of knowledge notwithstanding.

And it was also further ordered, that the records afore.

said, and the proceedings in this Court, by retitted to the

Supreme Court of the State of New -York, there to cbe

proceeded upon according to law. }

THererore, it is considered that the said judgment be

affirmed, &e., without costs, as aforesaid.

And hereupon, as well the Notice of Appeal and

return thereto aforesaid as the judgment of the Court of

Appeals aforesaid, by it given in the premises, are by the

said Coart of Appeals remitted into the Supreme Court of

~©

Judgment and Amended Remittitus ut Conrt of App als

/ at Kew korn sOage

ate

the State of New York beforethe Jus ‘tices thereof, accord.

ing to thy borne ot the. statute in such ease made and pro:

vided, to be enforeed according to law, and whieh record

now remains in thfe said Supreme Court, before the Justices

thereof, &e. ;

RayMonp J. Cansxon

Clork of the Court of App als of the State of New York.

Court of Appeals, Clerk's Office, |

Albany, January 25, 1965. \ >

~ 7

I : 4 . °

| Heresy Ceerivy, that the pre ceding record contains :

correct transcript of the proceedings im said cause in the

Court of Appeals, with the papers originally filed therein,

attached therety.

| Srat.| 4

. ~Raymosp J. Caxsos

a} ; = ™ ('l, rk,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.