# Petition for Writ of Certiorari — Simmons v. Washington ex rel. Carroll > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0997%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 374 U.S. 808 ## Text oO - 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, x against HEYDEN NEWPORT CHEMICAL CORPORATION and HEYDEN CHEMICAL CORPORATION, Respondents. 4 ¥ a 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 © ......-.., 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 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. | a) 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 9 % ° ‘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 a6 Aaiy injury petitioner sustained at the tine of inz jection was inherently unascertaigable at that time. te H > ed ? 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”. g .*) 4 ° ° 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 4) . 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. Q 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. — &3 ns 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 i 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! \, u . 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.) 9 "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.” o 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 a. 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. 2 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} oP 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 . ~~ ~~ 3a Opinion of Supreme Court, New York County, State ; of New York : % when, for the first time, the chain im 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 a 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 © o a & -: ; hit - © ¢ : On ~ a 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 4 Opinion and Dixsse nling Opiiion wt Court wv! App als uf Na a } on, . we ‘ 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 . a e 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 : Z © Opinion and Disstayting Opinion of Court of App als 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 ~ 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, < 5 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0997%3A2. Public record. Not legal advice.