## Facts

- Brandi R. Fox underwent Roux-en-Y gastric bypass surgery on April 10, 1999, performed by Dr. Herbert Gladen while she was under general anesthesia.
- Shortly after discharge, Fox became ill and returned for treatment; her condition worsened.
- Exploratory surgery revealed a perforation at the stapled closure of the small intestine, causing severe complications.
- Fox initially suspected negligence by health-care providers but did not know a medical device might have caused the injury.
- On June 28, 2000, Fox filed a medical malpractice action against Dr. Gladen and hospitals.
- During discovery, on August 13, 2001, Dr. Gladen testified he used an “Ethicon GIA-type stapler” and the perforation occurred at the stapled closure.
- On November 28, 2001, Fox amended her complaint to substitute Ethicon Endo-Surgery, Inc. as a defendant and asserted a products liability claim based on an alleged stapler malfunction.

## Issues

1. Under California’s delayed discovery rule, does suspicion of injury and negligence start the limitations period for all potential defendants and theories, including later-discovered product claims?
2. If not, may a plaintiff invoke delayed discovery on a cause-of-action-by-cause-of-action basis by alleging that reasonable investigation earlier would not have revealed the factual basis for the later-asserted claim?
3. What must a plaintiff plead to withstand demurrer when relying on delayed discovery?

## Decision

- The California Supreme Court affirmed the judgment of the Court of Appeal and remanded to allow Fox to amend.
- The Court rejected a bright-line rule that suspicion of negligence necessarily triggers accrual for all potential defendants and all theories.
- The Court held delayed discovery may apply separately to each cause of action if the plaintiff pleads and proves that a reasonable investigation at the time of initial suspicion would not have revealed the claim’s factual basis.
- Fox was entitled to attempt to plead specific facts showing she could not reasonably have discovered the product-defect basis against Ethicon before the August 2001 deposition and that she acted with reasonable diligence.

## Legal Principles

- A cause of action accrues when the plaintiff has reason to suspect an injury and some wrongful cause, and the plaintiff is charged with knowledge a reasonable investigation would reveal.
- Accrual and delayed discovery are claim-specific; the same initial facts may place a plaintiff on inquiry notice for one claim or defendant but not another.
- If the plaintiff pleads and proves that reasonable investigation at the time of initial suspicion would not have revealed the factual basis for a particular cause of action, the statute of limitations for that cause of action is tolled until such an investigation would have revealed it.
- A plaintiff invoking delayed discovery must plead the time and manner of discovery and the inability to have made earlier discovery despite reasonable diligence; conclusory allegations are insufficient.
- Bristol-Myers Squibb Co. v. Superior Court was disapproved to the extent it imposed a rule that suspicion of negligence starts limitations periods for all potential defendants and theories.

## Conclusion

The court held that delayed discovery can postpone accrual for a later-discovered products liability claim when the plaintiff plausibly alleges that, despite reasonable diligence, earlier investigation would not have uncovered the claim’s factual basis, and it allowed Fox to amend to plead those facts against the device manufacturer.


Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797 (Cal. 2005)