Consumer Class Actions and Mass Torts : Class Action Lawyer & Attorney : J. Russell Jackson : Skadden Law Firm : Complex Class Actions : Consumer Class Actions & Mass Torts Law Blog

A recent report and recommendation from a US Magistrate Judge raises the question:  Does a group of patients who were exposed to pathogens but never developed a disease have a cause of action?

In Descoteau v. Analogic Corp., 2010 WL 325933 (D. Me. Jan. 21, 2010), Magistrate Judge John Rich III suggests that they do, although he clearly seems to stretch Maine law in order to find a cause of action for a bad factual situation.  If this report and recommendation is affirmed by the District Court, it will not be the first time hard facts have made bad law.

The facts are not pretty.  Plaintiff is one of some 23,000 veterans who were potentially exposed to HIV, Hepatitis B, Hepatitis C, and other bloodborne viral pathogens when they underwent diagnostic procedures and biopsies at VA hospitals using a rectal probe made by the defendants.  Both the operation manual for the rectal probe -- as well as the oral instructions from the device representative who demonstrated it at the VA hospital that treated plaintiff -- indicated that the probe could be cleaned by flushing it with a syringe full of detergent and water.  Years after the hospital bought and began using the defendants' rectal probe, the hospital's staff discovered that blood and fecal matter remained in the probe even after it had been cleaned according to the manufacturer's instructions -- without using a brush.  The VA conducted a systemwide review and notified some 23,000 veterans nationwide of the potential exposure and their need to receive testing for bloodborne pathogens and disease.  Plaintiff received his notice on April 14, 2006, was tested on April 27, 2006, and was notified that fortunately his test results were negative on May 11, 2006.  Plaintiff sued on behalf of a class of 528 veterans who were potentially exposed to bloodborne pathogens at the Togus VA Medical Center in Augusta, Maine, asserting causes of action for strict liability and negligent infliction of emotional distress.

The defendants moved to dismiss, asserting Maine's 6-year statute of limitations, arguing that plaintiff's original diagnostic procedure occurred more than six years prior to his filing suit.  The Magistrate Judge easily dispatched of that challenge, holding that plaintiff's cause of action for emotional distress did not accrue until he was notified in 2006 that he might be infected.  Thus, the suit was well within the statute of limitations.

Defendants also moved to dismiss the strict liability count, citing the language of Maine's strict liability statute, which provides:

One who sells any goods or products in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to a person whom the manufacturer, seller, or supplier might reasonably have expected to use, consume or be affected by the goods, or to his property, if the seller is engaged in the business of selling such a product and it is expected to and does reach the user or consumer without significant change in the condition in which it was sold. 

Id. at *5 (quoting statute).

The defendant argued that a prerequisite to a strict liability claim is physical harm or impairment, and that plaintiff -- who contracted no disease and suffered no impairment -- thus could not bring a claim.  Plaintiff argued, however, that the needle stick required for the HIV and Hepatitis testing qualified as "physical harm" sufficient to support a strict liability claim.  The court -- striving to find a cause of action for an obviously-inconvenienced plaintiff -- bought the argument, observing that "[t]he defendants cite no authority in support of the proposition that a needle stick or blood draw constitutes insufficient physical harm, as a matter of law, to support a strict liability claim, and I find none."  Id.

But the rule of strict liability is not available for all types of harm; rather, it is reserved for physical injury and damage to property.  The Restatement defines physical injury as a "detrimental change in the physical condition of a person's body."  Id. at n.4.  The court's stretching of the definition of physical injury to encompass a subsequent needle stick effectively reads the physical injury element out of the statute.  Nevertheless, the court recommended that the strict liability claim should survive the motion to dismiss.

The defendants also moved to dismiss the negligent infliction of emotional distress ("NIED") claim.  The court began by opining that the plaintiff had sufficiently alleged a count for negligence for physical injury (i.e., the needle stick).  But as for emotional distress, the court was bound by Maine precedent that reserves the cause of action for defendants who are in a special relationship with the plaintiff.  Maine courts have found such special relationships in very limited circumstances (e.g., doctor-patient, counselor-patient, hospital-decedent's family).  Id. at *6.  The court held that because its research had not uncovered an instance where the Maine courts had found a special relationship between a manufacturer and an end user, the NIED claim must be dismissed.

It remains to be seen whether the District Court will adopt the report and recommendation in Descoteau, which effectively reads the physical injury requirement out of Maine's strict liability statute and thereby would impose upon manufacturers strict liability for purely emotional harm.  Even if it did, however, it is difficult to fathom how 528 people's emotional harm could be adjudicated on a classwide basis consistent with the requirements of Rule 23.

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A New Yorker brings a tort action in a New York state court for injuries caused in New York by a drug prescribed in New York. 

What law applies?  Why New York's, of course!

The action is pending for a few years, some documents are produced and depositions taken, and then the defendant says in a letter that it will move for summary judgment based on New York's 3-year statute of limitations. 

Well, when the going gets tough, the tough plaintiffs go forum shopping!  And I hear Minnesota is lovely this time of year.  They have the Mall of America, the world's largest booming Prairie Chicken, and a 6-year statute of limitations that, as the Drug and Device Law Blog explains, they are willing to let any foreigner take advantage of.  (Reasoning that statutes of limitations are "procedural," and not "substantive," Minnesota courts have applied that forum's 6-year statute of limitations to foreigners' tort claims filed in Minnesota courts.)  Minnesotans are a generous people, indeed.

The question is, should a New York court allow the plaintiff to voluntarily discontinue her action and go forum shopping, thereby avoiding summary judgment? 

That was the question facing Justice Martin Shulman in In re New York Hormone Replacement Therapy Litigation, Case Management Index No. 763000/06 (N.Y. Sup. Ct. -- N.Y. Cty. Nov. 30, 2009).  Justice Shulman, the coordinating court for New York State hormone replacement therapy cases, answered it with a resounding "no."

In his decision, Justice Shulman acknowledged that plaintiffs generally are allowed to voluntarily dismiss an action when they want to because a plaintiff cannot be compelled to litigate.  Slip op. at 6.  However, under New York precedents, prejudice to the defendant flowing from the dismissal can justify a court's denial of leave to voluntarily discontinue an action.  Id. 

Plaintiffs argued that because the defendant had not yet brought the summary judgment motions and discovery was not yet closed in the matter, they were free to dismiss their product liability actions at will, re-file them in federal court in Minnesota, and then have them transferred to the federal HRT multidistrict litigation in the Eastern District of Arkansas.  The court disagreed:

On this record, while plaintiffs' position is superficially reasonable, still, under the circumstances presented it is truly difficult for this court to fathom anything more prejudicial to defendants than being deprived of their right to judgment on the merits dismissing these clearly time-barred actions. . . .  [H]aving established the right to judgment in their favor, the court finds that defendants will be severely prejudiced if plaintiffs' [without prejudice] discontinuance motions are granted.

Id. at 8.

The court proceeded to analyze the parties' statute of limitations arguments.  Under the New York CPLR, the products liability causes of action were clearly subject to a three-year statute of limitations.  The plaintiffs had been diagnosed with breast cancer between 1987 and 2002, but each commenced their actions in 2004 and 2005, more than three years after diagnosis.  Thus, the viability of their claims depended upon there being an applicable exception to the three-year rule.

Plaintiffs first argued that CPLR section 214-c(4) applied.  This provision gives an additional one-year period where the "technical, scientific, or medical knowledge and information" was not known within the statute of limitations period.  The court looked at the available scientific evidence and concluded that the publication of the National Institutes of Health's "Women's Health Initiative Study" -- which "actually caused [defendant] to change its HRT product labels inter alia to include a black box warning" -- "indubitably linked HRT to breast cancer."  As such the publication date for the WHIS, July 9, 2002, was the trigger of the one-year period, and no plaintiff had filed her claim within that time.  Indeed, the court concluded that "the fact that taking HRT exposes the consumer to the potential risk of breast cancer . . . was a matter of public knowledge for decades and duly disclosed after the publication of the WHIS on [defendant's] HRT product labels themselves."  Slip op. at 18.

Plaintiffs next argued that one of the defendants was equitably estopped from asserting a statute of limitations defense because it had acted to fraudulently conceal the cause of action.  Justice Shulman noted that there is a sharp distinction between underlying fraud and fraudulent concealment, and the conduct supporting the latter must be different from that pled for the former.  Id. at 19.  Here, it was not.  Plaintiffs alleged that a defendant concealed that HRT increased breast cancer risk and sought to ghostwrite scientific articles promoting the use of HRT medicines.  That did not prove fraudulent concealment of a cause of action.  As the court noted, the complaint did not plead that plaintiff could not learn about an association between HRT medicines and breast cancer prior to the WHIS study's publication, and not one plaintiff alleged that she was "lulled by [defendant's] alleged misleading tactics and/or deliberate concealment of scientific information to refrain from timely filing their claims."  Id. at 20. 

The court observed that the evidence merely reflected a medical debate about whether the benefits of hormone replacement therapy are worth the risks:

Though this debate does not appear to be settled, the potential risk of contracting breast cancer from taking HRT medication was well known and at all times out there in the stream of public information.  On this record, this court simply cannot conclude that [defendant] engaged in any intentionally fraudulent or deceptive act which ostensibly lulled plaintiffs into inactivity and induced them to refrain from filing timely actions.

Id. at 21-22.

The third argument plaintiffs advanced to escape the effect of the statute of limitations was American Pipe tolling, i.e., that the pendency of a prior class action tolled the statute of limitations for all absent class members.  This tolling rule is part of federal common law, and is based on the fiction that absent class members are aware of the pendency of the class action and would otherwise seek to intervene in it but for American Pipe tolling. 

Here, the prior class actions were filed in federal courts in Illinois and West Virginia.  Justice Shulman was faced with deciding whether New York law would adopt an American Pipe tolling rule and, if so, apply it to the two foreign federal class actions.  As Justice Shulman noted, there is no binding appellate authority on whether New York would adopt American Pipe tolling.  He decided to align himself with the many federal decisions refusing to read this decidedly federal rule into state law.  Id. at 23-24.

Justice Shulman's opinion is an important example of a court applying anti-forum-shopping principles to enforce the statute of limitations and prevent litigants from gaming the system.  Many of the plaintiffs in this case already had filed duplicative federal actions in Minnesota, and it remains to be seen how difficult enforcing Justice Shulman's judgment will become.

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A recent statute of limitations decision out of the Southern District of Illinois highlights the duties that plaintiffs have to investigate their causes of action and bring them in a timely manner. 

In Wetherell v. ClimateMaster, Inc., 2009 WL 4043539 (S.D. Ill. Nov. 20, 2009), the plaintiffs had bought a geothermal heating and cooling unit for their home in June of 1999.  They did not sue the manufacturer in a putative class action, however, until over 8 years later, in September 2007.  The defendant, understandably, challenged the timeliness of suit under the statute of limitations.  Plaintiffs responded, asserting the discovery rule and charging that the defendant had fraudulently concealed plaintiffs' causes of action.  The court granted the defendants' motion to dismiss, holding that plaintiffs' claims were untimely filed and that the fraudulent concealment doctrine did not apply.

Notably, the only causes of action remaining at the time the defendant moved for summary judgment were violation of the Illinois Consumer Fraud Act and unjust of enrichment -- both of which triggered the running of the statute of limitations on the "accrual" of a cause of action under the discovery rule, i.e., when the plaintiff knew or reasonably should have known of his injury and that it was wrongfully caused.  (We do not know from the opinion whether plaintiffs previously had pled breach of warranty causes of action, but their absence is not surprising, since the statute of limitations for warranty claims runs from the date of sale, not the date of "accrual" under a discovery rule.)  The statute of limitations on the ICFA claim is 3 years from accrual; for unjust enrichment, it is 5 years from accrual.

In determining when the causes of action reasonably accrued, the court looked to plaintiffs' deposition testimony.  Within 2 years they had begun experiencing problems with the unit.  In September 2001, the installer had to return and add three pounds of refrigerant.  Then, on March 15, 2002, the installer discovered a leak in the unit's air coil and replaced the coil with another.  The unit continued to have problems, and in February 2005, the installer added another pound of refrigerant, and in late 2005 it once again replaced a leaky air coil and added refrigerant.

Apparently ClimateMaster's air coils were not coated with enamel and, as a result, had a tendency to corrode in the Illinois climate.  ClimateMaster knew this fact, and its employees had recommended coating its coils with enamel to remedy the problem.  Slip op. at *2.  The court found that "ClimateMaster never disclosed the fact that they knew its air coils tended to leak to any Illinois consumers, nor did it issue a standard communication to those consumers or dealers about the problems with the air coils."  Id. 

So when did plaintiffs' causes of action accrue?  If it was late 2005, then plaintiffs' claims would be timely.  If, however, it was when the first coil was replaced in 2002, they would not.

Plaintiffs' testimony was the key.  Mrs. Wetherell testified that she knew in March 2002 that the reason for the problems she had experienced was a failed air coil, and she suspected that ClimateMaster -- and no one else -- was responsible for the unit's failure.  Id.  Mr. Wetherell testified that he knew in March 2002 that he could take legal action against someone, but later in his deposition he seemed to recant this position.  Id. at 4.  Nevertheless, the court concluded, his failure to further investigate the cause of injury in 2002 was constructive knowledge that the injury was wrongfully caused.  Id.  As the court explained, "the need to discourage delay and encourage diligence" means that the statute is triggered once plaintiff knows that he is wrongfully injured, not when he recognizes the full extent or cause of his injuries.  Id. at *3.

Plaintiffs sought to avoid summary judgment by arguing that the repeated failure of the unit was a "continuing violation" so that triggering of the statute of limitations should be held in abeyance until the last injury occurred.  The court flatly rejected this argument, noting that this was not a continuing violation" because plaintiffs did not continue to purchase heating and cooling units; rather, they serially attempted to remedy the "'continual ill effects from an initial violation,' which is not a continuing tort."  Id. at *5.  Moreover, the "continuing violation" theory has not been applied to ICFA causes of action in Illinois.  Id.

Plaintiffs also sought to forestall the effect of the statute of limitations by arguing that ClimateMaster fraudulently concealed the causes of action plaintiffs had against it.  The court quickly rejected this argument.  Fraudulent concealment, it noted, involves "'efforts by the defendant, above and beyond the wrongdoing upon which plaintiff's claims is founded to prevent, by fraud or deception, the plaintiff from suing in time.'"  Id. at *6 (citation omitted).  But the only evidence plaintiffs provided was that ClimateMaster failed to disclose the defects in its coils when it sold and serviced the unit.  Remaining silent, however, is not fraudulent concealment unless the defendant has a fiduciary or other confidential relationship with the plaintiff placing upon the defendant a legal duty to speak.  And ClimateMaster, as a product seller, has no confidential relationship with the buyer and thus has no legal duty to speak; therefore, its mere silence about the alleged defect cannot be fraudulent concealment.  Id. at *7.  Accordingly, the ordinary statute of limitations applies, and plaintiffs' decision to wait to file suit more than 5 years from when they first understood that they had experienced a wrongful injury bars their claim.

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Asbestos is a law unto itself.  There are plenty of reasons why.  Most people exposed to it never develop a debilitating injury; for those that do, the latency period between exposure and debilitating harm can be over twenty years.  Mesothelioma is said by many to be a "signature" injury that results from asbestos exposure.  As a result of these and other factors, the law surrounding asbestos has developed somewhat differently than traditional product liability law.

This is particularly true with the statute of limitations.  Statutes of limitations are important rules.  They serve to prompt plaintiffs to bring claims while evidence and memories are are still fresh and cases are capable of being adjudicated.  They also provide defendants with finality -- repose.  

Asbestos, however, presented courts with a Hobson's choice.  If the law required plaintiffs to bring suit upon discovery of non-debilitating injury relating to asbestos -- such as the condition "asbestosis," which can involve an asymptomatic thickening in the lungs -- then the plaintiffs would not recover for more serious injuries that they might develop ten, twenty, or even thirty years down the road.  But, if the plaintiffs waited to sue until they suffered physical symptoms, they would face motions to dismiss on statute of limitations grounds, arguing that they had first "discovered" their injuries and started the statute of limitations running years before.

States have approached this problem differently.  Some have created registries where plaintiffs who are asymptomatic may file a notice when they first discover their potential cause of action, but then may actually bring suit only if they develop physical injuries.  Others, like Pennsylvania, have adopted the "two disease rule," which allows an asbestos plaintiff to sue for non-malignant harm, and subsequently to sue for damages if he develops asbestos-related lung cancer.

Recently the Pennsylvania Supreme Court added a twist to its special asbestos "two disease rule," allowing a plaintiff to sue for asbestos-related lung cancer a defendant that it had never originally identified or sued for non-malignant harm decades before.  See Abrams v. Pneumo Abex Corp., No. 17 EAP 2008, Slip op. (Pa. Oct. 21, 2009).

In Abrams, plaintiffs were diagnosed with nonmalignant asbestos-related disease in 1984 and 1985.  Within two years, they filed complaints against a host of defendants seeking damages for increased risk and/or fear of cancer.  The lawsuits were settled in 1993.

In 1996, the Pennsylvania Supreme Court clarified the "two disease rule" that had been applied by the lower courts of that state.  It concluded that a person's diagnosis of asymptomatic pleural thickening did not start the statute of limitations running on a claim for "nonmalignant physical impairment."  Simmons v. Pacor, Inc., 674 A.2d 232, 237 (Pa. 1996).  And it, of course, would not impact the statute of limitations for a later-developed cancer.

But it also held that asymptomatic plaintiffs could no longer sue for emotional distress caused by a fear of cancer because it would "erode[] the integrity of and purpose behind the two disease rule."  Id. at 239.  Rather, those who develop cancer can recover for their emotional distress when they bring their cancer claim.  The court's holding in Simmons, however, did not alter the plaintiffs' 1993 settlement of their fear of cancer claims.   

In 2002, plaintiffs were diagnosed with lung cancer.  They filed their second suits in 2003 against a variety of companies -- including a new defendant, Crane Company, that had not been sued in the previously-settled cases.

Crane moved for summary judgment, arguing that the statute of limitations barred plaintiffs' claims because plaintiffs had not identified and sued Crane within two years of first discovering that they had an asbestos-related claim.  Crane argued that the risk of cancer claims brought by plaintiffs in the early 1980s were premised on the assertion that plaintiffs would later contract cancer and thus involved the same malignant asbestos-related disease as the 2003 suits.

The Pennsylvania Supreme Court rejected Crane's argument:

We reiterate that Appellants' cause of action against Crane is an individual one, separate and distinct from the causes of action asserted by Appellants against other defendants in the 1980s; thus, the fact Appellants previously asserted risk of cancer claims against other defendants does not preclude a subsequent timely action against Crane for actual cancer. . . .

We reject the Superior Court's conclusion that Appellants' present claims for damages for lung cancer are identical to their previously-litigated risk of cancer claims, and thus had to have been raised at the same time as their risk of cancer claims.  Cancer and non-cancer diseases clearly give rise to separate claims.  Appellants' causes of action for asbestos-related lung cancer accrued in December 2002, when they were diagnosed with lung cancer.  Furthermore, Appellants' claims for damages for lung cancer are clearly separate and distinct from any claims for risk or fear of cancer that may have existed in the 1980s.  Accordingly, the statute of limitations for Appellants' claims against Crane for lung cancer did not begin to run until December 2002.

Slip op. at 18-19 (citations omitted).

Justice Saylor dissented on the ground of repose.  Plaintiffs had an obligation to name all defendants who were responsible for their harm in their first suit.  When they failed to do so and the statute of limitations ran, "Crane became entitled to the repose afforded by the statute of limitations."  Slip op., Dissent at 4.  According to Justice Saylor, "when a party's right to institute and maintain a suit arises, the legal landscape is fixed in the sense that recognized causes of action in favor of the injured party may not subsequently be removed.  By the same token, defendants and potential defendants also become vested in the defenses available to them at that juncture."  Id. (citations omitted).  Thus, when Crane was not named in the original suit, "it was able to rely upon the statute of limitations in order to arrange its affairs going forward."  Id. at 6.

What neither the majority nor the dissent addressed was how the majority's rule advanced the purposes of the statute of limitations.  Clearly, it does not.  Plaintiffs' earlier lawsuit served to preserve evidence of product identification and presented the defendants who were sued there with the opportunity to challenge documents and recollections at a time that was relatively close to exposure.  To allow a plaintiff who previously had the opportunity to name all potential defendants the chance to add new potential defendants nearly 15 years later is fundamentally unfair.  Crane -- the new defendant -- has no ability to defend itself in the same way.  Pennsylvania's new twist on the two disease rule is fundamentally at odds with the evidence preservation goals of the statute of limitations.

But, as they say, asbestos is a law unto itself.

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Today the Supreme Judicial Court of Massachusetts issued an opinion in Donovan v. Philip Morris USA, Inc., 2009 WL 3321445 (Mass. Oct. 19, 2009), recognizing a cause of action under Massachusetts law for medical monitoring.  Because colleagues at my firm were involved in this case, I'll just stick to some selected quotations with no commentary.

A federal district court had certified two questions to the Massachusetts Supreme Judicial Court:

"1.  Does the plaintiffs' suit for medical monitoring, based on subclinical effects of exposure to cigarette smoke and increased risk of lung cancer, state a cognizable claim and/or permit a remedy under Massachusetts state law?

"2.  If the plaintiffs have successfully stated a claim or claims, has the statute of limitations governing those claims expired?"

The state court answered the first question "yes," and the second question "no."

On medical monitoring, the court stated:

When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort.  No particular level or quantification of increase in risk of harm is necessary, so long as it is substantial and so long as there has been at least a corresponding subcellular change.  This should address any concern over false claims, . . . yet permit a genuinely injured person to recover legitimate expenses without having to overcome insurmountable problems of proof in this difficult and complex area. . . . The expense of medical monitoring is thus a form of future medical expense and should be treated as such.

In conclusion, each plaintiff must prove the following:  (1)The defendant's negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury, (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness, or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint.  Proof of these elements usually will require competent expert testimony.

2009 WL 3321445 at *7-*8 (citations omitted).

On the statute of limitations issue, the court said:

In this case, it is not merely the risk of cancer of which the plaintiffs have notice, but the substantial increase in the risk of cancer, as reflected in their complaint.  Because the harm involves subclinical changes that only will be discovered by a physician, notice most likely will take the form of advice by a physician, together with a recommendation for diagnostic testing conformably with the medical standard of care.  In short, the statute [of limitations] begins to run when (1) there is a physiological change resulting in a substantial increase in the risk of cancer, and (2) that increase, under the standard of care, triggers the need for available diagnostic testing that has been accepted in the medical community as an efficacious method of lung cancer screening or surveillance.

Id. at *9.

The court noted that its "opinion addresses only individual claims, not a class action.  We express no view about the superiority of a class action (the use of a court-supervised medical monitoring program) over an individual adjudication of claims and an award of monetary damages."  Id. at n.10.  The court also advised that the medical monitoring claim "would, of course, remain subject to all affirmative defenses, such as contributory negligence."  Id. at n.11.

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In states like Illinois, which have relatively short (2-year) statutes of limitations for strict liability and negligence, there often is a lot of litigation over the "discovery rule."  The discovery rule is designed to relieve the harshness of a tort statute of limitations by essentially tolling the running of the statute until the plaintiff was put on inquiry notice about her cause of action.  Put differently, "the cause of action accrues [and the statute of limitations begins running] when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another."  Nolan v. Johns-Manville Asbestos, 421 N.E.2d 864, 868 (Ill. 1981).

The court in Orso v. Bayer Corp., 2009 WL 249235 (N.D. Ill. Feb. 2, 2009) recently applied the discovery rule to grant summary judgment on statute of limitations grounds.  In Orso, plaintiff had been using Neo-Synephrine on a daily basis since 1990, despite the product's explicit warning that it should not be used for more than three days.  Plaintiff had visited a doctor in 1991, explaining that without Neo-Synephrine, "if someone were to put their hand over my mouth, I would have died . . . [My nose] is so swollen inside, I can't breathe."  Id. at *1.  The doctor recommended other medication and discussed strategies for giving up the medicine, but plaintiff returned to using it even though the doctor "'thought that [plaintiff] shouldn't be using it."

Nearly a decade later, in September 2000, a second doctor consulted with plaintiff.  He described plaintiff as having "'chronic rhinits with likely addiction (physiologic) to nasal decongestant drops.'"  Id.  The doctor prescribed a substitute medication and warned plaintiff of "rebound congestion," namely, that people coming off of medicines like Neo-Synephrine may develop severe congestion. 

Faced with the evidence, the court quickly concluded that plaintiff had been on inquiry notice much more than 4 years before filing suit in 2004:

The record shows that, possibly as soon as 1991 and definitely no later than September 2000, Urso knew that she had a medical condition, namely, a stuffy nose and breathing difficulties, that her condition was relieved only by the use of Neo-Synephrine, and that she felt she was unable to discontinue her use of Neo-Synephrine despite her doctors' advice and prescrptions for other drugs.

Id. at *4.

The court rejected plaintiff's arguments regarding her lack of knowledge, observing that the knowledge necessary to start the running of the statute of limitations does not require an accurate medical diagnosis or a definitive understanding of causation.  Suspicion starts the clock running, and the plaintiff is under a duty to conduct an inquiry to see if she has a cause of action.

Orso is unremarkable jurisprudentially, but it is a good workmanlike example of the discovery rule's application in statute of limitations motions.

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