Here's what got this post started: I'm a big fan of Beck and Hermann's Drug & Device Law Blog, and have had it on CBL's list of approved blogs for years. Although they both practice in the world of big law, they write like -- dare I say it? -- real people. I even enjoy it when they post about how wacky California is, although that's supposed to be my department.
However. In a post late last week, they were puzzled over an unpublished decision in a district court case in Los Angeles called Dorsett v. Sandoz, Inc. Their puzzlement seemed to stem from confusion between principles of deferred accrual of the statute of limitations law and relation back of so-called "Doe allegations." Anybody left awake now?
So let's see if we can either put the rest of you to sleep, or else straighten this out. And CBL will use the opportunity to show how the statutes of limitations and California's fictitiously named defendant statute interact with each other.
To non-lawyers, the concept of statute of limitations probably seems straightforward: you have so many years to file a lawsuit, if you're on one side of the line you're in, on the other you're out. Simple? Ha! First of all, we have tons of different statutes of limitations, ranging from ninety days for conversion of property left at a hotel to ten years for an action against a real estate developer for latent property defects. The statute for personal injuries and wrongful death is most often two years, although there are some exceptions (the most commonly applied one being the one year statute for asbestos-related disease or death). But that's the simple part. More after the jump.
The hard part is that the statute of limitations in tort cases doesn't always start to run when the plaintiff has a cause of action. Rather, under Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d. 1103, it starts running when the plaintiff
suspects or should suspect that he or she has been wronged. . . . Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.
Furthermore, as Beck and Hermann point out, the Cal Supremes decided in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 that the statute of limitations isn't revived when they or a Court of Appeal create a new legal theory.
Fine. How about when the plaintiff doesn't know who the wrongdoer is? Under Code of Civil Procedure section 474, she may nonetheless sue the defendant under a "fictitious name." So it is standard practice in a state court complaint for a plaintiff to sue the known defendants and add as defendants "Does I through XXV," or some such, directing the charging allegations generally against all defendants and alleging something along the lines of "the true names and capacities of the defendants named herein as Does I through XXV are unknown to Plaintiff, who therefore sues them under these fictitious names. Plaintiff will amend this complaint to add their true names and capacities when they become known." The plaintiff then alleges that all of the defendants (presumably including the Doe defendants) were the agents and principals of all of the other defendants and were acting in the course and scope of their authority.
A long line of cases holds that if section 474 is followed, once the plaintiff discovers the correct name for the defendant and files her amendment, the "Doe" allegation for that defendant will relate back to the date the complaint was filed for purposes of the statute of limitations. Actually, the cases say even more than that: Even though section 474 doesn't say so, a string of Court of Appeal decisions holds that the allegations will relate back, and the newly added defendant will be deemed timely sued, unless, at the time suit was filed, the plaintiff had actual knowledge of the defendant's identity and the facts giving rise to that defendant's liability. See, for example, Fuller v. Tucker (2000) 84 Cal App 4th 1163; McOwen v. Grossman (2007) 153 Cal.App.4th 937.
Thus, the standards for delayed accrual of the statute of limitations under Jolly and "relation back" of doe allegations under section 474 are much different, and the Jolly standard is much more stringent. Consider the following hypothetical: the plaintiff worked for many years in a manufacturing plant that processes chemicals, and he knows the names and manufacturers of all the chemicals. He's heard generalized rumors over the years that the chemicals at the plant cause cancer. Twenty years after working at the plant, he is diagnosed with, say, lung cancer. At this point, under Jolly, he likely has a suspicion that one or more of the chemical manufacturers was responsible for his cancer, and the statutory time clock starts ticking.
But he doesn't know which chemicals were responsible, so he simply files suit against "Does 1 through 100," without naming any defendants at all. Two years later, after his lawyer has sent him for a forensic "medical" work-up, the lawyer and expert connect the dots between the chemicals he worked with, the manufacturers of those chemicals, and the ones supposedly associated with lung cancer. He now amends his complaint to substitute for, say, five of the Doe defendants the correct names of the manufacturers whose products his lawyers' investigation has associated with his disease. And when the defendants argue that the case is time barred -- because, after all, he wasn't ignorant of the names of the manufacturers -- plaintiff argues, under Fuller and McOwen, that he may have known the identities of the defendants, but until his lawyer connected the chemicals with his disease, he didn't know the facts forming the basis for liability. And Marasco v. Wadsworth (1978) 21 Cal.3d 82 takes the principal a step further: the plaintiff is deemed "ignorant of the name" of the defendant if, although he knows the name, he is unaware the law gives him a case against the Doe defendant when he files suit because the appellate decisions haven't thought up the applicable theory yet. Once the court makes that announcement, he can amend to substitute the true name of the defendant and his amendment relates back.
That takes us to Dorsett v. Sandoz, the decision that puzzled Beck and Hermann. Dorsett's mother sued Sandoz and Doe defendants for wrongful death arising out of her son's 2004 suicide. The son had been taking fluoxetine, the Sandoz-manufactureed generic for Prozac. More than four years after the son died, a California Court of Appeal held for the first time that a brand name drug manufacturer could be held liable for negligence or intentional misrepresentation concerning the drug, even when the plaintiff (or decedent) only took the generic form. Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89. After that decision Ms. Dorsett moved to amend her complaint to substitute Lilly, the original manufacturer of Prozac, as a previously named Doe defendant. Lilly moved for judgment on the pleadings based on the statute of limitations.
The District Court judge denied the motion. The question was not whether the plaintiff had known Lilly's true name when she filed suit -- she clearly did. And the question, unlike in Jolly, was not whether the statute had begun to run -- it clearly had. Rather, the question was whether she met the requirements of section 474 so that the Doe allegations related back to the time of the original filing. And because no court had previously announced the viability of a case against a brand pharmaceutical manufacturer for injuries sustained by someone taking the generic equivalent, Code of Civil Procedure section 474 and Marasco applied.