Julie Beth URLAND, an infant By and Through William Charles
URLAND and Chloe Jill Urland, her natural
guardians, and William Charles Urland
and Chloe Jill Urland,
individually, Appellants,
v.
MERRELL-DOW PHARMACEUTICALS, INC.
No. 86-1623.
United States Court of Appeals,
Third Circuit.
Argued April 6, 1987.
Decided June 24, 1987.
Rehearing and Rehearing In Banc Denied July 17, 1987.
W. David Allen (argued), Allen T. Eaton, Allen T. Eaton & Associates, Washington, D.C., Frank M. McClellan, Temple University School of Law, Philadelphia, Pa., for appellants.
Frank C. Woodside, III (argued), John E. Schlosser, K.C. Green, Kathleen W. Kolodgy, Janet G. Abaray, Dinsmore & Shohl, Cincinnati, Ohio, James M. Beck, Edward W. Madeira, Nina M. Gussack, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for appellee.
Before SLOVITER and BECKER, Circuit Judges, and FISHER, District judge.*
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Dismissal of an action on the grounds of the statute of limitations is particularly anguishing when the victim is a minor, the injury grievous, and the alleged wrongful act repellent, if true. See O'Brien v. Eli Lilly & Co.,
I.
Julie Beth Urland and her parents William and Chloe Urland filed suit against Merrell-Dow Pharmaceuticals, Inc., the manufacturer of Bendectin, contending that Mrs. Urland's ingestion of Bendectin while pregnant was the cause of Julie's birth defects. Julie was born on February 8, 1972, with part of her left arm missing. This diversity action was filed on October 7, 1981 against Merrell-Dow in the United States District Court for the Eastern District of Pennsylvania. Merrell-Dow pled the two year Pennsylvania statute of limitations as a defense. The court bifurcated the statute of limitations issue, presenting that issue to the jury as a threshold matter.
II.
Following Julie's birth, the Urlands suspected that Mrs. Urland's ingestion of Bendectin might have been the cause of Julie's birth defects and Mrs. Urland made various inquiries. In 1972, Mrs. Urland contacted several of her treating physicians, the March of Dimes, and the Food and Drug Administration. In her letter to the FDA, she stated that she had taken Bendectin "at the approximate time when the limb buds [were] being formed" and referred to "the questions and doubts" she had concerning this medication. App. at 391. Copies of this letter were sent to the Hon. Hugh Scott of Pennsylvania and Merrell-Dow, then Merrell-National Laboratories Division of Richardson-Merrell, Inc.
The FDA responded that it would refer the letter to the physicians who monitor adverse drug experience, and requested that Mrs. Urland's physician complete the Drug Experience Report which it enclosed. Apparently, this was not done. Senator Scott wrote that he was referring the letter to the appropriate authorities.
Merrell-Dow also responded by letter from Richard H. O'Dillon, M.D., Director of the Product Development Clinical Research Group who stated that the letter was written for the purpose of "reliev[ing] your mind about your use of Bendectin during pregnancy." App. at 394. Dr. O'Dillon described various animal and human tests purportedly showing that Bendectin was not an agent having the potential for causing malformations and stated his "belief, that your child's malformation is unrelated to Bendectin ingestion." App. at 394. The Urlands claim that as a result, they did not sue Merrell-Dow at that time. Nevertheless, the Urlands continued to harbor suspicion that Bendectin was the cause of Julie's birth defects and discussed the possibility of bringing a lawsuit against Merrell-Dow.
In early September 1979, the Urlands were contacted by telephone by a reporter from the National Enquirer who stated that Mrs. Urland's letters had come to light in a trial in Florida involving Bendectin and birth defects. After the phone call Mrs. Urland told her husband about the Florida suit and the allegation made there that Bendectin caused birth defects. Mrs. Urland agreed to meet with the reporter and at that meeting told him that she was suspicious that Bendectin caused Julie's birth defects. Mrs. Urland also agreed to allow a picture of herself and Julie to be used in an article concerning Bendectin to be published by the Enquirer. The front page headline on the National Enquirer dated October 9, 1979 stated "New Thalidomide-Type Scandel--Experts Reveal ... COMMON DRUG CAUSING DEFORMED BABIES." App. at 397. The article quoted various medical sources as stating that Bendectin could cause birth defects, and described various cases of babies born with birth defects from mothers who had taken Bendectin during their pregnancy. The article also described an alleged coverup by Merrell-Dow of the test results indicating possible teratogenicity. The Urlands testified that they were not certain exactly when they purchased a copy of the National Enquirer edition containing their story, although Mr. Urland testified that he thought that he had purchased a copy on October 9, 1979, less than two years before the filing of the present lawsuit. However, he admitted he might have used that date because it appears on the newspaper. Mrs. Urland testified that she had since become aware that the edition dated October 9, 1979 hit the newsstands on October 2, 1979, and went off the newsstands on October 9, 1979.
It is clear that the interview with the reporter took place in September 1979, that at the time of the reporter's phone call Mrs. Urland became aware of the Florida trial alleging a connection between Bendectin and birth defects, and that this information revived her suspicion about Bendectin being a possible cause of Julie's birth defects.
III.
The applicable statute of limitations is set forth in 42 Pa.Cons.Stat.Ann. Sec. 5524(2), which states that an action to recover damages for personal injuries must be commenced within two years. However, the Pennsylvania Supreme Court recognizes an exception to the statute, asserted by the Urlands before the district court, which delays the running of the statute until the plaintiff knew, or through the exercise of reasonable diligence should have known, of the injury and its cause. Ayers v. Morgan,
In a recent explication of the discovery rule, the Pennsylvania Superior Court has set forth the applicable standard as whether "the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party's conduct." Cathcart v. Keene Industrial Insulation,
The Urlands relied in addition upon the equitable rule that a defendant will be estopped from asserting the statute of limitations if through fraud or concealment the defendant causes the plaintiff to relax vigilance or deviate from the right of inquiry. Nesbitt v. Erie Coach Co.,
The jury was given the following interrogatory:
Have Mr. and Mrs. Urland proved by a preponderance of the evidence that neither of them knew, or exercising reasonable diligence should have known, before October 7, 1979, that Bendectin was an operative cause of Julie Beth Urland's birth defect as alleged in their complaint?
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
(A "Yes" answer is in favor of Mr. and Mrs. Urland. A "No" answer is in favor of Merrell Dow Pharmaceuticals, Inc., and will terminate the case.)
The jury responded "no" to the interrogatory, and the district court entered judgment in favor of Merrell-Dow. The Urlands appeal, challenging various rulings of the district court.
IV.
Fraudulent Concealment
A.
The Urlands' principal argument on appeal is that the district court failed to appreciate the differences in the effect on the statute of limitations between the discovery rule and fraudulent concealment. They concede that under the discovery rule, the statute of limitations begins to run when plaintiffs knew or using reasonable diligence should have known of the claim. They contend, however, that under the fraudulent concealment doctrine, which they also term "the doctrine of estoppel," the "defendant is 'stopped' from raising the defense of the statute of limitations until such time as the plaintiff has actual knowledge of the fraudulent activity and the true nature of the events." Reply Brief at 4 (emphasis in original). Although it is questionable whether the Urlands preserved this argument in the district court,2 we reach the merits of the argument because it may touch upon plaintiffs' objection that they were entitled to a separate instruction regarding the effect of fraudulent concealment on Merrell-Dow's statute of limitations defense.
We reject at the outset the Urlands' extreme contention, which was reflected in the only written request for jury instruction on this issue that they submitted to the court, that Merrell-Dow was not entitled to use the statute of limitations defense at all. Plaintiffs cite as authority the language of this court's opinion in Ciccarelli v. Carey Canadian Mines, Ltd.,
We turn instead to the question of when, under Pennsylvania law, the statute of limitations begins to run when fraudulent concealment has been shown or, as in this case, assumed to have been shown. No Pennsylvania case suggests that the reasonable diligence standard applied to the tolling of the statute of limitations for purposes of the discovery rule is not also applicable when the plaintiff relies on fraudulent concealment for tolling. Although there is language in Pennsylvania cases that speaks of the statute being tolled "until actual knowledge arises," see Schwab v. Cornell,
It is evident from the Pennsylvania cases, however, that the Supreme Court of that state views tolling of the statute of limitations in terms of the same "knew or should have known" standard whether the statute is tolled because of the discovery rule or because of fraudulent concealment. For example, in the leading case of Smith v. Blachley,
The general rule was reiterated in Deemer v. Weaver,
If by any act of concealment or deceit, whether before or at the same time or after the act is committed, the wrongdoer hides from the innocent party the facts which would put him upon inquiry, the statute does not begin to run.
Id. at 88,
There are very few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence.
Id. at 90,
In any event, this court already has had occasion to consider the applicable rule under Pennsylvania law in a civil rights case where the plaintiff claimed that the defendant county and various of its officials were estopped from asserting the statute of limitations because of their actions in concealing the circumstances of the plaintiff's decedent's death while in police custody. See Swietlowich v. County of Bucks,
But the statute does not begin to run where the facts are suppressed and deliberately concealed from the plaintiff. Such conduct tolls the statute, and in that case it does not begin to run until the plaintiff has knowledge of the facts constituting the cause of action or by reasonable diligence should have had such knowledge.
Id. at 925 (emphasis added).
The Pennsylvania cases following Swietlowich reinforce our interpretation of Pennsylvania law set forth in that case. In Rothman v. Fillette,
We therefore reject the Urlands' contention that Pennsylvania would not apply the reasonable diligence test in fraudulent concealment cases.
B.
The Urlands also argue that the district court improperly refused to allow them to introduce evidence purporting to show fraudulent concealment by Merrell-Dow of test results showing that Bendectin causes birth defects. The district court refused to admit such testimony because it assumed concealment for purposes of the inquiry on the statute of limitations and therefore instructed the jury that they should assume that the O'Dillon letter was false and misleading. Thus, the court explained:
The only thing, as far as her state of mind is concerned, the only thing that is relevant is the information that she received from her inquiries. One of which is the O'Dillon response.
App. at 207. The Urlands argue that evidence of the purported fraud was necessary to show the "nature, quality and extent of the fraud and how it touched the Urlands not only through the O'Dillon letter but through their other contacts with the medical community." Appellant's Brief at 19.3
However, because the district court had instructed the jury to assume that the O'Dillon letter was false and misleading, it did not abuse its discretion in rejecting any further evidence on the concealment issue. It could have reasonably decided not to embark on the complex issue of whether, in fact, Merrell-Dow had concealed relevant and damaging test results in the context of the threshold decision of the statute of limitations. See Fed.R.Evid. 403.
V.
Discovery
The Urlands argue that the district court erred in charging the jury that they must determine whether the Urlands knew or should have known "that Bendectin was an operative cause of the birth defect." App. at 356. The Urlands argue that knowledge that Bendectin caused their daughter's birth defect is not itself sufficient to start the statute running, but rather that they were required to know of a causal connection between the birth defect and Merrell-Dow's conduct.
In Pennsylvania, the relevant inquiry for purposes of the statute of limitations is whether plaintiffs knew or reasonably should have known of the causal relationship between the injury and conduct causing that injury. Cathcart v. Keene Industrial Insulation,
The Urlands object to an example given to the jury by the district court to illustrate the notion of operative cause. In a supplemental instruction, the court stated:
Let me give you another example. Suppose at lunch you ate a lot of watermelon and fruit and your stomach is not feeling so good. You might say the fruit caused my upset stomach. That's the kind of thing we're talking about now. None of you are physicians, so you can't really give a medical opinion on causation, but you have, you know your body and you know what upsets your stomach and you can tell. That's the type of causation we are talking about.
App. at 379. The court explained to the jury that the causation to be considered in applying the discovery test is "[n]othing technical, nothing legal, nothing medical, but ordinary causation that we speak about every day. Cause and effect that we speak about every day." App. at 379.
The Urlands argue that the watermelon example does not focus upon the relationship between the injury and Merrell-Dow's conduct. However, the Urlands did not object to the instruction on this ground before the district court. In any event, looking at the instructions as a whole, we find no error.
VI.
Minor's Tolling Statute
Finally, the Urlands argue that even if they are barred by operation of the Pennsylvania discovery rule, the claim of their daughter Julie was revived by 42 Pa.Cons.Stat.Ann. Sec. 5533(b), which provides that the statute of limitations cannot run against a child during the period of minority.4 We reject Merrell-Dow's contention that the Urlands did not preserve this contention, and therefore turn to its merits.
Under prior Pennsylvania law, minors were subject to the adult statute of limitations. See, e.g., Walters v. Ditzler,
Thus, it has consistently been held that the minor's tolling statute does not act to revive claims that had already been barred by the applicable statute of limitations prior to the effective date of the Act. See Redenz v. Rosenberg,
The Urlands argue, relying on 1 Pa.Cons.Stat.Ann. Sec. 1928(c),5 that we should construe the minor's tolling statute liberally to effectuate its remedial and humanitarian purposes. However, the Pennsylvania courts found nothing in the legislative history of the minor's tolling statute indicating that the General Assembly intended the Act to apply to previously barred claims, and we are bound to follow their interpretation of their own statutes.6
VII.
Conclusion
We find no reversible error. We stress that in this case, the district court did not decide in favor of Merrell-Dow's statute of limitations defense on a pre-trial motion. Instead, the issue was fairly presented to a jury, which decided the relevant factual question adversely to the Urlands. The Urlands do not argue on appeal that there was insufficient evidence to support the jury's verdict.
For the reasons stated, the order of the district court entering judgment in favor of Merrell-Dow will be affirmed.
BECKER, Circuit Judge, dissenting.
The majority endorses the district court's special interrogatory, the function of which was to encapsulate the applicable law:
"Have Mr. and Mrs. Urland proved by a preponderance of the evidence that neither of them knew, or exercising reasonable diligence should have known, before October 7, 1979 [i.e., two years before their suit was filed], that Bendectin was an operative cause of Julie Beth Urland's birth defect as alleged in their complaint?"
This formulation effectively equates the discovery rule and the doctrine of fraudulent estoppel. It also constitutes a rejection of the actual knowledge standard that I believe Pennsylvania would apply to these facts, which implicate fraudulent estoppel. I therefore believe that the majority's approval of the interrogatory was erroneous.1 Because I also believe that it was not harmless error to fail to apply the applicable actual knowledge standard or to otherwise account for the plaintiffs' higher burden of discovering the operative cause of Julie Beth Urland's birth defects after defendant's presumptively fraudulent concealment, I respectfully dissent.
I.
Pennsylvania has long recognized that the purposes of the estoppel doctrine differ markedly from those for the discovery rule. See, e.g., Smith v. Blachley,
The critical area of concern is, of course, the level of knowledge that the Urlands must have obtained before the statute of limitations began to run against them despite the defendant's alleged fraudulent concealment. We must therefore examine the "actual knowledge" standard advocated by the Urlands2 and articulated by the Pennsylvania Supreme Court in several leading cases. See, e.g., Nesbitt v. Erie Coach Company,
In Nesbitt, the plaintiff was seriously injured on defendant's bus, but the blandishments of defendant's claims adjusters lulled her into a false sense of security and she let the statute of limitations pass before bringing suit. The trial court granted summary judgment for the defendant, but the Supreme Court of Pennsylvania refused to let that holding stand. It concluded that the facts as developed at that stage would constitute fraudulent concealment on the part of the defendant, and it therefore vacated the trial court's order to the contrary. The court stated
"If the circumstances are such that a man's eyes should have been open to what is occurring, then the statute begins to run from the time when he could have seen, but if by concealment, through fraud or otherwise, a screen has been erected by his adversary which effectually obscures the view of what has happened, the statute remains quiescent until actual knowledge arises."
The majority's handling of Schwab is similarly flawed. That leading case specifically eschewed any "should have known" standard in favor of the actual knowledge standard it adopted.
In Schwab, the purchaser of certain property employed a conveyancer to prepare the deed, to see that title was clear of encumbrances and to obtain comprehensive title insurance that was to guarantee good title. Although title to the home was subject to liability for unpaid taxes, the conveyancer wrote a letter assuring the purchaser that the title was clear of liens, also enclosing a title policy said to show that "the title [is] entirely clear of liens with the exception of certain rights guaranteed the telephone company and" the electric company.
Reversing the trial court's directed verdict for the conveyancer, the Supreme Court of Pennsylvania found that the tax sale of the house was the point of actual knowledge from which the statute should run. The court specifically held unavailing the contention that the plaintiff should have known from the title policy itself that the tax lien was not covered:
The fact that plaintiff had the title policy in his possession, which showed taxes excepted as a lien against which the title was not insured, does not alter the situation created by defendant's letter which transmitted it to him; the letter would effectually close plaintiff's eyes to the particular terms of the policy.
I also believe that the majority gives too much credence to those cases in which it finds support for its decision.5 For example, Smith v. Blachley,
The majority also relies on Deemer v. Weaver,
Because the suit was commenced almost fifteen years after the transaction upon which the remaindermen based their complaint, the trial court found the suit barred by the statute of limitations. The Supreme Court reversed, finding that "the decedent concealed from plaintiffs all facts which might have put them on notice that her statements ... were false."
In sum, in cases of fraudulent concealment, it is the defendant's lulling that negates any reason for the plaintiff to inquire further. I believe that the Pennsylvania jurisprudence means what it says: that there is a higher standard to overcome when fraudulent concealment has been shown. At the very least, the Pennsylvania cases do not and cannot mean what the majority says: that the discovery rule states the applicable test when fraudulent concealment has been shown.
II.
I also believe that the majority is wrong on policy grounds. The doctrine of fraudulent estoppel rests on a rationale that is wholly distinct from that for the discovery rule. See Ciccarelli,
In a discovery rule case without fraudulent concealment, the plaintiff has the burden of using due diligence to discover the operative cause of his injury. When a defendant fraudulently conceals its misconduct, however, the injured person has a double burden: not only is there a burden of discovering the basis for the claim, he or she must also discover the defendant's fraud. A "should have known standard" is therefore inappropriate because it is also necessary to account for plaintiffs' extra burden of acquiring knowledge of the fraud, without which they could not discover, or realize that prior to the fraud they had discovered, the basis for the claim. The way in which Pennsylvania appears to have accounted for this extra burden is by insisting on a higher threshold of knowledge on the part of the plaintiff before the claim will be barred--the "actual knowledge" standard identified and then repudiated by the majority. The district court failed to recognize this higher burden, and the majority not only does likewise, but also attempts to explain it away by a crabbed reading of the relevant Pennsylvania cases.
I also believe that, by adopting the same test for fraudulent estoppel as for original discovery, the majority unwittingly adopts a standard that may arguably encourage fraudulent concealment by defendants. Because, through the discovery rule, the statute of limitations does not begin to run until the plaintiff should have known of defendant's liability, application of the "should have known" standard in fraudulent concealment cases creates no greater burden; defendants face no penalty if they attempt to conceal their wrongdoing but are later discovered. In contrast, the actual knowledge standard "serves as a punitive measure and perhaps as a deterrent of future fraud." Hohri v. United States,
This policy analysis refines the issues surrounding the requisite level of knowledge beyond that engaged in by the Pennsylvania cases. A higher knowledge standard than "should have known" is necessary both to account for plaintiff's extra burden of overcoming defendant's fraud and to discourage fraud. While the Pennsylvania Supreme Court may not have explicitly adopted this particular policy analysis, at the very least its jurisprudence requires much more than notice inquiry and looks to a level that approximates actual knowledge. In my view, the correct test, as enunciated by the Pennsylvania cases, is that the statute runs only when a plaintiff actually knows that she has a reasonable basis for a claim against the defendant.
III.
A.
Even assuming that the tolling from fraudulent estoppel ends when the plaintiff should have known of the operative cause of her injury, I believe that the inquiry should focus entirely on the post-fraud period. In other words, the existence of effective fraud by the defendant should toll the statute, and the plaintiff should have two years to file suit after learning of the operative cause of the injury. In this case, the district court's instructions did not differentiate between the pre-fraud and post-fraud periods, and I believe that this failure constitutes an additional grounds for reversal.
The facts of this case demonstrate that a jury could find that the Urlands knew or through reasonable diligence should have known of the operative cause of Julie's birth defects at three different times: (1) in 1972 before Merrell-Dow is alleged to have engaged in the fraud that erected the concealing screen; (2) in September 1979, when a reporter from the National Enquirer called the Urlands, told them their letter to the FDA had come to light in a trial in Miami, and had Mrs. Urland pose for a picture with Julie, and (3) later in 1979, on whatever date Mr. Urland purchased the October 9, 1979 issue of the National Enquirer10 with the news story alleging that Merrell-Dow had concealed scientific information suggesting that Bendectin was a teratogen. Because the fraudulent concealment at least excused the failure to file suit until subsequent events revealed the danger of Bendectin, only the latter two dates are relevant to this case.
The district court, however, failed to distinguish these different periods in its charge to the jury or in its special interrogatory, both of which referred generally to the Urlands' knowledge before October 7, 1979. Furthermore, the district court allowed the defendant's counsel to argue to the jury that the Urland's should have known of the operative cause before the concealing screen erected. See App. at 283. Taking this opportunity, counsel marshalled the facts concerning Mrs. Urland's letters to Senator Scott, the March of Dimes, the FDA, and Merrell-Dow and argued:
she featured [Bendectin], it stood out, it was targeted, it was singled out, she acknowledges that she conducted an investigation, she acknowledges that she made an inquiry and she acknowledges that she harbored suspicion.
App. at 324. He concluded that the Urlands "had reason to know back in 1972" and that "a reasonable person would have known that was the operative cause." Id. By failing to direct the jury's attention to the post-fraud period, the trial court committed reversible error, even if the reasonable diligence standard were appropriate.
B.
By equating the doctrine of fraudulent concealment with the discovery rule without specifically focusing the jury's attention on the post-fraud period, the trial court rendered Merrell-Dow's fraud just one factual determinant of what the Urlands should have known and when they should have known it. The factual impact of fraud on the Urlands ability to know, however, depends on the extent of that fraud. I therefore believe that the trial court was in error when it excluded the facts relevant to the fraud, for in so doing, the court kept from the jury vital information concerning the impact of the fraud on what the Urlands should have known.
Although it remains to be proven at trial, the plaintiffs alleged by proffer that Merrell-Dow erected a concealing screen by deceiving the medical community in general and the Urlands in particular about the teratogenic properties of Bendectin. Plaintiffs offered to prove that Merrell-Dow had tested animals and found that Bendectin tended to cause birth defects, but that the company failed to disclose the results of the research to either the Food and Drug Administration (FDA) as required by law or to the Urlands in response to their letter to Merrell-Dow. Plaintiffs contend that because the FDA was unaware of the teratogenicity of Bendectin, the medical community, for which FDA was the surrogate, was unaware of the risks involved with the drug; therefore, the agency could not inform the Urlands directly in response to their inquiry. Additionally, Merrell directly responded to the Urlands' letter of inquiry by informing them that "the drug was not an agent that has the potential for causing malformations." App. at 293-94 (letter by Merrell). It was only this letter from Merrell to the Urlands that the trial court allowed in as evidence, instructing the jury to assume that it was "misleading."
Merrell's alleged misrepresentations to the FDA, however, also may have prevented the Urlands from discovering the dangers of Bendectin. The district judge excluded evidence of these misrepresentations.
While I disagree with the majority that the reasonable diligence standard is proper, if that standard is to be applied, the jury should have before it the full information concerning what the plaintiffs could discover with reasonable diligence. By excluding this information from the jury, the trial judge deprived the jury of highly probative information concerning the effect of Merrell's actions on what the Urlands should have reasonably discovered. I therefore believe that the district court's exclusion of evidence concerning the alleged fraud was prejudicial and constitutes an independent basis for reversal.
IV.
It may well be that the Urlands are time-barred from bringing their claim because of the information they acquired from the National Enquirer reporter. But it is up to a jury, properly charged as to the applicable law, to determine if that information was strong enough to overcome the concealing screen and give the plaintiffs the knowledge that they have a reasonable basis for a claim. Because the trial court's charge allows a variety of mistaken results, I would reverse and remand for a new trial.
Notes
Hon. Clarkson S. Fisher, Chief Judge, United States District Court for the District of New Jersey, sitting by designation
The district court instructed the jury that
I am asking you to assume in this first phase of the case that the Dr. O'Dillon letter is inaccurate and misleading.
* * *
The reason it's important for you to assume that the O'Dillon letter is inaccurate and misleading is that that bears to some extent, it seems to me, and I so instruct you, on the state of mind of Mr. and Mrs. Urland in 1979, which is the crucial issue before the case at this point, in September and October of 1979.
App. at 351-352.
Plaintiffs did not clearly and unambiguously object to the interrogatory given to the jury on the ground that it erroneously included the "should have known" language, did not proffer either an instruction or interrogatory to the effect that the statute begins to run only after "actual knowledge", and did not object to the charge given on this ground. In fact, during the pre-charge conference when plaintiffs' counsel, Mr. Eaton, argued for a separate interrogatory on fraud, he included a "reasonably should know" standard:
See, my problem is, I believe the legal test is, and we can offer authorities on it if you give me a little time to look at it, is that the statute is tolled to such time as the plaintiffs know or reasonably should know that the effects of the fraud are no longer operative on them. And I believe that that should be a separate question from the straight discovery, other than the straight discovery issue which we're submitting to the jury now.
App. at 276 (emphasis added). Nor did he "correct" the court when in the same colloquy it summarized plaintiffs' position as including both the "know" and "reasonably should know" standard to be used in overcoming the fraud for purposes of statute of limitations. See App. at 280, 282.
The Urlands also argue that the district court erred in instructing the jury that Merrell-Dow denied that the O'Dillon letter was inaccurate and misleading and that Merrell-Dow reserved the right to have that issue tried later in the case. However, the record is clear that the Urlands agreed to this charge. See App. at 207
The statute provides:
If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced. Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter. As used in this subsection, the term "minor" shall mean any individual who has not yet attained the age of 18.
The statute provides:
All other provisions of a statute shall be liberally construed to effect their objects and to promote justice.
The Urlands also argue that failure to apply the minor's tolling statute to revive Julie's claim would constitute a violation of equal protection. The Urlands did not raise the equal protection issue before the district court, and therefore this issue cannot be raised on appeal
In addition, the charge to the jury speaks of "the state of mind of Mr. and Mrs. Urland in 1979," two years before they filed suit, but similarly fails to distinguish between that which was known before and after the presumptive fraud. By finding that the misleading letter bears only "to some extent" on the Urlands' state of mind, the trial judge improperly minimized the concealing effect of the fraud--an especially harmful mistake, because no evidence concerning the scope and extent of the fraud was allowed to be presented to the jury. Moreover by encapsulating the reasonable diligence inquiry, it suffers from the same basic infirmity as the interrogatory: it failed to adopt the actual knowledge standard
The majority argues that "it is questionable whether the Urlands preserved this argument in the district court." Maj.Op., at 1272. Because its opinion goes on to address the issue, the majority must have resolved its doubts in favor of preservation. Moreover, this resolution best comports with the record. As counsel for the plaintiff clearly stated at one point:
We're submitting this case to the jury only on the issue of when ... was the operative cause discovered or discoverable with exercise of reasonable diligence. We do not believe that would be sufficient to resolve the estoppel claim, and we understand the Court's prior ruling, but you understand I'm trying to preserve it, your Honor.
App. at 273.
As has been said long ago, "[i]t would be a laborious and unprofitable task to examine all the cases which have been decided on the statute of limitations." Fries v. Boisselet, 9 Serg. & R. 128, 130 (1822). I similarly do not believe it useful to offer extensive interpretation of all but the most important Supreme Court of Pennsylvania cases relied on by the majority. The other cases I find unpersuasive or inapplicable. For example, although the court in Schaffer v. Larzelere,
Although the majority finds Nesbitt feeble in this context, it relies on the case as good law in order to limit this Court's pronouncement that, "if through fraud or concealment the defendant causes the plaintiff to relax vigilance or deviate from the right of inquiry, the defendant is estopped from invoking the bar of limitation of action." Ciccarelli v. Carey Canadian Mines, Ltd.,
None of these cases, it should be noted, were decided after Nesbitt, in which the Supreme Court of Pennsylvania embraced the actual knowledge standard for application upon remand. As the latest pronouncement of the highest court, Nesbitt deserves special weight that cannot be accorded these earlier cases
The Pennsylvania Supreme Court in Smith explicitly recognized that "a distinction is made in regard to the starting point of the statute [of limitations] between fraud completed and ending with the act which gives rise to the cause of action, and fraud continued afterwards in efforts or acts tending to prevent discovery."
The discovery rule concerns the diligence of the plaintiff, as it is "based upon the recognition that if a party, despite the exercise of reasonable diligence, cannot ascertain his injury, the statute of limitations should not run against his claim." Anthony v. Koppers Co., Inc.,
Thus, under both the doctrine of fraudulent estoppel and the discovery rule, "the statute is tolled only for those who remain ignorant through no fault of their own." Morgan v. Koch,
The discovery rule, in contrast, asks "not what did the plaintiff know of the injury done him, but what might he have known by the use of the means of information within his reach with the vigilance the law requires of him?" Med-Mar, Inc. v. Dilworth,
This assumes, of course, that the jury would find that Mr. Urland purchased and read the newspaper more than two years before plaintiffs filed suit