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Savage v. Old Bridge-Sayreville Medical Group11/24/1993
This appeal presents a difficult exercise in application of the discovery rule. The case arises, as have several recent cases, from an experience of tooth discoloration due to medical treatment with tetracycline antibiotics in early childhood.
The history and principles underlying the discovery rule have been examined by us on numerous occasions, see, e.g., Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 527 A.2d 66 (1987), and need no further elaboration here.
Suffice it to say that the rule's "essential purpose * * * is to avoid harsh results that otherwise would flow from mechanical application of a statute of limitations." [ Vispisiano, supra, 107 N.J. ] at 426 [527 A.2d 66]. Accordingly, the doctrine "postpon the accrual of a cause of action" so long as a party reasonably is unaware either that he has been injured, or that the injury is due to the fault or neglect of an identifiable individual or entity. Id. at 426-27 [527 A.2d 66]; accord Lynch v. Rubacky, 85 N.J. 65, 70 [424 A.2d 1169] (1981); Lopez v. Swyer, [62 N.J. 267, 274, 300 A.2d 563 (1973)]. Once a person knows or has reason to know of this information, his or her claim has accrued since, at that point, he or she is actually or constructively aware "of that state of facts which may equate in law with a cause of action." Burd v. New Jersey Tel. Co., 76 N.J. 284, 291, 386 A.2d 1310 (1978).
[ Abboud v. Viscomi, 111 N.J. 56, 62-63, 543 A.2d 29 (1988).]
Plaintiff was born in 1961. Because her status as a minor tolled the running of the statute of limitations until she was twenty-one, the question in her appeal is whether a hearing is required to determine if plaintiff was "reasonably unaware" before her twenty-third birthday that she had suffered the injury due to the fault
or neglect of an identifiable individual or entity. She filed her complaint in 1989, alleging that she was unaware until 1988 that her injury was due to the fault of another. The trial court believed that no hearing on her claim of unawareness was required. It ruled:
Here the plaintiff was aware of her injury, namely the tooth discoloration, during her childhood, and she was aware of that when she reached the age of maturity. She was also aware that the medication given to her as a child may have caused the discoloration. That is, she was aware of the likely cause of her injury. Thus at the time she reached the age of maturity, she was aware of the state of facts from which she could reasonably learn if they equated in law with a cause of action.
The Appellate Division reversed, 260 N.J. Super. 417, 616 A.2d 1307 (1992), reasoning that although plaintiff was indeed aware of the fact that she had suffered injury and that medication was a likely cause of the injury, the record did not demonstrate that she was reasonably aware that the injury was due to any fault in the medication or the care given. The Appellate Division distinguished our holding in Apgar v. Lederle Laboratories, 123 N.J. 450, 588 A.2d 380 (1991), which held time-barred the claim by one who knew by the time that she reached her twenty-first birthday that her teeth had been discolored and, based on information from several dentists, that medication she had taken as a child had produced
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