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Samuels v. Mix12/30/1999
nt's knowledge. (Maj. opn., ante, at p. 22.)
But there is merit in the notion that where a litigant has not willfully concealed information, his defense against a stale claim should not depend on his ability to prove when his opponent discovered that information, or should have done so. This principle supports the already-prevailing rule that the burden of proving commencement of a limitations period was delayed by failure to discover the claim is upon the person who seeks the benefit of the delay. Without compelling justification, the majority would depart, for purposes of attorney malpractice, from this established rule.
In fact, if there is any case in which the plaintiff should assume the delayed-discovery burden, it is an action for legal malpractice. The defendant in such litigation faces unique and unfair difficulties if forced to prove the time of his opponent's actual or constructive discovery. Here, in particular, the answer to the crucial questions -what the plaintiff knew or suspected and when she knew or suspected it - is peculiarly and exclusively within the plaintiff's control.
This is because discovery of one lawyer's malpractice will most often arise, as it did here, from the substance of the client's consultations with another attorney. Proof of the time of discovery will thus depend, as it did here, on the content of those interviews. But such attorney-client communications are confidential and privileged by law. (Evid. Code, ยง 954.) Unless the client waives the privilege, neither he nor the attorney he consulted can be compelled to disclose the substance of their discussions.
If the client bears the burden of proving when the malpractice claim was discovered, as the trial court ruled here, he may feel obliged, as plaintiff Samuels did here, to present evidence about the timing and nature of his consultations with a second lawyer. But if, as the majority hold, that burden rests with the attorney sued, there is no necessity, and no incentive, for the client to waive the privilege to aid his adversary in establishing a limitations defense. No lawyer worth his salt would allow his client to do so. Thus, it is unclear at best how an attorney sued for malpractice will be able to sustain his burden of proving when the client's discussions with a second lawyer led to actual or constructive discovery of the malpractice claim.
Accordingly, I disagree with the majority's conclusion that the jury received an incorrect instruction about the burden of proof. But even if that instruction were erroneous, a conclusion also reached by the Court of Appeal, I am persuaded, contrary to the majority and the Court of Appeal, that the error was harmless on this record.
A malpractice statute of limitations triggered by actual or constructive discovery begins to run when the plaintiff knows she has suffered injury and suspects or has reason to suspect that professional blundering is its cause, whether or not she is aware of the precise legal theory or remedy by which redress is available. (E.g., Gutierrez, supra, 39 Cal.3d 892, 897-898 [medical malpractice].) Here, those requirements were clearly met more than one year before plaintiff Samuels filed this malpractice suit against defendant Mix.
The pertinent facts are essentially undisputed. Samuels suffers from eosinophilia myalgia syndrome, an incurable, progressively debilitating, and potentially fatal blood and muscle disorder. The disease has been linked to the drug L-trytophan, which Samuels ingested. Samuels retained defendant Mix to pursue her remedies against Showa Denko, the drug's manufacturer. Samuels hoped and believed the case was worth at least $2 million and was dis
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