Norgart v. Upjohn

In Norgart v. Upjohn (1999) 21 Cal.4th 383, the Supreme Court set forth this effort to clarify Bristol-Myers Squibb v. Superior Court (1995), 32 Cal.App.4th 959: "To the extent that Bristol-Myers Squibb reads Jolly to require that a plaintiff must do more than suspect a factual basis for the elements of a cause of action in order to discover the cause of action--at one point it states that the 'formula in Jolly is (1) knowledge of one or more elements, and (2) knowledge of facts creating, or which in a reasonable person would create, a suspicion of the others' ( Bristol-Myers Squibb Co. v. Superior Court, supra, 32 Cal.App.4th at p. 965)--it reads it wrong. . . . To that extent, it is disapproved." (Norgart, supra, 21 Cal.4th at p. 410, fn. 8.) Thus, a plaintiff need not do more than suspect a factual basis for the elements of a cause of action (not the elements themselves) in order to discover her cause of action. In the Norgart case, there were stipulated undisputed facts that, prior to mid-1986, the decedent's father (plaintiff) had formed a belief that an "'individual or individuals . . . did something wrong to the decedent that caused her to take her own life,' and had begun to contemplate bringing an action for wrongful death. . . . The 'individual or individuals' in question were the decedent's husband , for what he suspected was physical abuse, and her psychiatrist , for what he suspected was professional negligence." ( Norgart, supra, 21 Cal.4th at pp. 404-406.) However, the plaintiff father and mother continued to investigate potential drug manufacturer involvement in the wrongful death of the decedent, who had committed suicide by overdosing on prescription drugs. Under section 340, subdivision (3), the parents' action accrued upon the date of death, but they waited too long, five years (1991), to sue the manufacturer. There was no basis to delay the accrual under the discovery rule, since the father admitted to having suspicions early on (pre-1986) that an individual or individuals had done something wrong to the decedent to cause her to commit suicide. In Norgart, supra, 21 Cal.4th 383 the parents were deemed to have discovered their wrongful death cause of action against the manufacturer soon after the death, at the time they learned of the decedent's depression and suicide attempts, which included an overdose of the manufacturer's drug. This was enough to start the limitations period running, because a "suspicion" of one or more of the elements of a cause of action, "coupled with a knowledge" of the others, "will commence the applicable limitations period." (Jolly v. Eli Lilly & Co. (1988), 44 Cal.3d at p. 1112, ) Also, suspicion of the elements of a cause of action, even without sure knowledge of them, will start the time period running, because: "A plaintiff need not know the 'specific "facts" necessary to establish' the cause of action. Rather, such words merely make plain what is true a fortiori--the sufficiency of suspicion of one or more of the elements with knowledge of the others." ( Norgart, supra, 21 Cal.4th at p. 398, fn. 3.)