Anesthesia, however, is injected deliberately, intentionally, with plaintiff's and defendant's knowledge. Thus the plaintiff has less excuse for failing to connect the injury with the cause.
The distinction may be relevant to determining when the plaintiff reasonably should have discovered the cause of his harm.
However, we do not understand its relevancy in determining whether the discovery rule should be applied. Whether the defendant's act is known or unknown, intentional or inadvertent, does not really reflect on the plaintiff's ability to relate the defendant's act to the injury eventually occurring, thus the harm manifests itself years after the defendant's act. Unless the defendant's act is of a nature that it causes the injury and the defendant's causal relationship to be immediately known or knowable, we do not believe the deliberate or accidental quality of that act affects the applicability of the discovery rule.
(2). A wing nut, in contrast to anesthesia (and most other drugs), retains its identity; thus the defendant's ability to defend a stale claim is enhanced.
This distinction would appear to be entirely irrelevant unless the defendant denies that he injected the drug or medicine, a fact which is usually uncontested and evidenced by medical records or bills for payment. If he does not deny administering the drug, its incapacity for retaining an identifiable character is irrelevant to his ability to defend a stale claim. Furthermore, if such a distinction were adopted, the plaintiff's ability to take advantage of the "discovery" rule would be totally dependent upon the defendant's truthfulness in pleading; a simple denial of the injection, or of injecting a particular allegedly harmful drug, could force a prohibitive application of the statute of limitations. We cannot believe the Fernandi court intended the discovery rule to be so easily circumvented.
(3). The wing nut is probative of negligence and harm, whereas anesthesia requires the jury to base its decision largely on the plaintiff's credibility and expert testimony on the allegedly negligent administration or selection of the drug. The time lapse in a wing nut case does not encourage a false or spurious claim. The time lapse in a drug case does encourage such claims.
This is certainly the most practical and compelling distinction in the Rothman opinion. The discovery rule may create a greater temptation to try a false or spurious claim, in the hope that the passage of time will have reduced the defendant's ability to defend himself. However, in an equal number of cases, the plaintiff's ability to prove an already difficult case may be substantially impaired by the harm to his credibility created by his delay, by the absence of now available witnesses, etc. The advantages and disadvantages created by the lapse of time should roughly balance out. Any decision to make a discovery rule available must have been cognizant of the problems inherent in long-delayed law suits. Certainly it would not seem proper to determine the availability of the discovery rule by the court's evaluation of the merit or the clarity of the plaintiff's cause of action. The jury is capable of weighing credibility and expert testimony; it is not the court's function to deprive the plaintiff of the opportunity for jury consideration merely because the court finds his claim a difficult or even an unlikely one. Surely the New Jersey Supreme Court did not intend to make the discovery rule exception to the limitations statute available only to those plaintiffs with clear-cut cases.
Finally, even if we accepted the Rothman criteria as generally valid, we would find the plaintiff's cause of action in this case to be distinguishable. It is true that here, as in Rothman, the plaintiff "slept" on her rights for almost two years even after the discovery of the harm.
However, the Rothman plaintiff apparently was injured and in pain almost immediately after the defendant's allegedly negligent act; whereas the plaintiff's decedent here did not begin to suffer for several years, at a time when the causal relationship of the defendant's act would be far less evident. The substantial harm accrued to the Rothman plaintiff almost immediately; the plaintiff's decedent here apparently did not suffer substantial harm for nearly twenty years. Compare Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949). Therefore, the plaintiff's delay in bringing the action is not only very understandable, but arguably was necessary if substantial harm was to be proven. See Developments in the Law: Statute of Limitations, 63 Harv.L.Rev. 1177, 1200-01 (1950).
As far as the identifiable nature of Thorotrast is concerned, none of the defendants deny that the named companies manufactured and sold the drug, nor do they deny that the plaintiff received an injection of the drug at the University of Pennsylvania Hospital. Their substantive defenses would appear to rest on absence of negligence and absence of proximate cause. Thus the drug's lack of a permanent insignia in the decedent's body would not appear relevant to the defendants' ability to defend this claim.
Finally, the decedent's death and longterm physical infirmities are well-documented; there can be little doubt that the decedent has suffered, and has been harmed. Thus the credibility of the plaintiff's case will be a relatively unimportant factor. Indeed, it would appear that the most crucial evidence in the case will be that of the expert medical witnesses with respect to the standard of care and to proximate cause. The ability of the jury to comprehend and evaluate this testimony is, in all likelihood, greater than the ability of a jury would have been nineteen years ago.
For all of the above reasons, the motion of the defendants Cyanamid and Tenneco for summary judgment in this action is hereby denied.
And now, this twentieth day of February 1968, it is ordered that the motion of defendant Trustees of the University of Pennsylvania to dismiss plaintiff's wrongful death and survival action be and the same is denied.
It is further ordered that the motion filed by defendants, American Cyanamid Company and Tenneco Chemicals, Inc., for summary judgment is also hereby denied.
And now, this twenty-eighth day of February, 1968, it appearing that our opinion in the above matter dated February 20, 1968 contained one incorrect finding of fact, and it further appearing that the order attached to the opinion failed in part to conform with the conclusions contained in that opinion, the opinion and order are hereby amended by the following:
(1) The statement at page 2 of the opinion that the plaintiff's decedent returned to the University of Pennsylvania Hospital in 1963 is incorrect and should be stricken. The decedent apparently did not return to the Pennsylvania hospital after 1949. The Court was aware of the correct facts when deciding the merits of the issues presented. This amendment to the opinion is not, in our opinion, relevant to the merits of the case, and has no effect on our decision.