ARGUED: April 17, 2019
Appeal from the United States District Court for the Eastern
District of Pennsylvania D.C. Civ. Action No. 5-17-cv-00621
District Judge: Honorable Edward G. Smith
Charles L. Becker [ARGUED] Ruxandra M. Laidacker Kline &
Specter Joseph A. Osborne, Jr. Andrew Norden Ami Romanelli
Osborne & Francis Counsel for Appellant
E. Becker Troy S. Brown Morgan Lewis & Bockius Bruce G.
Jones [ARGUED] Faegre Baker Daniels Michael J. Kanute Faegre
Baker Daniels Counsel for Appellees
Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges.
SCIRICA, Circuit Judge.
discovery rule delays the start of the statute-of-limitations
period until a plaintiff knows or reasonably should know she
has suffered an injury caused by another. This appeal
requires us to decide whether a reasonable juror could credit
plaintiff Marilyn Adams's contention that she reasonably
did not know until February 12, 2015 that the hip implant
made by defendant Zimmer, Inc., caused her the injuries for
which she now sues. When Adams brought a defective design
claim against Zimmer in February 2017, Zimmer contended she
should have discovered her injury by January 2015, when she
agreed to undergo hip implant revision surgery. The District
Court accepted Zimmer's argument and granted summary
judgment on the ground that Adams's claim was untimely
under the discovery rule and two-year statute of limitations.
In doing so, however, the District Court resolved issues of
fact regarding the timing of Adams's discovery that her
hip pain was caused not by her poor adjustment to the implant
but instead by the implant itself. Because Pennsylvania law
delegates to a factfinder any genuine dispute over when a
plaintiff in Adams's position should reasonably have
discovered her injury, we will reverse and remand.
Marilyn Adams had a long and difficult history with hip
pain. Adams first sought medical help from
orthopedic surgeon Dr. Prodromos Ververeli in September 2010;
he diagnosed her with advanced degenerative arthritis and
recommended a total hip replacement. Dr. Ververeli counseled
Adams that the hip replacement would last fifteen to twenty
years, though he warned her the implant may wear down with
use before then. Adams agreed to a hip replacement and Dr.
Ververeli performed the procedure on January 18, 2011,
implanting a Zimmer hip device.
had no further problems with her hip for roughly a year and a
half, but in late 2012, she started experiencing severe pain.
Dr. Ververeli described the cause of her problems as
"unclear" and the diagnostic process as
"difficult." App'x 958, 228. He ran various
tests attempting to identify the pain's source,
eventually diagnosing Adams with an infection. Although he
warned Adams that a severe infection may require removing
part of her hip replacement, he was able to successfully
treat it in 2013 without removing the implant.
hip problems returned in November 2014, when she dislocated
her hip while spending several months in Florida. Doctors in
the emergency room there put the implant back in place, and
Adams saw Dr. Ververeli when she returned home in early
January 2015. Dr. Ververeli ordered various diagnostic tests,
and an x-ray showed calcification around the implant. Dr.
Ververeli testified he thought this abnormal result
"could have been possibl[y] related to ongoing tissue
reaction or a reaction to the actual dislocation event."
App'x 232. He ordered a CT scan, which showed a local
adverse tissue reaction.
Ververeli recommended hip revision surgery for Adams to
replace the metal femoral head of her hip implant with a
ceramic one. Though Adams was distraught to undergo hip
surgery again, she consented to the operation. She went in
for a pre-operative visit on January 30, 2015. Records from
the visit indicate Adams was suffering from "right total
hip metallosis," App'x 166, which Dr. Ververeli
testified is defined, "typically," as "metal
wear that then causes a reaction to the surrounding
tissues"; he added the precise reaction varies depending
on the individual patient. App'x 218. Adams testified she
did not recall hearing about metallosis, but remembered being
distraught over her upcoming surgery. She went into Dr.
Ververeli's office on February 9 to sign an informed
consent form, which generally repeated the information she
had been told in her pre-operative visit.
underwent the revision surgery on February 12, 2015. Though
Dr. Ververeli expected to replace only components of the
implant around the hip socket, what he discovered during the
surgery called for a different-and much more
drastic-revision: upon opening Adams's hip, Dr. Ververeli
found her muscle had largely deteriorated and metal debris
had taken over much of the area. He discovered a pseudotumor
roughly the size of a baseball. Rather than replacing the
socket and implant lining, which were in fact largely
"intact," App'x 235, he replaced all of the
main components of the implant hip, which had been
discharging excessive and potentially toxic metal debris into
Adams's hip. Dr. Ververeli told Adams about his
intraoperative findings after her surgery.
continued to experience hip pain after the surgery, and on
February 10, 2017, she brought a product liability action
against Zimmer. She alleged the implant was defectively
designed in a way that led to "excessive fretting"
(i.e., scraping between the pieces of the implant),
corrosion, and metal wear debris; she further alleged Zimmer
had failed to warn her of those risks. Zimmer moved for
summary judgment on the ground that Adams's claims were
time-barred. The District Court agreed and entered summary
judgment on statute-of-limitations grounds. Adams
Pennsylvania, a prospective plaintiff has two years to bring
a design defect claim like Adams's. See 42 Pa.
Cons. Stat. § 5524(2). The two-year statute of
limitations generally begins to run "when an injury is
inflicted." Wilson v. El-Daief, 964 A.2d 354,
361 (Pa. 2009). But "where the plaintiffs injury or its
cause was neither known nor reasonably ascertainable,"
the "discovery rule" tolls the statute of
limitations. Nicolaou v. Martin, 195 A.3d 880, 892
(Pa. 2018); Fine v. Checcio, 870 A.2d 850, 858 (Pa.
2005). The discovery rule accordingly protects parties who
are reasonably unaware of latent injuries or suffer from
injuries of unknown etiology. Nicolaou, 195 A.3d at
892 & n.13; Fine, 870 A.2d at 858.
the Pennsylvania discovery rule, the "commencement of
the limitations period is grounded on 'inquiry
notice' that is tied to 'actual or constructive
knowledge of at least some form of significant harm and of a
factual cause linked to another's conduct, without the
necessity of notice to the full extent of the injury, the
fact of actual negligence, or precise cause.'"
Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa.
2011) (quoting Wilson, 964 A.2d at 364). The statute
of limitations accordingly begins to run when the plaintiff
knew or, exercising reasonable diligence, should have known
(1) he or she was injured and (2) that the injury was caused
by another. See Coleman v. Wyeth Pharms., 6 A.3d
502, 510-11 (Pa. Super. Ct. 2010). That "reasonable
diligence" standard is an objective one, but at the same
time "sufficiently flexible" to "take into
account the differences between persons and their capacity to
meet certain situations and the circumstances confronting
them at the time in question." Fine, 870 A.2d
at 858 (internal citation omitted); see also
Nicolaou, 195 A.3d at 893. Plaintiffs generally will not
be charged with more medical knowledge than their doctors or
health care providers have communicated to them. See
Wilson, 964 A.2d at 365. A plaintiff bears the burden of
showing her reasonable diligence. Nicolaou, 195 A.3d
balance struck in Pennsylvania" between the rights of
diligent plaintiffs and defendants who should not have to
face stale claims "has been to impose a . . . limited
notice requirement upon the plaintiff, but to submit factual
questions regarding that notice to the jury as
fact-finder." Gleason, 15 A.3d at 485.
"[T]hat the factual issues pertaining to Plaintiffs'
notice and diligence are for a jury to decide" is a
"well-established general rule" in Pennsylvania.
Nicolaou, 195 A.3d at 894; see also Carlino v.
Ethicon, Inc., 208 A.3d 92, 104 (Pa. Super. Ct. 2019).
"The interplay between summary judgment principles and
application of the discovery rule requires us to consider
whether it is undeniably clear that [Adams] did not use
reasonable diligence in timely ascertaining [her] injury and
its cause, or whether an issue of genuine fact exists
regarding [her] use of reasonable diligence to ascertain
[her] injury and its cause." Gleason, 15 A.3d
at 486-87. If such an issue of diligence or notice exists, it
is a jury's role to resolve it. "Where, however,
reasonable minds would not differ in finding that a party
knew or should have known on the exercise of reasonable
diligence of his injury and its cause, ... the discovery rule
does not apply as a matter of law." Fine, 870
central issue in this case is whether a jury could conclude
Adams reasonably did not discover her injury until February
12, 2015, when Dr. Ververeli apprised her of his
intraoperative finding that her implant had deteriorated and
emitted metal shards into her hip. The District Court
concluded there can be no dispute that the information
available to Adams in her preoperative visits would have put
a reasonably diligent person on notice of her injury as a
matter of law. In reviewing that determination at summary
judgment we must "view the record and draw inferences in
a light most favorable to" Adams as "the non-moving
party." Debiec v. Cabot Corp., 352 F.3d 117,
128 n.3 (3d Cir. 2003). Doing so, we cannot conclude that
summary judgment was appropriate. As in the several
Pennsylvania Supreme Court cases before this one, the
question "[w]hether [a plaintiff] should have acted with
greater diligence to investigate" or otherwise should
have known of her injury earlier "can only be seen as an
issue of fact." Gleason, 15 A.3d at 487.
Pennsylvania Supreme Court has paid particular heed to the
jury's role in determining reasonable diligence in
medical contexts. The cause of a patient's pain or
discomfort can be difficult for her to identify, so courts
rarely impute knowledge as a matter of law. The Court
explained that principle in Fine v. Checcio, 870
A.2d 850 (Pa. 2005), its seminal treatment of the discovery
rule in the context of etiological uncertainty. There, Fine
had experienced facial numbness after having his wisdom teeth
extracted. His doctor advised him the numbness was a normal
side-effect of the surgery, but the numbness persisted for
nearly a year. When Fine filed a malpractice claim about two
years and one month after his wisdom tooth surgery, his
doctor successfully obtained a summary judgment; the doctor
defendant argued the limitations period began on the date of
the extraction because Fine knew his injury-numbness-then.
But the Pennsylvania Supreme Court disagreed. It held that a
reasonable jury could understand Fine's numbness as
"indicative of two distinct phenomena"-temporary
side effect or permanent injury. Id. at 861. Because
of that factual uncertainty, a jury might determine a
reasonable person in his position neither knew nor should
have known of his injury immediately after surgery.
Court has continued to emphasize the principle that
diagnostic uncertainty usually creates a jury question. In
Wilson v. El-Daief, 964 A.2d 354 (Pa. 2009), for
instance, the Court held the plaintiffs immediate suspicion
of surgical error after surgery did not start the statutory
clock as a matter of law because her surgeon denied error and
the second opinion she sought suggested surgical error as
only one of several possible explanations for her pain.
Id. at 365-66. See also Gleason, 15 A.3d at
486-87 (similar). Most recently, in Nicolaou v.
Martin, 195 A.3d 880 (Pa. 2018), the Court affirmed that
principle: Nicolaou was bitten by a tick in 2001 and
immediately sought a Lyme disease test; though her symptoms
persisted, that test, and three others administered over the
next half dozen years, all came back negative. She eventually
saw a fifth healthcare provider in 2009, who diagnosed her
with probable Lyme disease and recommended an advanced test.
Nicolaou initially declined to pay for the test for financial
reasons, but ultimately took it in February 2010. That test
confirmed she had Lyme disease. The Court held that
Nicolaou-who brought suit about two years after the February
2010 test-should be able to present her case for reasonable
diligence to a jury. Id. at 894-95.
the plaintiffs in these Pennsylvania Supreme Court cases,
Adams has maintained that she acted with reasonable diligence
yet did not discover her injury until February 2015.
Adams's claim here is that she did not know the nature of
her injury or that it was the deterioration of the Zimmer
implant, rather than her reaction to the implant, that was
the cause. Just as a jury could find the plaintiff in
Fine ascribed his pain to temporary post-operative
numbness, so a jury could reasonably conclude Adams ascribed
her pain to her own poor adjustment to the implant; it was
only when her doctor discovered new information
"intraoperatively" that she would know the
implant's disintegration, rather than her reaction to the
implant, was causing her pain. App'x 238.
sure, Pennsylvania's discovery rule asks only when Adams
knew she was injured and that her injury was caused by
another. For the statute of limitations to start, she
"need not know that [the] defendant's conduct is
injurious." Wilson, 964 A.2d at 363. But that
limitation on the requirements for notice was developed in
order to hold plaintiffs to a standard of reasonable
diligence: it operates to bar a claim where "the
plaintiff has failed to exercise diligence in determining
injury and cause by another, but has limited relevance in
scenarios in which the plaintiff has exercised diligence but
remains unaware of either of these factors."
Id. Zimmer does not dispute that Adams investigated
her claim in coordination with Dr. Ververeli, see
Oral Arg. Recording at 26:03-26:48, and a factfinder could
reasonably determine that Adams had exercised reasonable
diligence. This strongly counsels against determining notice
as a matter of law.
Supreme Court precedent further illustrates that while the
discovery rule does not require the patient to have "a
precise medical diagnosis" to start the statute of
limitations, "a lay person is only charged with the
knowledge communicated to him or her by the medical
professionals who provided treatment and diagnosis."
Nicolaou, 195 A.3d at 893; see also Wilson,
964 A.2d at 365. Adams has offered evidence that Dr.
Ververeli himself did not know her injury and its cause until
he was in the middle of operating on her hip in February
2015. Dr. Ververeli testified that his understanding of the
injury and its cause fundamentally changed
"intraoperatively," App'x 238: he began the
operation planning to repair and replace the socket of the
implant, which he expected had worn down with Adams's
use, but the socket was in fine shape. He instead discovered
the implant hip itself was corroding into Adams's hip and
causing her harm. Before that revision surgery, Dr. Ververeli
expected Adams was adjusting poorly because "the
longevity of the plastic [was] wearing out" around the
plastic-lined socket; as to the implant and surrounding hip,
he expected "normal appearance." App'x 235. But
once he began operating, Dr. Ververeli realized Adams's
hip looked unlike the "many hip revisions [he had done]
in [his] career." App'x 235. He testified:
"[W]hen I opened up Marilyn's hip what became very
abundant in this reaction, it almost looked like debris where
her muscle should be as kind of replaced with this very
friable, very fragile membrane that had a vascularity to
it." App'x 235. Having seen the interior of
Adams's hip, he formed the opinion that her "adverse
local tissue reaction [was] secondary," i.e.,
not caused by her body's poor adjustment, but instead
"a reaction to the [Zimmer implant]." App'x
238. He agreed that the corrosion and fretting that make up
her injury were not, and could not, be "detect[ed] until
the time of the revision when the implant [was]
visible." App'x 241.
reasonable jury could accept Dr. Ververeli's conception
of the injury and cause changed during the revision surgery.
And if Dr. Ververeli did not realize a problem with the
implant was injuring Adams until the revision surgery, under
Pennsylvania law Adams too cannot be charged with that
constructive knowledge. Reasonable jurors could accordingly
find Adams, though she knew she had trouble ...