Notwithstanding the provisions of 214, the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within the property must be commenced shall be computed from the date of the discovery of the injury by the plaintiff or from the date when a through the exercise of reasonable diligence, such injury should have been discovered by the plaintiff, whichever is earlier.N.Y. Civ. Prac. L. & R. ]§ 214-c (McKinney 1990).
In DiMarco v. Hudson Valley Blood Serv's the Appellate Division interpreted N.Y. Civ. Prac. L. & R.§ 214-c(2) to include "contaminated blood" as a "substance" within the meaning of the statute. 147 A.D.2d 156 (N.Y. App. Div. 1989). The court determined the beginning of the limitations period to be the date that the plaintiff discovered he had been infected with Acquired Immune Deficiency Syndrome (AIDS), and reinstated the plaintiff's cause of action. Id. at 162.
Subsequently, the Court of Appeals in Jensen v. General Elec. Co., a case involving compensatory relief due to hazardous waste contamination to the plaintiff's property, held that the language of N.Y. Civ. Prac. L. & R. § 214-c(2) required that a plaintiff seek relief within three years of discovery of the "injury." The court rejected the plaintiff's contention that the statute coexisted with the common law rule of continuous injury to allow for claims to be filed beyond the three year period so long as the injury was continuing. Id. at 87. The court reasoned that "determining when limitations begin to run requires a balancing of policy considerations . . . . On one side of the scale are the interests of the injured parties . . . conversely the defendants are entitled to a fair opportunity to defend claims against them before their opportunity to do so has deteriorated . . . ." Id. (citing Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 435 (N.Y. 1992)).
The court described the legislative intent of the enactment of N.Y. Civ. Prac. L. & R. § 214-c(2) as remedying:
a fundamental injustice in the laws of our State which has deprived persons suffering from exposure to toxic or harmful substances from having opportunity to present their case in court . . [N.Y. Civ. Prac. L. & R.§ 214-c(2)] repeals th[e] archaic rule [that commenced the limitations period on the date the exposure occurred] and replaces it with a fair and simple rule which permits a person to discover his or her injuries before the statutory time period for suit begins to run.Id. at 84.
The court stated that the statute provides enhanced protections for plaintiffs by allowing them, if they act within the three year period, to recover for all injuries regardless of the lapse of the time between exposure and discovery. Id. at 88. The court rejected any exception to the coverage of N.Y. Civ. Prac. L. & R.§ 214-c(2) for claims based in common law and stated that "there would be no Statute of Limitations, and never any repose even against parties who choose to sit interminably on known rights before bringing suit. The Legislature could not have intended or effected such a substantial, self-defeating and self-contradictory exercise that functionally excises the three year period." Id. at 89.
The Appellate Division in Scherrer v. Time Equities, Inc., 218 A.D.2d 116 (N.Y. App. Div. 1st Dept. 1995) and the Federal District Court for the Eastern District of New York in Braune v. Abbott Lab., 895 F. Supp. 530 (E.D.N.Y. 1995) both interpreted N.Y. Civ. Prac. L. & R.§ 214-c(2) to allow a plaintiff to consider the statue of limitations period to begin when the plaintiff knew that the injury resulted from exposure to a foreign substance. In Scherrer, the court held that there remained triable issues of fact as to when the plaintiffs' discovered or in the exercise of reasonable diligence should have discovered latent injuries. Scherrer, 218 A.D.2d at 124. This holding denied defendants summary judgment and required a trial to determine whether N.Y. Civ. Prac. L. & R. § 214-c(2) would toll the statue of limitations to allow the plaintiffs recovery. Id. Similarly in Braune, the federal district court, applying New York law, interpreted N.Y. Civ. Prac. L. & R. § 214-c(2) broadly. The court held that in the context of a products liability action based on the exposure to DES, the statute of limitations does not begin to run until the plaintiff discovers the injury. Braune, 895 F. Supp at 543. The discovery of the "injury" is not only an awareness of a medical problem but also requires that the connection be made that the difficulty resulted from some toxic exposure and not merely natural causes. Id.
Plaintiff argued that for purposes of the statute "discovery of the injury" means not merely the discovery of the symptoms, but also the discovery that those symptoms stem from exposure to a hazardous substance. Plaintiff wanted to draw a distinction between situations "in which only the precise toxic substance that caused the injury is unknown" and those in which the injured party is not even aware that the injury stems from a non-biological cause. If the court allowed the latter construction, Plaintiff's action would not be time barred since it would fall within the three-year period allowed by N.Y. Civ. Prac. L. & R.§ 214-c(2).
The majority finds that the Legislature enacted N.Y. Civ. Prac. L. & R. § 214-c to nullify the effect of a line of cases holding that the limitations period in toxic tort cases begins to run upon exposure to the harmful substance whether or not any symptoms had manifested. The majority holds that the Legislature intended to distinguish between exposure to a toxic substance and the manifestation of the injuries caused by that exposure. Since N.Y. Civ. Prac. L. & R. § 214-c(4) provides for the situation in which the cause of the injury is undiscoverable because of lack of technology, the majority reasons that if the underlying cause is medically or scientifically discoverable, N.Y. Civ. Prac. L. & R. § 214-c(2) applies, and the limitation period starts running upon discovery of the injury. The majority declines to accept Plaintiff's argument and finds that under that interpretation when the limitation period begins to accrue would depend on "fortuitous circumstances" like the plaintiff's medical knowledge and his or her physician's ability to diagnose the problem.
This decision establishes that a plaintiff has only three years from the discovery of an injury caused by a toxic substance to commence an action, regardless of whether the plaintiff is aware of the connection between the injury and the toxic cause. The dissent notes that this decision draws the focus away from the reasonableness and diligence of the plaintiff's search for the cause of his or her injury. The sole factor in determining the time from which the limitations period begins is the time of discovery of physical symptoms of injury.
If medical science has discovered a connection between a particular substance and a type of injury, then for purposes of N.Y. Civ. Prac. L. & R. § 214-c the limitations period begins to run upon discovery of any physical symptoms possibly caused by that substance. No matter how diligently they search for the underlying cause, injured persons still have only three years from the discovery of their symptoms to commence an action.
The second issue addresses an ambiguity of N.Y. Civ. Prac. L. & R. § 214-c(4). When has the "toxic etiology" of a given condition or class of conditions become "discovered" for the purposes of § ; 214-c(4), thus extending the time in which a plaintiff may bring an action against the manufacturer? The court suggests that there is an objective standard for when such knowledge is to be imputed to an injured party but fails to articulate any such standard. The court's reliance on the "technical knowledge of the medical and scientific community" does nothing to answer this issue, since medical and scientific progress proceeds erratically, and new "discoveries" are frequently discarded or revised.
The Federal District Court for the Southern District of West Virginia, applying West Virginia state law, time-barred a plaintiff's products liability claim when it determined that the plaintiff had actual notice of the connection between her symptoms and the drug L-tryptophan when she viewed a NBC Nightly News television report covering an investigation by federal health officials and warning viewers not to use the drug. Sayre v. General Nutrition Corp., 867 F. Supp. 431 (S.D.W. Va. 1994).
In contrast, the Court of Appeals for the state of Ohio refused to grant a summary judgment motion to the defendant, instead holding that the statute of limitations on the plaintiff's products liability cause of action did not begin to run until his doctor had made a firm diagnosis connecting the injury to the defendant's conduct. Venham v. Astrolite Alloys, 596 N.E.2d 585 (Ohio App. 1991). The fact that the plaintiff had been experiencing the symptoms for several years and had read magazine articles informing him of the connection was not enough to keep the plaintiff's cause of action from going to trial. Id.