UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-20901
Summary Calendar
RUSSELL PAVICH, M.D. AND WIFE, MYRA D. PAVICH
Plaintiffs-Appellants,
VERSUS
ZIMMER, INC. D/B/A/ ORTHOPEDIC DEVICES, INC.,
Defendant-Appellee
Appeal from the United States District Court
For the Southern District of Texas
(H-96-CV-2317)
August 27, 1998
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges
PER CURIAM:1
Russell Pavich, M.D., and his wife Myra (“the Paviches”) sued
Zimmer, Inc., d/b/a Orthopedic Devices, Inc. (“Zimmer”) in state
court asserting products liability and negligence claims, as well
as violations of the Uniform Commercial Code. Dr. Pavich claimed
Harrington rods implanted in his spine following an automobile
accident broke and injured him. Zimmer removed the case on the
basis of diversity jurisdiction and then moved for summary
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
judgment. The district court granted summary judgment, concluding
that the Paviches’ cause of action was barred by limitations. We
agree.
BACKGROUND
In 1981 Dr. Pavich was rendered a paraplegic in an automobile
accident. He sought treatment from Dr. Jesse Dickson (“Dickson”)
at Methodist Hospital in Houston, Texas. As part of the surgery
necessitated by the accident, Dr. Dickson implanted Harrington
rods2 in Dr. Pavich’s spine to provide increased support.
In early 1994, Dr. Pavich began experiencing increased pain
and hearing a popping sound as he moved his back. He underwent an
intravenous pyelogram (IVP) May 9, 1994. Dr. Pavich took the IVP
film to Dr. R. E. Carter at The Institute for Rehabilitation and
Research (TIRR) in Houston for review May 12, 1994. Dr. Carter’s
clinical notes on that date reveal that he found “some evidence of
probable breaking of the Harrington rods.” He recommended that Dr.
Pavich consult Dr. Dickson, his original surgeon, to “see if there
is any need to do anything with regards to the broken Harrington
rod.” Dr. Pavich saw Dr. Dickson May 31, 1994. X-rays taken on
that date confirmed that the rods were broken. Dr. Dickson
concluded that it was probable the broken rods were causing Dr.
Pavich’s increased pain.
The Paviches filed suit May 31, 1996, against Zimmer in Texas
2
“Harrington rods” is a generic name for a device invented by
Dr. Paul R. Harrington. At the time of Dr. Pavich’s surgery, some
six manufacturers, including Zimmer, Inc., produced these
orthopedic devices.
2
state court, alleging causes of action based on products liability,
negligence, and violations of the Uniform Commercial Code. After
removing the case, Zimmer moved for summary judgment on two grounds
- that the suit was barred by limitations and that the Paviches had
failed to present admissible evidence that created a fact issue as
to whether Zimmer had manufactured or supplied the Harrington rods
used in Dr. Pavich’s spine. The Paviches argued that the discovery
rule should be applied to overcome the limitations bar. They
supported their allegation that Zimmer was the manufacturer of the
rod by an affidavit from Dr. Pavich. The district court found that
there was genuine issue of material fact as to the manufacturer or
supplier of the rod. It ruled, however, that although the
discovery rule applied, the statute of limitations barred the
Paviches’ suit. The Paviches now appeal.
II.
We review the district court’s grant of summary judgment on
the basis of limitations de novo. Rotella v. Pederson, 1998 WL
340393 *2 (5th Cir. (Tex)).
III.
A.
We first examine the Paviches’ Uniform Commercial Code
violation claim. Although the nature of this claim was not
precisely specified, we agree with the district court that the
Paviches appear to complain of a breach of warranty. Actions for
breach of warranty must be brought within four years of accrual.
Tex. Bus. & Comm. Code § 2.725(a)(Vernon 1994). Subsection (b)
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provides that a cause of action accrues when the breach occurs and
that the breach occurs when tender or delivery is made. It further
delineates an exception that was not alleged here. Because the
traditional discovery rule applies only to statutes that fail to
define when a cause of action accrues, (See Moreno v. Sterling
Drug, Inc. 787 S.W. 2d 348, 353 (Tex. 1990)), the Paviches can find
no relief under this exception to limitations. Their cause of
action accrued upon delivery of the Harrington rods in 1981 and
expired four years later.
We now turn to the remainder of the limitations defense.
Under Texas law a suit for personal injury must be brought “not
later than two years after the cause of action accrues.” Tex. Civ.
Prac. & Rem. Code § 16.003(a). For purposes of the application of
limitation statutes, a cause of action generally accrues when the
wrongful act causes an injury, regardless when the plaintiff learns
of the injury. Moreno, 787 S.W. 2d at 351.
The discovery rule is a very limited exception to statutes of
limitations. Computer Assoc. Int’l., Inc. v. Altai, Inc., 918 S.W.
453, 455 (Tex. 1996). When applied, it defers the accrual of a
cause of action. S.V. v. R.V., 933 S.W. 1, 4 (Tex. 1996). The
rule is a judicially constructed test used to determine when a
plaintiff’s cause of action accrued. Weaver v. Witt, 561 S.W. 792,
794 (Tex. 1977). Under the discovery rule such an action accrues,
not when the injury becomes certain, but when the claimant should
know of his injury. Murphy v. Campbell, 964 S.W. 2d 265 (Tex.
1997). Texas courts further describe this knowledge as when the
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plaintiff knows or, exercising reasonable diligence, should have
known of the facts giving rise to the cause of action. Computer
Assoc. Int’l., Inc., 918 S.W. 2d at 455. When a cause of action
accrues for limitations purposes is a question of law for the
court. Id.
The discovery rule exception applies in cases where “the
nature of the injury incurred is inherently undiscoverable and the
evidence of injury is objectively verifiable.” Murphy, 964 S.W. 2d
at 270. Texas courts explain the “inherently undiscoverable”
requirement as not needing to be absolutely impossible to discover,
but of such a nature that it is unlikely to be discovered within
the prescribed limitations period despite due diligence. S.V., 933
S.W. 2d at 7. It is clear that this requirement permits the
discovery rule exception only where it is difficult for the injured
party to learn of the negligent act or omission. Computer Assocs.
Int’l., Inc., 918 S.W. 2d at 455. The second requirement, that an
injury be “objectively verifiable,” means that the presence of the
injury and the producing wrongful act cannot be disputed. See
S.V., 933 S.W. 2d at 7 (explaining cases where the court considered
“objectively verifiable”).
We agree that the discovery rule exception is properly applied
to the case before us. The nature of Dr. Pavich’s injury is
inherently undiscoverable. There was no sudden trauma that caused
the onset of his increased pain. The broken rods were not visible
to the naked eye, nor were the breaks readily discernable through
palpation. Dr. Pavich was not able to discover that the rods were
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defective until his pain began. His injury is also objectively
identifiable; x-rays clearly showed the breaks in the rods.
To determine when the two-year limitations period began to
run, we now look to when Dr. Pavich acquired knowledge of facts
which, in the exercise of reasonable diligence, would lead to the
discovery of his injury. Moreno, 787 S.W. 2d 348, 351 (Tex.
1990). Although he began to experience increased pain in early
1994, we find that it was not until his TIRR consultation May 12,
1994, that he acquired the knowledge he needed to discover he had
a cause of action. On that date Dr. Carter reviewed the IVP
results. He attributed Dr. Pavich’s pain to probable breaks in the
Harrington rods. He recommended a consultation and an X-ray to
verify the breaks. We find that, from the date of Dr. Carter’s IVP
evaluation, Dr. Pavich acquired knowledge that would lead to the
discovery of his injury. Unfortunately, the Paviches did not file
suit until May 31, 1996, two years and 19 days after their cause of
action accrued.
Accordingly, we find that the Paviches’ suit against Zimmer is
barred by the two year statute of limitations as applied under the
discovery rule. We, thus, have no need to consider Zimmer’s second
summary judgment argument.
AFFIRMED.
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