Cambridge Plating Co. v. Napco, Inc.

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 92-2242

CAMBRIDGE PLATING CO., INC.,

Plaintiff, Appellant,

v.

NAPCO, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Circuit Judge,

Coffin, Senior Circuit Judge,

and Boudin, Circuit Judge.

Thomas K. Christo with whom David B. Chaffin, Joseph M. Kaigler,

and Hare & Chaffin were on brief for appellant.

Richard L. Burpee with whom William A. McCormack was on brief for

appellee.

April 22, 1993

COFFIN, Senior Circuit Judge. Plaintiff Cambridge Plating

Company filed this lawsuit against defendant Napco seeking

damages for a defective wastewater treatment system. The

district court granted summary judgment for Napco, concluding as

a matter of law that the statutes of limitations had run on

plaintiff's claims. On appeal, Cambridge Plating argues that the

court should have let the jury decide whether Massachusetts's

"discovery" rule suspended the running of the limitations clock

long enough to preserve its claims. Because we agree with

plaintiff that material issues of fact remain, we reverse the

summary judgment.

I.

A. Factual Background

Cambridge Plating is an electroplating business that

discharges wastewater containing various metal contaminants into

municipal sewers. In an effort to meet strict environmental

regulations governing such discharges, the company commissioned

the design and installation of a wastewater treatment system from

defendant Napco. The contract price for the system was nearly

$400,000. Cambridge Plating additionally needed to make

substantial changes to its facility to accommodate the enormous

and complex array of pipes, tanks, valves, mixers, sensors,

recorders and other apparatus, pushing the total cost for the

project to $2.8 million.

The system began running on October 30, 1984, but it was not

then fully operational, and Napco continued installation and

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debugging for another year. In October 1985, Cambridge Plating

began to experience unsatisfactory results; testing revealed that

contaminant levels in the wastewater discharges sometimes

exceeded regulatory limits. Cambridge Plating's managers

believed the problems stemmed from errors by the system operators

or errors in wastewater sampling. This belief was fueled by

Napco representatives who, when contacted by Cambridge Plating on

a number of occasions between early 1986 and 1988, suggested ways

that Cambridge Plating could change its operation of the system.

Napco refused further visits to Cambridge Plating to service the

system unless it was paid $1,000 per day.

Cambridge Plating took several steps to resolve the

perceived operational or sampling problems. It replaced the

system operators and implemented the changes suggested by Napco.

In late 1986, the company asked a wastewater treatment expert,

Patrick Hunt, to evaluate the system and the company's operation

of it. Although Hunt found some minor problems with the system

itself, most of his recommendations were operational. Cambridge

Plating adopted his suggestions, but the company continued

periodicaly to exceed lawful contaminant levels.

On December 29, 1988, the Massachusetts Water Resources

Authority (MWRA), the agency responsible for effluent regulation,

assessed a penalty of $682,250 on Cambridge Plating for

violations during 1986-88. In February 1989, Cambridge Plating

commissioned another expert, Peter Moleux, to evaluate the

system. Moleux's lengthy inspection, which included a close

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comparison of Napco's written materials with the system as it

actually existed, revealed design flaws, failure to install parts

specified in the plans, and substandard engineering practices.

Most significantly, Moleux discovered that Napco had failed to

install an important component, a static mixer, inside a pipe

where system schematics provided by Napco indicated erroneously

the device had been placed. Omission of the static mixer

rendered the system incapable of adequately cleaning 80 percent

of the wastewater.

After Moleux's evaluation, Cambridge Plating installed a

static mixer at the point called for by Napco's plans. The

system thereafter worked properly, enabling Cambridge Plating

consistently to comply with the effluent limitations.

B. Procedural Background

Cambridge Plating filed this action in June 1990, alleging

causes of action for breach of contract, negligence, fraud,

negligent misrepresentation, and violation of the Massachusetts

unfair business practices act, Mass. Gen. Laws Ann. ch. 93A.

Napco moved for summary judgment, arguing that all of Cambridge

Plating's claims were barred by the applicable statutes of

limitation. The district court agreed with Napco.

The court concluded that Cambridge Plating's purchase of the

wastewater treatment system was a sale of goods, and that its

contract claim thus was governed by the four-year limitations

period under the Uniform Commercial Code, Mass. Gen. Laws Ann.

ch. 106, 2-725, rather than by the general six-year contractual

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limitations period, Mass. Gen. Laws Ann. ch. 260, 2. All of

Cambridge Plating's causes of action, therefore, were subject to

either three- or four-year statutes of limitation.1 These

claims were time-barred, the court determined, because they

accrued in late 1985, some four and one-half years before suit,

when the company learned that the system was failing to bring

effluent discharges within legal limits. The court rejected

plaintiff's argument that the limitations periods were tolled

until Moleux's evaluation, when Cambridge Plating first learned

the cause of the system's problems. The court concluded that,

with reasonable diligence, Cambridge Plating could have

discovered the defects once the system started malfunctioning.

On appeal, Cambridge Plating argues that the court

misconstrued the contract and the discovery rule, which serves to

toll certain hard-to-discern claims, and improperly usurped the

jury's role when it decided as a matter of law that the rule did

not preserve the company's claims. Our review of the district

court's grant of summary judgment is plenary, and we read the

record in the light most amicable to the party contesting summary

judgment. See, e.g., Pagano v. Frank, 983 F.2d 343, 347 (1st

Cir. 1993).

II.

1 Tort actions are subject to a three-year limitations
period, Mass. Gen. Laws Ann. ch. 260, 2A, and a four-year
statute applies to consumer protection actions brought under
Chapter 93A, Mass. Gen. Laws Ann. ch. 260, 5A.

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Cambridge Plating contends that the district court erred in

ruling as a matter of law that the contract with Napco was a sale

of goods contract within the scope of the UCC. Although

determining the type of contract at issue typically may be a jury

function, see United States v. City of Twin Falls, 806 F.2d 862,

870 (9th Cir. 1986), we believe the facts here are sufficiently

clear and undisputed that the district court was permitted to

make its finding as a matter of law. Id.

Cambridge Plating asserts that the UCC is inapplicable

because the equipment it purchased does not meet the Code's

definition of goods. Under the UCC, "goods" are defined as "all

things . . . which are movable at the time of identification to

the contract for sale . . . ." See Mass. Gen. Laws Ann. ch. 106,

2-105. The company emphasizes the immense size of the

wastewater treatment system and its integration into the

electroplating facility in an effort to equate this situation

with White v. Peabody Construction Co., 386 Mass. 121, 132, 434

N.E.2d 1015 (1982), where the court ruled that the UCC does not

apply to "the sale of structures attached to realty."

But this comparison is flawed. The claims in White were

based on contracts calling for "[t]he erection of buildings" and

for the sale of a completed building -- "not contracts for the

sale of bricks or window frames or caulking material." Id. at

131, 133. In this case, the proposal specified the components of

the system as the primary subject of the sale and, indeed,

specifically described the contract as one "for goods." See App.

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at 113. The proposal separately listed eighty-eight items to be

provided by Napco, eighty-two of which involved pieces of

equipment. At the time of identification to the contract, these

were movable and therefore goods within the scope of the UCC.

Accord Twin Falls, 806 F.2d at 871 (components of wastewater

treatment system are movable goods). It was only after

installation into plaintiff's building that the items became

merged with the facility and hence unmovable -- to borrow the

district court's analogy, like cans of paint sold as goods and

then applied to a wall.2

That the contract involved the purchase of engineering and

installation services, in addition to a sale of goods, is of no

consequence. In our view, Massachusetts law is consistent with

the general trend to view such mixed contracts as governed by the

UCC. See Twin Falls, 806 F.2d at 871. In White, 386 Mass. at

131-32, the Supreme Judicial Court ruled that "[c]ontracts whose

predominant factor, thrust, or purpose is the rendition of

services" are outside the scope of the UCC. It follows

inexorably that, if the "rendition of services" is not at the

heart of a mixed contract, the UCC does govern. See USM Corp. v.

2 Plaintiff also cites in support of its position Chestnut

Hill Dev. Corp. v. Otis Elevator Co., 653 F. Supp. 927, 932 (D.

Mass. 1987), which held that structures "attached to realty,"
such as the elevator system at issue there, are not "goods"
within the meaning of the UCC. Under the UCC, however, the
inquiry centers on the nature of the goods "at the time of
identification to the contract," Mass. Gen. Laws Ann. ch. 106,
2-105. It is beyond debate that the contract here listed movable
items. See Burnham v. Mark IV Homes, Inc., 387 Mass. 575, 581,

441 N.E.2d 1027 (1982) (modular homes are "goods" within coverage
of UCC).

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Arthur D. Little Systems, Inc., 28 Mass. App. 108, 119, 546

N.E.2d 888 (1989) (contract for computer system involving both

sale of goods and delivery of services governed by UCC).

The undisputed facts demonstrate that the deal between

Cambridge Plating and Napco was first, and foremost, a sale of

goods. Most of the purchase price was for the specifically

listed items of equipment. Only $68,970 of the total contract

price of $398,200 was for installation,3 and purchasing

installation from Napco was even optional. See generally

Chestnut Hill Dev. Corp. v. Otis Elevator Co., 653 F. Supp. 927,

932 (D. Mass. 1987) (a contract to supply "hundreds of

components" is not "one whose primary thrust is the rendition of

services"). Because the contract was so heavily weighted toward

goods, it must fall within the scope of the UCC.

The district court correctly applied the UCC to plaintiff's

contract claim. We thus move on to consider whether this and

Cambridge Plating's other claims were timely brought.

III.

Although the Massachusetts legislature has set statutory

limitations periods for various causes of action, see supra at 4-

5 & n.1, determining when claims accrue "`has long been the

product of judicial interpretation,'" Hoult v. Hoult, 792 F.

Supp. 143, 144 (D. Mass. 1992) (quoting Franklin v. Albert, 381

3 The cost of engineering services to assist Cambridge
Plating with preparing its local industrial discharge permit and
meeting with local officials -- a single item among a list of 83
-- also was included in the equipment subtotal.

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Mass. 611, 617, 411 N.E.2d 458 (1980)). Caselaw establishes that

the general rule for negligence claims is that the cause of

action accrues at the time of injury. Riley v. Presnell, 409

Mass. 239, 243, 565 N.E.2d 780 (1991). Similarly, a cause of

action for breach of contract usually accrues at the time of the

breach, International Mobiles Corp. v. Corroon & Black/Fairfield

& Ellis, Inc., 29 Mass. App. 215, 221, 560 N.E.2d 122 (1990), and

accrual of a chapter 93A claim typically occurs at the time

injury results from the assertedly unfair or deceptive acts. 29

Mass. App. at 220-21.

These designated times are subject to some flexibility,

however, because Massachusetts courts have recognized that it

would be unfair to begin running the statute of limitations

before a plaintiff is put on notice that she has a claim. See

Bowen v. Eli Lilly & Co., 408 Mass. 204, 205, 557 N.E.2d 739

(1990); Anthony's Pier Four, Inc. v. Crandall Dry Dock Engineers,

Inc., 396 Mass. 818, 824, 489 N.E.2d 172 (1986); Franklin, 381

Mass at 619. The judicially created tool for ensuring fairness

is the "discovery rule," which provides that, regardless of the

actual time of breach or injury, "a cause of action does not

accrue until a plaintiff discovers, or reasonably should have

discovered, that she may have been injured as a result of the

defendant's conduct." Hoult, 792 F. Supp. at 144. See also

Riley, 409 Mass. at 244; Bowen, 408 Mass. at 205-06; Hendrickson

v. Sears, 365 Mass. 83, 83-84, 310 N.E.2d 131 (1974). The

delayed knowledge may be either the fact of injury, such as when

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an item is not used and thus not discovered to be defective for a

substantial time after its purchase, see, e.g., Anthony's Pier

Four, Inc., 396 Mass. at 825-26,4 or the cause of the harm, such

as when an individual with a physical illness does not discover

the illness's link to particular medical treatment until years

after becoming sick, see, e.g., Bowen, 408 Mass. at 207.5

Not all contractual causes of action in Massachusetts are

governed by the judicially crafted accrual rules. Claims

alleging breach of a contract for the sale of goods instead are

subject to the detailed provisions of the UCC. Under 2-275(2),

a cause of action for breach of a sales contract generally

accrues when the breach occurs, "regardless of the aggrieved

party's lack of knowledge of the breach," and a breach of

warranty occurs when tender of delivery is made. Mass. Gen. Laws

Ann. ch. 106, 2-275(2). When a seller gives an explicit

warranty of future performance, however,

4 Anthony's Pier Four involved an action filed in 1980

against the designers of a ship mooring system that had been
completed in 1968. The plaintiff claimed that it was unaware of
the system's design deficiencies until it actually failed during
a storm in 1978. The court held that the lawsuit was timely
because "[t]he plaintiff discovered the breach when the boat
capsized in 1978 and there is no showing that it should have
known of the breach earlier." 396 Mass. at 826.

5 The plaintiff in Bowen had suffered a malignant vaginal

tumor requiring surgery in 1969 but did not file suit blaming the
cancer on a prescription drug manufactured by defendant Eli Lilly
& Co. until 1983. The court applied the discovery rule, but
nevertheless determined that the plaintiff was on notice that the
defendant may have caused her harm more than three years before
filing her action. 408 Mass. at 210.

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and discovery of the breach must await the time of such
performance the cause of action accrues when the breach
is or should have been discovered.

Id. Thus, like the tort and contract causes of action subject to

the judicial discovery rule, a cause of action for breach of a

warranty of future performance is tolled until the plaintiff has

adequate notice of the claim.

The district court found that the transaction at issue here

was a sale of goods, and that the UCC therefore governs the

contract claim. It further determined that Napco expressly had

warranted the future performance of the wastewater treatment

system, and that, consequently, the statutory discovery provision

applies. Because we have concluded that the district court

correctly ruled as a matter of law that the parties entered into

a sale of goods, and there is no challenge to its finding that

Napco gave an explicit warranty of future performance, the

timeliness of all of plaintiff's claims is linked to the

discovery rule.

IV.

Our analysis of the discovery rule's impact in this case

must begin with the parties' conflicting views on how the rule

operates. Defendant Napco asserts that the rule applies only to

"inherently unknowable" causes of action and that the question

before us is whether Cambridge Plating's claims were discoverable

through reasonably diligent efforts.6 If Cambridge Plating

6 Although the dictionary definition suggests that an
"inherently" unknowable claim is one that would be permanently

undiscoverable, see The Random House Dictionary of the English

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could have discovered its claims earlier through reasonable

diligence, Napco maintains, then they were not inherently

unknowable and the discovery rule would not apply.

Cambridge Plating counters that the applicability of the

discovery rule does not depend on whether it was possible for the

company to discover Napco's responsibility for the defects

earlier by pursuing some other reasonable course of action. The

inquiry, it asserts, must focus on the reasonableness of what the

company actually did. If the company acted diligently, but still

reasonably failed to learn of its cause of action, the discovery

rule would continue to delay the limitations clock.

The district court adopted Napco's view, finding that

Cambridge Plating could have discovered the system's defects once

the company learned that the water treatment equipment was

failing to bring effluent discharges within legal limits. The

court pointed to expert Moleux's affidavit as evidence that "the

defects were manifestly knowable to someone with an appropriately

trained eye," Opinion at 10 (emphasis in original). It did not

matter, the court ruled, whether Cambridge Plating had exercised

reasonable diligence in hiring the first expert, who did not

discover the defects: "[w]hether a defect is inherently

unknowable turns not upon an inquiry into whether the injured

Language (2d ed. 1987) at 982, the phrase has been used to

describe a cause of action that was incapable of detection for
some prolonged period of time even with the exercise of
reasonable diligence. See, e.g., Tagliente v. Himmer, 949 F.2d

1, 5 (1st Cir. 1991); White v. Peabody Construction Co., 386

Mass. 121, 129 (1982); International Mobiles Corp. v. Corroon &

Black/Fairfield & Ellis, Inc., 29 Mass. App. 215, 222 (1990).

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party did in fact exercise reasonable diligence, but instead upon

an inquiry into whether reasonable diligence could have led to

discovery of the defects," id. at 11 n.5 (emphasis in original).

This implies that at least two courses of action would meet a

standard of reasonable diligence -- one pursued by the injured

party and another that could have been pursued.

We are persuaded that Cambridge Plating's statement of the

discovery rule is the one consistent with prevailing

Massachusetts law. The rule is designed to protect plaintiffs,

to assure that "`a plaintiff [] be put on notice before his claim

is barred,'" Anthony's Pier Four, Inc., 396 Mass. at 824 (quoting

Franklin, 381 Mass. at 619). This protection would be frustrated

if a plaintiff who remained unaware of his claim even after

conducting reasonable inquiry was time-barred from pursuing it.

Fairness dictates that the discovery rule not be deemed

inapplicable simply because reasonable actions other than those

taken by the plaintiff could have uncovered the injury or cause

of harm. See generally Franklin, 381 Mass. at 618 (limitations

statutes are intended, inter alia, to "`stimulate [plaintiffs] to

activity'" and "punish[] negligent delay") (quoting Wood v.

Carpenter, 101 U.S. 135, 139 (1879)).

Indeed, the contrary conclusion would require something more

than reasonableness on the part of the plaintiff; Cambridge

Plating complains that nothing less than omniscience would do.

Whenever more than one reasonable option for pursuing a claim

existed -- when, for example, two or three qualified experts were

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available to investigate a non-performing piece of equipment --

the plaintiff would be penalized if the first expert chosen

reasonably failed to discover a problem the second expert managed

to detect. That the plaintiff had been diligent in hiring the

first expert would be irrelevant, even though the very point of

the rule was to protect plaintiffs whose reasonable efforts would

fail to put them on notice of their claims. This, certainly,

cannot be the intent of the Massachusetts courts.

The formulation that we believe reflects prevailing

Massachusetts law was particularly well articulated in Bowen, one

of the Supreme Judicial Court's more recent discovery rule cases:

This rule prescribes as crucial the date when a
plaintiff discovers, or any earlier date when she
should reasonably have discovered, that she has been
harmed or may have been harmed by the defendant's
conduct.
. . .
[T]he statute of limitations starts to run when an
event or events have occurred that were reasonably
likely to put the plaintiff on notice that someone may
have caused her injury.

408 Mass. at 205-206, 207. See also, e.g., Riley, 409 Mass. at

243; Franklin, 381 Mass. at 619. Bowen makes it clear that the

steps taken by a plaintiff to discover her cause of action play a

role in the decision whether to apply the discovery rule: "the

decision whether any [injury] should reasonably have been

uncovered ha[s] to be made in light of what reasonable inquiry

would have disclosed." Id. at 206 (citing Friedman, 371 Mass. at

485-86). Accrual of the plaintiff's cause of action is tested,

therefore, "by what a reasonable person in her position would

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have known or on inquiry would have discovered at the various

relevant times," Bowen, 408 Mass. at 210.

Thus, if Cambridge Plating acted reasonably diligently when

it hired the first expert, the fact that that expert failed to

discover the system's defects must be sufficient to toll the

statute of limitations.7 This is so because, if reasonable

inquiry failed to disclose the problem, it cannot be said that

the problem "should reasonably have been uncovered," Bowen, 408

Mass. at 206.8

We recognize that the district court's interpretation finds

literal support in the language of a number of cases, which

describe the discovery rule as applicable only to "inherently

unknowable" claims or refer to the time when a plaintiff "could"

have known of his claim. See, e.g., Melrose Hous. Auth. v. New

Hampshire Ins. Co., 402 Mass. 27, 34, 520 N.E.2d 493 (1988);

Anthony's Pier Four, Inc., 396 Mass. at 825-26 n.9; White, 386

Mass. at 129-30; International Mobiles Corp., 29 Mass. App. at

7 We presume here that the expert performed competently.
See infra p.17.

8 The district court's decision may reflect an implicit
finding that the first expert's efforts were inadequate. If
Moleux's exhaustive study of the system would have met but not
surpassed the threshold standard of reasonableness even if done
two years earlier, then Hunt's apparently less thorough review
would not have been sufficient inquiry under the discovery rule.
On the other hand, if Cambridge Plating exercised reasonable
diligence in hiring Hunt, and his performance was competent, then
Moleux's efforts beyond the reasonableness threshold should not
furnish a basis for denying discovery rule protection. On this
record, we do not think that the district court could determine
as a matter of law that the first evaluation was incompetent.
See Section V infra.

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222; Melrose Hous. Auth. v. New Hampshire Ins. Co., 24 Mass. App.

207, 212, 507 N.E.2d 787 (1987). But this support erodes on

analysis.

The two cases cited by the district court as precedent for

the standard it applied also refer to the "reasonably should have

known" formulation, see White, 386 Mass. at 129 & 130; Melrose

Hous. Auth., 24 Mass. App. at 212, as do other cases cited by

Napco, see, e.g., Anthony's Pier Four, Inc., 396 Mass. at 825-26

& n.9; International Mobiles, 29 Mass. App. at 218 & 222.

Moreover, none of these cases involved a plaintiff in the

position Cambridge Plating claims to be in here, i.e., one who

acted diligently, yet still failed to learn of a cause of action.

These cases, instead, uniformly involve plaintiffs who were

not diligent, and that circumstance, we believe, has led the

courts to describe the rule imprecisely. When a plaintiff has

made no reasonable efforts to discover the harm or its cause,

considering whether a plaintiff reasonably should have discovered

his claim will produce the same result as considering whether he

reasonably could have discovered it. For example, if a court

found that a claim could not be discovered through reasonable

diligence, it would be precluding as well a finding that he

reasonably should have discovered it. See, e.g., White, 386

Mass. at 130 (in cases cited, "the nature of the defendant's

wrong was such that the plaintiff did not discover and could not

reasonably have discovered that he or she had been injured until

[a later time]").

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Similarly, a court might find that, if the plaintiff had

been diligent, she could have discovered her claim. From this

conclusion, lacking contrary information, it also is logical to

presume that the plaintiff should have discovered her claim.

Having failed to act, the plaintiff has no basis for disputing

the court's sensible presumption that reasonable actions would

have produced results. See, e.g., Friedman v. Jablonski, 371

Mass. 482, 486, 358 N.E.2d 994 (1976); Melrose, 24 Mass. App. at

212-215; Graveline v. BayBank Valley Trust Co., 19 Mass. App.

253, 254-55, 473 N.E.2d 700 (1985). "Could" and "should"

effectively are interchangeable in this context, and the courts'

particular usage is of no significance.

Only when a plaintiff has done what he is supposed to do,

and still comes up empty, is a court faced with a possible

disjunction between what he theoretically could have known if he

had chosen a different reasonable path, and what he should have

known based on the reasonable inquiry he did make. Because none

of the cases cited to us present that situation, and because

construing the rule as the district court applied it effectively

would take away the protection the discovery rule is designed to

provide, we are confident that Cambridge Plating's view of the

discovery rule is correct.

We think it worth emphasizing that, so construed, the rule

does not permit a plaintiff to buy time by engaging an

incompetent "expert." Hiring an individual who is poorly suited

to investigate the type of injury suffered by the plaintiff is

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unlikely to be deemed "reasonable" inquiry sufficient to suspend

the limitations period. Moreover, even if the plaintiff

reasonably hires a professional he believes to be competent, but

who fails to discover a defect that a qualified expert easily

should have found, the plaintiff's only recourse is likely to be

against the deficient professional. The discovery rule would not

save the overlooked claim because reasonable inquiry should have

put the plaintiff on notice of it. See Friedman, 371 Mass. at

486 & n.4 (a competent lawyer would have done title search and

should have discovered defect).

The discovery rule's protection is limited in another way as

well. The rule does not suspend the running of the limitations

period pending confirmation of the plaintiff's injury or its

cause, but simply stops the clock until the occurrence of "an

event or events . . . that were reasonably likely to put the

plaintiff on notice that someone may have caused her injury,"

Bowen, 408 Mass. at 207 (emphasis added). Thus, a plaintiff who

in the 1970s was told that her injury may have been caused by her

mother's ingestion of DES was unable to invoke the discovery rule

to save the lawsuit she filed a decade later, when she felt more

certain of the causal connection. See id. at 209-10.

Applying these principles to the case at hand, Cambridge

Plating's ability to invoke the discovery rule -- and thus the

timeliness of its claims -- turns on when the company should have

known that Napco might be responsible for the water treatment

system's failing performance. In Section V, we discuss our

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conclusion that this question must be answered by the trier of

fact. See Riley, 409 Mass. at 247-48 (jury should decide

disputed issues relating to statute of limitations).

V.

To survive Napco's motion for summary judgment based on the

statute of limitations, Cambridge Plating must show a genuine

issue of material fact as to whether it knew or should have known

of its claims before June 22, 1987.9 See Fidler v. Eastman

Kodak Co., 714 F.2d 192, 197-98 (1st Cir. 1983); Hoult, 792 F.

Supp. at 145; Riley, 409 Mass. at 244, 247. No one suggests that

Cambridge Plating in fact knew the source of the system's

problems before early 1989, and the issue therefore is whether

there is a factual dispute over whether the company should have

realized Napco's possible responsibility before that date.

A careful analysis of the record persuades us that such a

dispute exists. In finding that Cambridge Plating was on notice

of its claims in late 1985, the district court relied heavily on

the company's having learned at that time that the system was

failing to bring effluent discharges down to acceptable levels.

The court felt that Cambridge Plating's knowledge of the

deficiencies meant that it knew that the performance warranty was

being breached. Additionally, consistent with its understanding

9 The lawsuit was filed on June 22, 1990. As discussed in
Section III, supra, certain of the claims have four-year, rather

than three-year, statutes of limitation, and those claims would
be timely even if Cambridge Plating learned of them a year
earlier, in 1986. For the sake of simplicity, because it makes
no difference in the result, we discuss the claims as if all
needed to be filed within three years of their discovery.

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of the discovery rule, see Section IV supra, the court ruled that

Cambridge Plating was then on notice of the other claims as well.

The system's inadequate performance in late 1985 strikes us

as far less portentous. Beyond doubt, when the system first was

installed, and throughout Napco's debugging process, Cambridge

Plating had no reason to suspect the serious flaws. Omission of

the static mixer was virtually impossible for anyone but a

wastewater treatment expert to discover, both because the device

was supposed to be located inside a pipe and because Napco's

diagrams indicated that it had been installed. Moreover, any

deficiencies presumably were to be resolved once Napco finished

its finetuning.

When the problems persisted despite Napco's announcement

that debugging was complete, two explanations theoretically were

available. Either the system itself was defective, or it was

being operated improperly. At this point, however, the two

possibilities were not equally weighted. Cambridge Plating knew

that the system was technically complex and required sensitive

operation. And Napco's only response to Cambridge Plating's

inquiries was to suggest ways to improve operation.

In these circumstances, we do not believe Massachusetts law

requires a finding that Cambridge Plating was on notice of the

system's defects. A plaintiff is sufficiently aware of her cause

of action, and thus should have discovered it, once she has

received "notice of likely cause," Fidler, 714 F.2d at 199

(quoted in Bowen, 408 Mass. at 207-08). Accordingly, as we

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understand the requisite notice, the statute of limitations will

begin to run once the plaintiff has enough information to target

the defendant as a suspect, though not necessarily to identify

the defendant as the culprit. See Bowen, 408 Mass. at 207-08.

We think it within a factfinder's province to conclude that, in

late 1985, Cambridge Plating had no basis for suspecting Napco's

workmanship and reasonably attributed the system's problems

solely to its own deficient operation. If so, the statute of

limitations would not yet have begun to run.10

Cambridge Plating hired new operators, but the problems

persisted. So, in late 1986, the company engaged its first

expert evaluation of the system. This, too, resulted in only

operational suggestions. Should this expert have discovered the

defects? Again, we believe this is a question properly answered

by the trier of fact. The record contains little information

about the first expert, describing him only as an assistant

instructor for a wastewater treatment course at a community

college who "worked on waste treatment for Hewlett Packard." See

Affidavit of Edward Marullo, at 2. Was he competent to evaluate

the system? Would even a well qualified expert necessarily have

uncovered the problem based on what he knew about the system at

10 The facts here contrast with those in White v. Peabody

Construction Co., 386 Mass. 121 (1982), where plaintiffs sought

to recover damages resulting from widespread window and roof
leaks allegedly caused by defendants' improper design and
construction of a housing project. The court rejected
application of the discovery rule there because the plaintiffs
"reasonably should have known that widespread water leaks in a
newly constructed building are almost certainly the result of
design or construction defects." Id. at 130.

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that point? Was it reasonable to rely on the schematics provided

by Napco showing that a static mixer had been installed? Perhaps

the second expert discovered the defects only because, in light

of the earlier expert's reasonable work, a more exhaustive study

now appeared necessary.11

Because the record leaves these subsidiary issues

unresolved, factual questions remain as to whether Cambridge

Plating should have known even by the end of 1986 of Napco's

possible responsibility for the system's failings. If the

expert's failure to discover the defects was reasonable, a jury

could find that Cambridge Plating continued to deserve protection

from the discovery rule beyond that time.12

Whether the rule's impact, assuming it reached this far,

continued on through the time of actual discovery is also a

matter for jury deliberation. Was it reasonable for the company

to wait another two years before seeking additional advice? Was

there a point in time after Cambridge Plating had complied with

all of the first expert's suggestions, still without any change

in the system's performance, that the company reasonably should

have realized that Napco's work may have been to blame?

11 An affidavit from the second expert, Peter Moleux, states
that, in his opinion, "the defects in the system could have been
discovered only by someone with expertise and training in the
field similar to mine and only after a lengthy and thorough
inspection and analysis." See App. at 179 33. Moleux reported

that he spent "many days" identifying the system's problems.

12 Of course, claims subject to four-year limitations
periods would be timely even if the discovery rule only tolled
the running of the clock through the end of 1986.

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In short, many questions remain. To determine when

Cambridge Plating "reasonably should have discovered" that it

might have claims against Napco requires a review of specific

circumstances about which the record presently contains sketchy

information. Consequently, the district court's grant of summary

judgment must be set aside.13

Reversed and remanded. No costs.

13 We are unpersuaded by Cambridge Plating's alternative
theories that the statutes were tolled because (1) Napco
concealed omission of the static mixer and (2) Napco had a
fiduciary duty to disclose the omission but failed to do so. See

generally White v. Peabody Construction Co., Inc., 386 Mass. 121,

133-34 (1982).

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