concurring in part and dissenting in part:
While I agree with the majority’s conclusion that the plaintiff failed to prove fraudulent concealment, I disagree that the trial court’s decision dismissing the complaint as time barred and preempted must be reversed.
The majority holds that the plaintiff was denied due process because the trial court dismissed the plaintiffs complaint without also determining whether the discovery rule tolled the statute of limitations in this case.
Initially, I disagree with the majority that the plaintiff raised the discovery rule issue. The majority cites a paragraph in the plaintiffs third amended complaint which refers to the discovery rule. However, in that paragraph, the plaintiff alleged fraudulent concealment on the part of the defendants, and not that he could not have otherwise discovered his injury. Therefore, the application of the discovery rule was not before the trial court.
Next, as the majority observed above, the discovery rule begins to run when the party “knows” or “reasonably should know” that he has been injured and that his injury was wrongfully caused. The plaintiff in this case maintained that he did not actually know that he might have a cause of action until 1986.
However, in its memorandum opinion, the circuit court stated as follows:
“Certainly no later than the end of 1982 any responsible health care provider should have known about the problems with the Fhenergan Expectorants. And by the end of that year, merely by asking a physician or pharmacist or going to the local library, an interested consumer could have been appraised [sic].”
In light of the circuit court’s conclusion that the plaintiff could have discovered his injury and that it was wrongfully caused as early as the end of 1982, applying the discovery rule would only have extended the statute of limitations to 1986, rendering the plaintiffs 1987 suit time barred.
The majority does not hold that the circuit court’s determination that the plaintiff could have reasonably known about his injury in 1982 was error. Instead, the majority concludes that due process was violated when the plaintiff was not given an opportunity to be heard on the issue of the discovery rule.
In the present case, both parties were present at the trial and presented evidence on whether his complaint was time barred. The plaintiff does not argue that he was denied the opportunity to present evidence on the discovery rule issue, only that the trial court’s conclusions were erroneous.
The trial court’s exhaustive findings and extensive 112-page ruling in this case disposed of the discovery rule issue as well as the fraudulent concealment issue, based upon the evidence submitted at a 41/2-month trial. It was not necessary for the trial court to specifically rule on the discovery rule, since its finding that, as of 1982, the plaintiff could have discovered his injury and its wrongful cause effectively rendered that issue meritless.
Finally, in the absence of any argument by the plaintiff that he was denied the opportunity to present evidence on the issue of the discovery rule, there is no basis for the majority’s sua sponte determination that the plaintiff was denied due process.
The trial court’s finding that the complaint was time barred ended the case.
I therefore respectfully concur in part and dissent in part.