Burd v. New Jersey Telephone Company

Pashman, J.,

dissenting. The sole issue presented by this appeal concerns the proper application of the “discovery” rule to the facts of this case. In Lopez v. Swyer, 62 N. J. 267 (1973), we described the effect of that rule:

* * * a cause of action will be beld not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.
[62 N. J. at 272]

Although I agree with the majority that the discovery rule is available to a plaintiff in a products liability action, I must dissent from its conclusion as to the date plaintiff’s cause of action accrued for purposes of the statute of limitations.

The majority’s opinion would be a correct statement of the law if plaintiff was seeking damages for the dizziness caused by the inhalation of the solvent glue fumes, as plaintiff is undeniably chargeable with knowledge that he experienced dizziness and light-lieadedness as a regular concomitant of his exposure to those fumes. However, the basis of plaintiff’s suit is that the glue was the causative agent not of his dizziness but of the heart attacks he suffered on September 7 and *295October 13, 1971. The record reveals that plaintiff did not actually learn of the possible causal relationship between the glue and his two heart attacks until early October 1973, when he was so informed by his attorney, who had received a report to that effect from a medical expert. We are thus called upon to determine whether plaintiff is fairly chargeable with the constructive knowledge of that material fact, the final ingredient necessary to provide the “basis for an actionable claim,” at some earlier point in time which would bar his suit, instituted in May 1974, as untimely.

There is no question as to plaintiff’s eqqitable entitlement to the benefit of the discovery rule. Lopez v. Swyer, supra, 63 N. J. at 275-276. The only issue is pinpointing the time of discovery within the meaning of the rule in order to ascertain whether suit was instituted within two years thereafter. This case falls into the same category as Lopez, where the “damage may be all too apparent, but the injured party may not know that it is attributable to the fault or neglect of another.” 62 N. J. at 274. The majority affirms the result reached by the Appellate Division but does so on a different basis, without approving the troublesome implications of the opinion below. Two alternative rationales are offered for the result reached. In one view, a statement by the trial.judge that the plaintiff knew that the glue “played some part in whatever occurred to him” is taken as a finding of fact that plaintiff had actual knowledge, “at least shortly after the heart attack,” of the causal connection between the glue fumes and his misfortune. Record support for this finding is found in plaintiff’s awareness of the correlation between the use of the glue and the incidence of dizziness and lightheadedness and in the disappearance of these “symptoms” within a short time after plaintiff stopped working with the glue each day. /These facts are said to provide a basis for the ultimate inference that “plaintiff realized the connection between the glue and the symptoms.” See ante at 393. Alternatively, if the judge’s statement did not constitute a finding of actual knowledge, the majority finds in his words a *296valid basis for the legal conclusion that constructive knowledge of the causal relationship is properly imputable to plaintiff. I believe the majority grievously errs in adopting either theory.

The circumstances of this case must be recounted in order to understand the extent to which the majority’s position is inconsistent with common sense and simple justice. Plaintiff is an unskilled laborer with an eighth-grade education. He was 51 years old at the time of his injury and had performed physical labor for his entire working life. Prior to his heart attacks, plaintiff was suffering from arteriosclerosis, pulmonary fibrosis and chronic lung diseases and was a heavy smoker. His medical expert testified that plaintiff might very well have had the heart attacks even in the absence of any exposure to the fumes. He also testified that it was more likely for someone of plaintiff’s age with arteriosclerosis who had been performing physical labor on a hot day to experience dizziness than a worker without arteriosclerosis. Plaintiff had been working for several hours outdoors in a confined space unprotected from the bright sun on a hot humid day in late summer. He had been using the glue on the two previous days at the same job and had used it on two prior jobs without incident. He knew that inhaling the glue’s fumes “wasn’t too good” for him and affected his mood as well as making him dizzy and light-headed after constant exposure. He read the label on the glue’s container and noted the absence of any warning concerning the hazard of inhalation. He believed, not unreasonably, that working with the glue outdoors in fresh air would eliminate any potential danger. Plaintiff suffered a second heart attack more than a month later without any further exposure to the glue.

Erom this plethora of potential precipitating factors, the majority concludes that the plaintiff should have been able to’ deduce that his heart attacks were the result of his inhalation of the glue’s fumes. He is charged not only with that knowledge but also with the ability to disregard, as medically irrelevant, any other possible causes of his *297affliction, such as overexertion, aggravation of a preexisting condition, age or other natural causes. Plaintiff is expected to possess sufficient expertise to know that his heart attacks were medically attributable to his exposure to the glue fumes on pain of being denied his day in court if he is in fact ignorant. The repugnance of this position to the equitable spirit of Lopez v. Swyer is obvious.

Plaintiff was only aware of the coincidence between his use of the glue and his experience of dizziness and lightheadedness. While these conditions are in many cases precursors of an imminent heart attack, the correlation is not so strong that dizziness and light-headedness can be said to be heart attack “symptoms” or to point inevitably to an eventual heart attack from continued exposure to the substance which causes the dizziness and light-headedness. The majority makes an intuitive leap from an actual awareness that dizziness is attributable to the glue fumes to an imputed awareness that myocardial infarctions are similarly attributable. However medically accurate this conclusion might be, to presume that this unsophisticated layman is capable of making a self-diagnosis of the effect of the glue on his cardiovascular system, a diagnosis whose complexity is demonstrated by the dispute over causation between the medical experts at trial, is plainly inconsistent with reality.

Simply stated, from the plaintiff’s point of view, the fact that the glue might be capable of inducing dizziness does not establish that it is capable of causing a heart attack. Any suspicions the plaintiff might have had on the latter score were no doubt dissipated when he had his second heart attack a month later, after having had no further exposure to the glue. Certainly to a layman that occurrence could be reasonably understood to negate any possibility that the first heart attack was externally caused. In view of the multiplicity of possible causes for his first heart attack and the apparent non-involvement of the glue in his second, I cannot say that it was unreasonable for this plaintiff to fail to perceive the prominence of the glue as *298the likely cause of his injury. Plaintiff is not an occupational disease specialist and cannot fairly be treated by this Court as if he were. Only if he was such an expert could he have discovered that he “may have” had a cause of action attributable to the glue. The evidence in this case supports neither a finding of actual knowledge nor a conclusion of constructive knowledge with respect to the causation of plaintiff’s injuries.

Although its holding is confined to the peculiar facts of this particular case, the majority’s position does violence to the equitable underpinnings of the discovery rule. Constructive discovery may be found only where the injured person is able to learn of his potential cause of action through the exercise of “reasonable diligence and intelligence.” To be consistent with the remedial purposes of the discovery rule, reasonableness in this regard must be more a subjective than an objective standard. Although I do not believe the result reached by the majority would be sustainable even if plaintiff was a college-educated professional, it is totally untenable with respect to a person with an eighth-grade education. How can such a plaintiff be capable of making a medically competent judgment as to the cause of the plight which had befallen him? The harshness of the result in such circumstances is contrary to this Court’s traditional sensitivity to the concerns of equity and justice in applying the discovery rule.

I am further alarmed by the majority’s sub silentio implication that persons in plaintiff’s situation are under some sort of duty to consult promptly with a medical expert in order to verify the factual basis of a potential lawsuit whenever they have the slightest inkling that whatever is wrong with them could have more than one cause. Under the majority’s rule the statute of limitations is triggered whenever a plaintiff fails to connect his injury to a potential defendant, even though a knowledgable expert’s opinion might be necessary to correct the plaintiff’s initial misimpression of the cause of his injury. The majority’s position *299in this regard assumes a consciousness of potential litigation that is unrealistic even in the litigious society we live in today and will, on pain of forfeiture, force persons to act with excessive caution to safeguard their legal rights.

In my view, plaintiff cannot he held to have discovered the existence of his potential cause of action against the glue manufacturer until he learned, in October 1972, of the possible causal link between the inhalation of the glue fumes and his heart attacks. He could not, through the exercise of reasonable intelligence, have discovered the causal relationship essential to the perfection of his cause of action against the glue manufacturer prior to that time. I accordingly would reverse the judgment of the Appellate Division and reinstate the jury’s verdict.

Chief Justice Hughes and Justice Handler join me in this opinion.