On appeal from Superior Court, Law Division, Essex County.
Conford, Pressler and King. The opinion of the court was delivered by Conford, P.J.A.D. (retired and temporarily assigned).
This is an appeal from an interlocutory order, taken by leave of this court, from an order partially granting defendants' motion for summary judgment on a claim for wrongful death of decedent allegedly due to medical malpractice and the use of a defective pharmaceutical product. The court granted leave in order to settle the question as to whether the discovery rule is available in respect of the running of the statute of limitations in a wrongful death action -- an issue not heretofore decided by any appellate court in this State.
The action, instituted in the Superior Court, included survivorship counts for decedent's pain and suffering prior to death. The trial judge denied defendants' motion for summary judgment insofar as the survivorship counts were concerned, applying the rule that the discovery principle would apply thereto, Lopez v. Swyer , 62 N.J. 267 (1973), but granting the motion as to the wrongful death counts because the action had been instituted more than three years after decedent's death, and the discovery principle was deemed not available in respect of those counts under the limitation provision of the Wrongful Death Act. See N.J.S.A. 2A:31-3.
Plaintiff's decedent for several years prior to his death had been taking medication known as DBI and Diabinese for a diabetic condition. He died January 8, 1975, and plaintiff was told by an attending physician that the cause of death was heart failure. Plaintiff claims she did not suspect any relationship between the medication and decedent's death until certain media publicity in July or August 1977 reporting that "one of these drugs had been banned by the federal government because it was causing a great number of deaths and was a threat to the public health of the country." At about that date she also learned that DBI had been taken off the market by the Federal Government because its side effects had "been linked to as many as 700 deaths each year." The present complaint was filed March 28, 1978, joining various pharmaceutical companies and drug merchants and
decedent's attending physician as defendants. The complaint was based on theories of negligence, breach of warranty and strict liability in tort.
The Wrongful Death Act limitations provision, N.J.S.A. 2A:31-3, reads as follows:
Every action brought under this chapter shall be commenced within 2 years after the death of the decedent, and not thereafter.
This statute, which fixes a specified objective event to incept the period of time within which an action must be brought, is to be contrasted with the general statute of limitations, N.J.S.A. 2A:14-2, applicable to negligence actions, which directs the institution of such an action "within 2 years next after the cause of any such action shall have accrued." The latter falls within the "accrual" category of limitation provisions. It is settled law in this State that the discovery principle is not applicable except in relation to an accrual period of limitations. The subject was most recently discussed in the opinion of this court in Evernham v. Selected Risks Insurance Co. , 163 N.J. Super. 132 (App. Div. 1978), which refused to apply the discovery rule to the limitation provisions contained in N.J.S.A. 39:6A-13.1(b) of the Automobile Reparation Reform Act (No Fault). That provision, like N.J.S.A. 2A:31-3, contains a limitation provision based upon a fixed objective event. We said:
The discovery principle developed in our tort law is not applicable here. It is peculiar to statutes of limitation based upon accrual of the cause of action, accrual being postponed if plaintiff neither knows nor has reason to know the facts equating with the likely accrual of a cause of action. Burd v. New Jersey Bell Tel. Company , 76 N.J. 284, 291 (1978); Tevis v. Tevis , 155 N.J. Super. 273, 278-279 (App. Div. 1978), certif. granted 77 N.J. 483 (1978). But a statute forbidding the institution of an action, otherwise maintainable, later than a period of years after a fixed objective event, generally precludes the operation of the discovery rule. See Rosenberg v. North Bergen , 61 N.J. 190, 194-195, 199 (1972). The cause of action itself dies after that lapse of time. Id. at 199. The same effective consequence has been articulated in terms of negation of the
jurisdiction of a workers' compensation tribunal, the statute precluding institution of a claim petition unless filed within two years after the accident. Schwarz v. Federal Shipbuilding and Dry Dock Co. , 16 N.J. 243, 248 (1954). The instant statute is, of course, of the same ...