Clark v. Baxter Healthcare Corp. (2000)

KIRSTEN CLARK, Plaintiff and Appellant, v. BAXTER HEALTHCARE CORPORATION et al., Defendants and Respondents.

[Modification of Opinion (83 Cal.App.4th 1048) on denial of petition for rehearing.]

KREMER, P. J.-

1. The opinion filed September 26, 2000 is modified to add the following paragraph at the bottom of page 16 [83 Cal. App. 4th 1060, advance report, foll. line 14]:

In their Petition for Rehearing, defendants express the fear that our reasoning in this opinion represents a departure from the objective standards established in Jolly v. Eli Lilly & Co. (1988) 44 Cal. 3d 1103, 1110-1111 (Jolly) and Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383 (Norgart) for determining when the limitations period in such a case begins to run. No such departure is intended or achieved in this respect. Rather, our application of limitations law is consistent with the Supreme Court's caveat in Norgart, supra, 21 Cal. 4th 383 that a plaintiff, under a reasonable person standard, need only suspect a factual basis for the elements of her cause of action in order to discover its existence. (Id. at p. 410, fn. 8.) In this case, under these peculiar circumstances, it cannot yet be determined as a matter of law when the limitations period began to run. Further factual development is required.

2. The petition for rehearing in this matter is denied.