Lasley v. Helms ( 1994 )

WEISBERG, Presiding Judge,

dissenting.

I respectfully dissent because I believe that Lasley learned those facts sufficient to reveal his cause of action by 1984. Therefore, those claims based upon events allegedly occurring prior to March 28, 1989, should be barred by the statute of limitations.

Constructive fraud is sufficient to toll the running of a statute of limitations, but only until such time as the plaintiff either knows, or through due diligence should have known, of the fraud. Morrison v. Acton, 68 Ariz. 27, 35-36, 198 P.2d 590, 595-96 (1948). “Notwithstanding a defendant’s continuing efforts to conceal, if plaintiff discovers the claim independently, the limitations period commences.” Sanchez v. South Hoover Hosp., 18 Cal.3d 93, 132 Cal.Rptr. 657, 662, 553 P.2d 1129, 1134 (1976). Accord Morrison, 68 Ariz. at 36, 198 P.2d at 596; Malapanis v. Shirazi, 21 Mass.App.Ct. 378, 487 N.E.2d 533, 539 n. 8 (1986); Duncan v. Augter, 62 Or.App. 250, 661 P.2d 83, 87 (1983).

Lasley testified that he believed in the 1970’s that Doriden was the source of his impotence. Knowing he was addicted to it, he unsuccessfully tried to quit Doriden during that time. In 1984, Dr. Braaten told Lasley that Doriden was a “bad drug” and that Lasley should stop taking it. Dr. Braa-ten pointedly refused to prescribe the drug. Lasley’s response to Dr. Braaten’s advice was to begin stockpiling Doriden because he was fearful that Dr. Helms might die, ending his source of supply.

From these facts there can be no doubt that Lasley knew, or should have known, of sufficient facts to reveal his cause of action at least by 1984. Any statements by Dr. Helms to the contrary could not change the reality that Lasley already knew that he was addicted to Doriden.

The majority relies upon Morrison, which is distinguishable from the facts in this ease. In Morrison, the plaintiff had no knowledge of the cause of his injury precisely because of his dentist’s continuing concealment. In the instant case, the facts clearly indicate that Lasley knew the nature of his injury, (addiction); the cause of his injury (Doriden); and the identity of the sole supplier of the injury-causing medication (Dr. Helms). Helms’ alleged statement of reassurance as to the safety of Doriden did not come until after Lasley already knew of the facts establishing his cause of action. Lesley’s personal knowledge of his injury could not be extinguished by Helms’ statements otherwise.

For these reasons, I would affirm the trial court.