Fox

Plaintiff Brandi R. Fox filed a medical malpractice action after gastric bypass surgery performed on her resulted in severe complications. In the course of discovery, Fox received information that a medical device used during the surgery may have malfunctioned, causing her injury. Fox then amended her complaint to add a products liability cause of action against the manufacturer of the device, Ethicon Endo-Surgery, Inc. (Ethicon). Ethicon filed a demurrer raising a statute of limitations defense, to which plaintiff responded by relying upon the delayed discovery rule most recently discussed by this court in Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 [ 87 Cal.Rptr.2d 453 , 981 P.2d 79 ] (Norgart).

Plaintiff alleges that she could not, with reasonable investigation, have discovered earlier that the medical device might have caused her injury. We granted review to determine whether such an allegation is sufficient to withstand demurrer, or whether we should adopt the bright-line rule announced in Bristol-Myers Squibb Co. v. Superior Court (1995) 32 Cal.App.4th 959, 966 [ 38 Cal.Rptr.2d 298 ] (Bristol-Myers Squibb), that “[w]hen a plaintiff has cause to sue based on…