In Fabiano v. Pagalilauan, the plaintiff filed suit for injuries sustained in a motor vehicle accident on April 16, 2008.  An x-ray taken on the day of the accident revealed a large, benign bone tumor on the plaintiff’s right knee right knee.  Several months later, the plaintiff underwent an MRI on October 11, 2008 that revealed a malignant transformation of the bone tumor.  He eventually underwent surgery to remove the tumor, but there was no biopsy to confirm the malignancy and it was never confirmed that the alleged malignancy was casually related by the motor vehicle incident.

On July 12, 2010, the plaintiff filed a suit seeking damages for the malignant transformation of the bone tumor and the resulting surgery.  The defendant moved to dismiss the complaint arguing that the applicable two-year statute of limitations had expired.  The defendant’s motion was granted and the plaintiff appealed arguing that the “discovery rule” applied.  Specifically, the plaintiff claimed that he had two years from October 11, 2008, the date the malignancy was discovered, to file his complaint.

The Appellate Court disagreed and upheld the trial court’s dismissal of the plaintiff’s complaint finding that the discovery rule did not apply in this case since the plaintiff was aware of the alleged malignant transformation before the applicable two-year statute of limitations for bodily injury stemming from a motor vehicle accident expired.  The court further noted that there was no medical evidence confirming the malignancy and causally relating it to the accident.  Lastly, the court noted that a cause of action for automobile negligence ordinarily accrues when the accident takes place, even if the initially sustained injuries later turn out to be more serious then originally believed.

http://www.judiciary.state.nj.us/opinions/a2132-10.pdf

Thanks to Heather Aquino for her contribution to this post.