the issue in this case is simple whether the statute of limitations was told by the delayed discovery rule and here the case law in california both in state courts and in federal courts interpretating it regarding that rule makes it clear first that ms beacons had no duty to investigate her kidney illness when she first became ill in two thousand and eleven until she learned that it could have a negligent cause later in two thousand and sixteen and second that the mere existence of articles in specialized medical journals which ms beacon's did not see did not put her on any inquiry notice that her years beginning in the year two thousand and it wasn't until that great length of time when she first became ill so as a result this was very different from a situation like a surgery where somebody then becomes over the year two thousand and eleven and she had been state taking the p p i medication since the year two thousand specifically the p p i products of the defendant since two thousand and three  but again at that time because of the great length of time that she'd been taking the p p i medication a reasonable person wouldn't make the connection a reasonable person who like ms beacon's is a lay person not a doctor not a scientist not somebody who would be expected in any way to have that kind of specialized medical knowledge she'd been taking these drugs for quite some time so they've complaint does make reference to in various places that ms beacons had been consulting doctors i believe that on paragraph one hundred of the post revised complaint that's excerpt refractors page thirty six it mentions treating physicians on paragraph one hundred four of the pros revised complaint that's excerpt of records page thirty seven she mentions that she did not have any discussions with her doctor that there was an association between chronic kidney disease and p p i use so reading the complaint in the light most favorable to m beacons the inference is clear that there had been doctors with whom she had been consulting with whom she had been receiving treatment and based on their consultation m beacon's had no actual knowledge that there was a connection between her illness and p p i use and the case law in california is clear that laypeople can rely upon the specialized knowledge of physicians and have no independent obligation to research their illness to look for a negligent cause of that so the proposed amended complaint then  expressly says that the doctors didn't inform her of the at connection or that risk is their right well the question of whether rather it expressly says that or whether that's a clear inference i think that's a little bit of a gray area so what does it say about the doctors as she was in the doctors they were treating her for the kidney disease  and presumably the doctors would have been aware of these the connection and informed her of that but what does it say about that connection or the information that came from the doctors well i don't have any more information other than what i just read to you from paragraph one hundred four but again this goes back to the decision of the district court to the extent that the complaint might not be as specific as this court might require that would properly be the subject of further amendments and that's where we believe the district court erred in dismissing the case with prejudice and without leave to amend so as your position if if the complaint sufficiently alleges that the doctors and tell her and perhaps the paragraph on her forward as that or perhaps it could be more  specific then the duty to inquire was never triggered absolutely your honor i guess during discovery they could attempt to show or determine that she in fact had been so he she had been advised of there's no question of statute of limitations whether or not the plaintiffs can make out that the tolling of provision should apply is a question of fact that can be raised on a summary judgment motion and that can certainly be raised in front of the trier of fact that a trial the defendants will have every opportunity in the context of discovery and in the context of a trial to attempt to show that in fact the doctors basis the other aspect in terms of why the district court actually dismissed the case with prejudice was that the district court found that because of the existence of these specialized medical journal articles essentially that there was some sort of presumptive notice that there was a negligent cause of ms beacon's illness to her but again the case law is quite clear that media attention even when the media is much more mainstream than these specialized articles will not impute that sort of knowledge to somebody who is a lay person  who does not personally become informed of that media attention and at this stage once again that knowledge cannot be imputed to ms beacons again in discovery at a trial the defendant would have every opportunity to attempt to show that somehow ms beacons access these articles but at this point that's simply not an appropriate inference to raise reading the complaint in the light most favorable it please the court i'm stanton jones and i represent the defendants plaintiff alleges that in two thousand and eleven she suffered an acute kidney failure which she describes as an incredibly severe life threatening and sudden onset medical injury and yet for five years it's apparent that she undertook no effort whatsoever to enquire into potential causes of this very severe life threatening medical injury instead she filed this lawsuit in twenty sixteen five years after the injury after she apparently saw a television commercial purporting to draw an association between p kidney elements where she is supposed to get this information that you say she needs from her doctor or t v or one of these high tech periodicals or ors or some other case so i think she absolutely should have consulted with her doctors and i think it's it's very striking and important that in her original complaint in her proposed amended complaint in both of her briefs to this court and even now this morning when i asked for more details about any conversations or communications with her doctors after her acute kidney failure the plaintiff has failed to come forward with any allegation or information about any conversation or communication she had with any doctor without being a doctor and she complained alleges that the doctor didn't tell her that her kidney disease could be caused i use and so the other medical information the doctor may have told her about well maybe you have hidden diabetes or maybe you had some environmental exposure is sort of irrelevant to her complaint why isn't the fact that she didn't know their doctors didn't tell her this pacific potential cause enough for her complaint your honor it's because she doesn't allege she bears the burden in invoking the discovery rule to allege facts showing that she was diligent in pursuing her claim and that despite the exercise of reasonable diligence she was unable to discover the basis for her claim that is her burden including as your position that the burden of diligence began when she suffered this acute condition yes your honor certainly nuts the way you read california law yes your honor when a person suffers a and in what she describes what case in california last says that if that if a plane of self is in a huge condition so that their on their own inquiry notice and they must diligently define you know who the to who the possible longer sure you are sex several cases say this so a case that the plaintiff relies on irving v landmark states the proposition generally the discovery rule incorporates a diligence requirement comment i'm not i understand there's a diligence requirement i read the cases i know them but i want to i want to case you to point me to a case that says that the diligence requirement begins when they have an acute condition but this sure so i think you could look at the nelson keel says ok so nelson was a case where the defendant made a similar argument that the plaintiffs had some medical conditions that should have triggered an obligation to inquire the court there rejected that argument but it did so because the court said the plaintiffs had just suffered common and non specific symptoms like fatigue or a hoax sporadic heart palpitation that had gone on for a long time and the court said in those circumstances where all the plaintiff experiences are these highly common non injury was caused by wrong doing and so there would have to be something in kidney failure that would give rise to ace suspicion or she isn't i should suspect that her injury was caused by wrongdoing are you saying that this is sufficient of wrongdoing is not part of california's discovery row no your honor what i'm saying is that it's so so if there has to be a suspicion of wrongdoing it isn't just enough to know you have a injury or an acute condition you have to suspect or should suspect that the condition was caused by wrongdoing you know and i think there are two key principles of california  injury was caused by wrongdoing your honor i think that an injury that is as severe as sudden and as life and threatening as an acute organ failure triggers a general duty to enquire into potential causes to ask to ask your doctor she might have done the at all she is saying is they had she wasn't told that it was caused by the p p i i think we don't know if she is she did that or not people go in with cancer and they say what did i do wrong and the doctor always tells you don't think about it you just have to go forward so i don't know if they do that with kidney failure and not that we don't know what she asked or we don't know what the communication was with the doctor exactly and the all we know is she was not told that it could have been caused by the p p i is that there was actual wrong doing and people get sick all the time without wrongdoing your honor in this case the fact that we still at this point have that we don't know as you say yes we're going to complain why would we know about it because in a situation like this where the complaint is otherwise time barred on its face she filed suit five years after an injury  llege i asked my doctor what caused my kidney disease and he said he didn't know what that with that is that the fact that has to be alleged that that would suffice there are many of the cases of the complaint would be a mandate to include that it could have but it hasn't and even in plaintiff's briefs in this court and even at oral argument this morning when questioned about what was the content of any communication or even the existence of any communication with any of her doctors about any potential cause of this severe injury there's no information and again it's the plaintiff's burden and even at the pleading stage the plaintiff needs to allege facts that could save what are otherwise  correct right correct and i gather in your your argument that just not the just doesn't cut the statute of limitations had already run right and so this is i think this is  key point under her theory of the california statute of limitations a plaintiff could suffer the most severe life threatening acute medical injury imaginable and talk about an injury or a disease i mean she had kidney failure she didn't wake up with her arm cut off or with her appendix removed i mean she she had a disease and she went in to see her doctor so i am not understanding of how you phrase it at so it's an it's an acute kidney failure it's an acute meaning sudden onset organ failure it's not like diagnose you have an acute heart attack should you suspect wrongdoing  you know would potentially depend on the other details but you know you wait you were something like that but i mean akure heart cute heart attacks happen all the time and we would have to say as a matter of law a reasonable person should suspect there was some wrongdoing and that that doesn't seem to be consistent with california case law so i would point you to the fox case which says it which says a few things that are relevant on this point first it says plaintiffs are charged with presumptive knowledge of an injury and there's a footnote and they explain that injury in this context means both the physical injury and its wrongful cause  it other words you have to know you have to suspect that there is a negligent cause of the head injury which which is consistent throughout california case law but what it's saying is plaintiff sort of plaintiffs have presumptive knowledge of that negligent cause if they if the they have the opportunity to obtain that knowledge from sources open to their investigation and in this case there's no reason to guess whether their worst source is open to her investigation her complaint now relies on decades old publicly available materials to support what she claims is the association between p p i and and going to kidney injury where her complaints says that her first knowledge of this was through the to you yes that was the proposed and the proposed amended complaint alleges for the first time that she first but you would have went to  specifically told by a doctor or in one case a dentist that their injury had been the result of some natural cause or that the injury was the result of some other cause other than the defendant's alleged conduct and  so yes two alleged facts that could establish the application of the discovery rule the plaintiff needs to plead that she acted with diligence and that despite her diligence she was  there the court this court said relying on because many of the california cases cited here including fox the court said to delay a cruel of an otherwise time barred claim under the discovery rule the plaintiff needed to allege that she exercised reasonable diligence to discover the factual basis for her claims within the limitations period and that she was unable to discover the factual basis for her claims despite her reasonable diligence and that neither the complaint nor the proposed mended complaint nor either of plaintiff's briefs in this court set forth allegations that could satisfy either of those element was that qu diligence is triggered by suspecting a reasonably should suspect that your problem your issue is caused by wrongdoing or a negligent cause yes there certainly needs to there certainly needs to be a duty to investigate and plaintiff's theory is that no matter how severe or an injury a person suffers there's no duty to investigate whatsoever until the information about the wrong of whether there i a full cause yeah i think that's california law that you don't have a duty to investigate until you reasonably a reasonable person would suspect ironical cause of the problem so you don't have a duty to investigate the wrong the cause of the heart attack unless you have reason to suspect that someone actually inserted something wrong into your heart that caused  california law as set forth in fox says that plaintiffs have presumptive knowledge they need to investigate and they have presumptive knowledge of both the injury and its wrongful cause if that information is available to them the resources open to their investigation and it says they don't a claim to have a little earlier and foxes as a plaintive has reason to discover a cause of action when he or she has reason at least to suspect a factual basis for its elements which includes the wrongful cause and fox says a lot of things but i don't read it is being inconsistent with the general rule i think the general rule applicable here is that a plaintiff who suffered such a severe injury needs to conduct some investigation into potential causes and to invoke the discovery rule needs to allege that she's done so at the pleading stage this complaint has not done so the amended complain doesn't do so i think thank you thank you counsel just a couple of quick points i think actually it's an interesting point that judge seiler hit upon in terms of the complaint does say the proposed amended complaint specifically paragraph want to three which is on excerpt records page thirty seven that ms beacon's was not aware of the connection between p p i and her kidney illness until april two thousand and sixteen so i would say that giving every inference toward the benefit of the plaintiff that phrase in conjunction with the other references to meeting with treating physicians would again create the inference that none of those doctors actually raise that connection to her well should she have been aware that given the acute nature that came on suddenly i don't know if that's alleged in the complaint but that's what opposing counsel says  very serious life threatening illness she should have suspected that there was a rockville cause she didn't need to now specifically that it was caused by p p i but she should have suspected there was a wrongful cause it investigated what the wrongful cause was i don't think that there is anything in california case law or a federal case law interpreted in california law that would make any distinction for some sort of acute illness the other thing i would say is that in the context of a motion to dismiss i don't think that's what could be at issue i think that in the context of a summary judgment motion or in the context of trial if the defendants were to come forward with evidence showing that with an acute attack like that that was different somehow from kidney illnesses that are not sudden acute in other words illness a reasonable person would suspect was caused by some external factors negligent cause well again i there are as your honor identified before there are plenty of other sudden acute elements that strike people that are simply idiopathic or don't have any negligent cause there's nothing to suggest in the complaint or otherwise  that a sudden acute kidney ailment would necessarily have a negligent cause and again she did consult with doctors there's the implication from the defendants that ms beacon's simply sat back made no inquiry whatsoever sat on her rights and that is belied by the proposed amended complaint which specifically makes reference to physicians who ms beacon saw ok thank you thank you coun