1Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-20901

Summary Calendar

RUSSELL PAVICH, M.D. AND WIFE, MYRA D. PAVICH

Plaintiffs-Appellants,

VERSUS

ZIMMER, INC. D/B/A/ ORTHOPEDIC DEVICES, INC.,

Defendant-Appellee

Appeal from the United States District Court

For the Southern District of Texas

(H-96-CV-2317)

 

August 27, 1998

Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges

PER CURIAM:1

Russell Pavich, M.D., and his wife Myra (“the Paviches”) sued

Zimmer, Inc., d/b/a Orthopedic Devices, Inc. (“Zimmer”) in state

court asserting products liability and negligence claims, as well

as violations of the Uniform Commercial Code. Dr. Pavich claimed

Harrington rods implanted in his spine following an automobile

accident broke and injured him. Zimmer removed the case on the

basis of diversity jurisdiction and then moved for summary
 

2“Harrington rods” is a generic name for a device invented by

Dr. Paul R. Harrington. At the time of Dr. Pavich’s surgery, some

six manufacturers, including Zimmer, Inc., produced these

orthopedic devices.

2

judgment. The district court granted summary judgment, concluding

that the Paviches’ cause of action was barred by limitations. We

agree.

BACKGROUND

In 1981 Dr. Pavich was rendered a paraplegic in an automobile

accident. He sought treatment from Dr. Jesse Dickson (“Dickson”)

at Methodist Hospital in Houston, Texas. As part of the surgery

necessitated by the accident, Dr. Dickson implanted Harrington

rods2 in Dr. Pavich’s spine to provide increased support. 

In early 1994, Dr. Pavich began experiencing increased pain

and hearing a popping sound as he moved his back. He underwent an

intravenous pyelogram (IVP) May 9, 1994. Dr. Pavich took the IVP

film to Dr. R. E. Carter at The Institute for Rehabilitation and

Research (TIRR) in Houston for review May 12, 1994. Dr. Carter’s

clinical notes on that date reveal that he found “some evidence of

probable breaking of the Harrington rods.” He recommended that Dr.

Pavich consult Dr. Dickson, his original surgeon, to “see if there

is any need to do anything with regards to the broken Harrington

rod.” Dr. Pavich saw Dr. Dickson May 31, 1994. X-rays taken on

that date confirmed that the rods were broken. Dr. Dickson

concluded that it was probable the broken rods were causing Dr.

Pavich’s increased pain.

The Paviches filed suit May 31, 1996, against Zimmer in Texas
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state court, alleging causes of action based on products liability,

negligence, and violations of the Uniform Commercial Code. After

removing the case, Zimmer moved for summary judgment on two grounds

- that the suit was barred by limitations and that the Paviches had

failed to present admissible evidence that created a fact issue as

to whether Zimmer had manufactured or supplied the Harrington rods

used in Dr. Pavich’s spine. The Paviches argued that the discovery

rule should be applied to overcome the limitations bar. They

supported their allegation that Zimmer was the manufacturer of the

rod by an affidavit from Dr. Pavich. The district court found that

there was genuine issue of material fact as to the manufacturer or

supplier of the rod. It ruled, however, that although the

discovery rule applied, the statute of limitations barred the

Paviches’ suit. The Paviches now appeal.

II.

We review the district court’s grant of summary judgment on

the basis of limitations de novo. Rotella v. Pederson, 1998 WL

340393 *2 (5th Cir. (Tex)). 

III.

A.

We first examine the Paviches’ Uniform Commercial Code

violation claim. Although the nature of this claim was not

precisely specified, we agree with the district court that the

Paviches appear to complain of a breach of warranty. Actions for

breach of warranty must be brought within four years of accrual.

Tex. Bus. & Comm. Code § 2.725(a)(Vernon 1994). Subsection (b)
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provides that a cause of action accrues when the breach occurs and

that the breach occurs when tender or delivery is made. It further

delineates an exception that was not alleged here. Because the

traditional discovery rule applies only to statutes that fail to

define when a cause of action accrues, (See Moreno v. Sterling

Drug, Inc. 787 S.W. 2d 348, 353 (Tex. 1990)), the Paviches can find

no relief under this exception to limitations. Their cause of

action accrued upon delivery of the Harrington rods in 1981 and

expired four years later.

We now turn to the remainder of the limitations defense.

Under Texas law a suit for personal injury must be brought “not

later than two years after the cause of action accrues.” Tex. Civ.

Prac. & Rem. Code § 16.003(a). For purposes of the application of

limitation statutes, a cause of action generally accrues when the

wrongful act causes an injury, regardless when the plaintiff learns

of the injury. Moreno, 787 S.W. 2d at 351. 

The discovery rule is a very limited exception to statutes of

limitations. Computer Assoc. Int’l., Inc. v. Altai, Inc., 918 S.W.

453, 455 (Tex. 1996). When applied, it defers the accrual of a

cause of action. S.V. v. R.V., 933 S.W. 1, 4 (Tex. 1996). The

rule is a judicially constructed test used to determine when a

plaintiff’s cause of action accrued. Weaver v. Witt, 561 S.W. 792,

794 (Tex. 1977). Under the discovery rule such an action accrues,

not when the injury becomes certain, but when the claimant should

know of his injury. Murphy v. Campbell, 964 S.W. 2d 265 (Tex.

1997). Texas courts further describe this knowledge as when the
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plaintiff knows or, exercising reasonable diligence, should have

known of the facts giving rise to the cause of action. Computer

Assoc. Int’l., Inc., 918 S.W. 2d at 455. When a cause of action

accrues for limitations purposes is a question of law for the

court. Id. 

The discovery rule exception applies in cases where “the

nature of the injury incurred is inherently undiscoverable and the

evidence of injury is objectively verifiable.” Murphy, 964 S.W. 2d

at 270. Texas courts explain the “inherently undiscoverable”

requirement as not needing to be absolutely impossible to discover,

but of such a nature that it is unlikely to be discovered within

the prescribed limitations period despite due diligence. S.V., 933

S.W. 2d at 7. It is clear that this requirement permits the

discovery rule exception only where it is difficult for the injured

party to learn of the negligent act or omission. Computer Assocs.

Int’l., Inc., 918 S.W. 2d at 455. The second requirement, that an

injury be “objectively verifiable,” means that the presence of the

injury and the producing wrongful act cannot be disputed. See

S.V., 933 S.W. 2d at 7 (explaining cases where the court considered

“objectively verifiable”).

We agree that the discovery rule exception is properly applied

to the case before us. The nature of Dr. Pavich’s injury is

inherently undiscoverable. There was no sudden trauma that caused

the onset of his increased pain. The broken rods were not visible

to the naked eye, nor were the breaks readily discernable through

palpation. Dr. Pavich was not able to discover that the rods were
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defective until his pain began. His injury is also objectively

identifiable; x-rays clearly showed the breaks in the rods.

To determine when the two-year limitations period began to

run, we now look to when Dr. Pavich acquired knowledge of facts

which, in the exercise of reasonable diligence, would lead to the

discovery of his injury. Moreno, 787 S.W. 2d 348, 351 (Tex.

1990). Although he began to experience increased pain in early

1994, we find that it was not until his TIRR consultation May 12,

1994, that he acquired the knowledge he needed to discover he had

a cause of action. On that date Dr. Carter reviewed the IVP

results. He attributed Dr. Pavich’s pain to probable breaks in the

Harrington rods. He recommended a consultation and an X-ray to

verify the breaks. We find that, from the date of Dr. Carter’s IVP

evaluation, Dr. Pavich acquired knowledge that would lead to the

discovery of his injury. Unfortunately, the Paviches did not file

suit until May 31, 1996, two years and 19 days after their cause of

action accrued.

Accordingly, we find that the Paviches’ suit against Zimmer is

barred by the two year statute of limitations as applied under the

discovery rule. We, thus, have no need to consider Zimmer’s second

summary judgment argument.

AFFIRMED.