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Filed 5/7/13 Herold v. Salix Pharmaceuticals CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

ELDRIDGE HEROLD,

Plaintiff and Appellant,

v.

SALIX PHARMACEUTICALS, INC.,

Defendant and Respondent.

C071037

(Super. Ct. No. SCV0028300)

After using a bowel cleansing/purgative product manufactured by defendant Salix 

Pharmaceuticals, Inc., plaintiff Eldridge Herold had to be placed on dialysis treatment for 

kidney failure. In November 2007, one of his physicians told him that the product should 

not have been prescribed to him and that if he had not taken it he would not need dialysis. 

Herold did not commence this action against Salix until three years later. The trial court 

granted summary judgment to Salix on the ground that Herold‟s claims were time-barred 
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because Herold knew of his injury and of its cause more than two years before he 

commenced the action.1

As we will explain, the trial court properly granted Salix‟s motion for summary 

judgment. Under the delayed discovery rule, the plaintiff must not only know of his 

injury and its factual cause, but must also suspect the injury is due to someone‟s 

wrongdoing to begin the running of the statute of limitations. (Jolly v. Eli Lilly & Co.

(1988) 44 Cal.3d 1103, 1110 (Jolly).) Here, the undisputed evidence shows that more 

than two years before he brought suit against Salix, Herold had sufficient information to 

cause a reasonable person to suspect his injuries were caused by wrongdoing. 

Accordingly, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The basic facts are undisputed. On or about July 10, 2007, in anticipation of a 

colonoscopy, Herold ingested a bowel cleansing/purgative product known as OsmoPrep. 

In November 2007, one of Herold‟s physicians, nephrologist Adarsh Bhat, who had been 

treating Herold for renal problems since 2006, told Herold that he needed to go on 

dialysis, that the bowel purgative product should not have been prescribed to him, and 

that if he had not taken the product he would not need to be on dialysis. Herold began 

receiving dialysis treatment in January 2008.

On November 22, 2010, Herold commenced this action against Salix, the 

manufacturer of OsmoPrep. As relevant here, Herold asserted causes of action for strict 

products liability (manufacturing defect and failure to warn), negligence, and negligent 

 

1

 Although, as we explain post, the trial court appears to have misstated the test for 

ascertaining whether the statute of limitations commenced running by omitting the 

requirement of a suspicion of wrongdoing, we review the result of the trial court‟s 

decision, not its reasoning. (Florio v. Lau (1998) 68 Cal.App.4th 637, 653.) 
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misrepresentation.2 Herold alleged that the failure of his kidneys was the result of his use 

of OsmoPrep. He further alleged that the product was defective and that the defect in the 

product was not revealed to the public until October 2009, when the FDA first required 

the product to carry a “black box” warning of the risk of acute phosphate nephropathy, 

and Salix issued a “Dear Healthcare Provider” letter informing prescribing doctors of the 

new black box warning.

In its answer to the complaint, Salix raised 36 affirmative defenses, including the 

bar of the statute of limitations. In October 2011, Salix moved for summary judgment 

based on the two-year statute of limitations in Code of Civil Procedure section 335.1.3 

Salix argued that, based on the facts we have set forth ante, Herold “knew about the 

potential for wrongdoing as of November 2007, and he did not file his lawsuit until late 

November 2010.” According to Salix, based on Herold‟s deposition testimony, Herold 

“by his own admission, had information in November, 2007 that the bowel-prep product 

he took prior to his colonoscopy that summer caused him an injury, i.e. caused such 

kidney failure as to require him to begin dialysis. He therefore had until November 2009 

to file the instant lawsuit against the manufacturer of the bowel-prep product.”

In opposition to the motion, Herold argued that Salix had not met its initial burden 

on summary judgment of demonstrating the absence of any triable issue of fact because 

the evidence on which Salix relied was subject to more than one legitimate inference as 

to what Herold suspected or should have suspected upon receiving the information from 

Dr. Bhat in November 2007. Herold also argued that even if Salix had met its burden, 

 

2

 Other causes of action included in the complaint were dismissed on Herold‟s request 

simultaneous with the filing of his opposition to the summary judgment motion.

3

 This statute establishes a two-year limitations period for “[a]n action for . . . injury to 

. . . an individual caused by the wrongful act or neglect of another.” (Code Civ. Proc., § 

335.1.)
4

Herold had raised a triable issue of fact by producing evidence that he did not suspect 

wrongdoing by the manufacturer of OsmoPrep until May 2010 and that in November Dr. 

Bhat had not “indicate[d] or impl[ied] there was any wrongdoing on the part of [the 

manufacturer].”4 Herold also asked for leave to amend his complaint if the court found 

that he had failed to show the existence of a triable issue of fact.

The trial court granted Salix‟s motion, concluding that “the statute of limitations 

began to run in November of 2007” because “[Herold] himself admits to knowledge of 

his injury and the cause of his injury” as of that date. The court also denied Herold‟s 

request to amend his complaint, noting that Herold had “presented no possible 

amendment that would overcome” the bar of the statute of limitations.

Herold timely appealed from the resulting judgment.5

 

4

 In opposing Salix‟s motion for summary judgment, Herold failed to comply with the 

procedural rules. The response to the moving party‟s separate statement must state 

whether each fact is “disputed” or “undisputed.” (Cal. Rules of Court, rule 3.1350(f); see 

Code Civ. Proc., § 437c, subd. (b)(3).) Instead, Herold “objected” to certain facts, 

contending they misstated his deposition. Objections to evidence in papers on a motion 

for summary judgment must either be made in writing or at the hearing with a court 

reporter present. (Cal. Rules of Court, rule 3.1352.) The trial court ruled any objection 

would be overruled and Salix‟s separate statement did not misstate Herold‟s deposition 

testimony.

5

 The document the parties have treated as a judgment in the action is actually entitled 

“ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT 

SALIX PHARMACEUTICALS, INC.” The body of the document, however, includes 

the phrase, “Judgment shall hereby be entered in favor of defendant,” and the notice of 

entry that was served with relation to this document specified that the document 

constituted both an order granting summary judgment and the judgment itself.
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DISCUSSION

I

Standard of Review on Summary Judgment

A defendant may move for summary judgment “if it is contended that the action 

has no merit . . . .” (Code Civ. Proc., § 437c, subd. (a).) “A defendant . . . has met his or 

her burden of showing that a cause of action has no merit if that party has shown that one 

or more elements of the cause of action, even if not separately pleaded, cannot be 

established, or that there is a complete defense to that cause of action. Once the 

defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a 

triable issue of one or more material facts exists as to that cause of action or a defense 

thereto.” (Id., subd. (p)(2).) “The motion for summary judgment shall be granted if all 

the papers submitted show that there is no triable issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.” (Id., subd. (c).)

“Because the trial court‟s determination [on a motion for summary judgment] is 

one of law based upon the papers submitted, the appellate court must make its own 

independent determination regarding the construction and effect of the supporting and 

opposing papers. We apply the same three-step analysis required of the trial court. We 

begin by identifying the issues framed by the pleadings since it is these allegations 

to which the motion must respond. We then determine whether the moving party‟s 

showing has established facts which justify a judgment in movant‟s favor. When a 

summary judgment motion prima facie justifies a judgment, the final step is to determine 

whether the opposition demonstrates the existence of a triable, material factual issue.” 

(Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.)

“The affidavits of the moving party are strictly construed, while those of the party 

opposing the motion are liberally construed, and doubts as to the propriety of granting the 

motion must be resolved in favor of the party opposing the motion. [Citation.]” (Miller 

v. Bechtel Corp. (1983) 33 Cal.3d 868, 874.) “[A] motion for summary judgment should 
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not be granted where reasonable minds could draw different conclusions from the 

evidence presented. [Citation.]” (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 759.) 

II

The Statute of Limitations and Delayed Discovery

A cause of action for personal injury, like all of the causes of action here, “accrues 

on the date of injury--unless application of the discovery rule delays the time of accrual. 

[Citation.] „Under the discovery rule, the statute of limitations begins to run when the 

plaintiff suspects or should suspect that her injury was caused by wrongdoing, that 

someone has done something wrong to her.‟” (Goldrich v. Natural Y Surgical 

Specialties, Inc. (1994) 25 Cal.App.4th 772, 779 (Goldrich), quoting Jolly, supra, 44 

Cal.3d at p. 1110.)

As is apparent from the foregoing language from Jolly --“suspects or should 

suspect”-- the discovery rule “sets forth two alternate tests for triggering the limitations 

period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was 

caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable 

person would have suspected the injury was caused by wrongdoing.” (Kitzig v. 

Nordquist (2000) 81 Cal.App.4th 1384, 1391 (Kitzig).) 

“[I]t is not enough to commence the running of the limitations period when the 

plaintiff knows of her injury and its factual cause (or physical cause).” (Clark v. Baxter 

Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1057 (Clark).) Instead, the limitations 

period does not begin to run under the discovery rule until the plaintiff suspects or should 

suspect that he has been injured by a negligent cause or someone‟s wrongdoing. (See 

Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896.)

A plaintiff, however, need not be aware of the facts that establish the wrongdoing 

to commence the statute of limitations; he needs only “a suspicion of wrongdoing.” 

(Jolly, supra, 44 Cal.3d at p. 1110.) “A plaintiff need not be aware of the specific „facts‟ 

necessary to establish the claim; that is a process contemplated by pretrial discovery. 
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Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she 

must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is 

clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” 

(Jolly, supra, at p. 1110.)

Finally, “[w]hile resolution of the statute of limitations issue is normally a 

question of fact, where the uncontradicted facts established through discovery are 

susceptible of only one legitimate inference, summary judgment is proper.” (Jolly, supra, 

44 Cal.3d at p. 1112.) 

III

Analysis

On appeal, Herold contends Salix failed to meet its initial burden on summary 

judgment of showing there was no triable issue of material fact because, “Dr. Bhat‟s 

statement to the patient [that the product should not have been prescribed to him and that 

he would not have needed dialysis if he had not taken it] does not establish the patient‟s 

state of mind, as a matter of law, upon which reasonable persons cannot disagree. . . . 

Reasonable persons can reach a myriad of states of mind from the doctor‟s statement.”

To the extent this argument and the arguments that follow are based on the 

premise that it was Salix‟s burden to establish Herold’s subjective state of mind6--that is, 

what Herold himself suspected, instead of what a reasonable person would have 

suspected--the arguments are misplaced because Salix did not base its motion for 

summary judgment on the theory that the statute of limitations began to run based on 

Herold‟s actual suspicions of wrongdoing. Instead, as Salix explains, it “moved for 

summary judgment on the basis that Mr. Herold‟s own deposition testimony established 

 

6

 As an example, Herold refers to subdivision (e) of Code of Civil Procedure section 

437c, which provides in part that “summary judgment may be denied in the discretion of 

the court, . . . where a material fact is an individual‟s state of mind.”
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that a reasonable person would have suspected some wrongdoing in November 2007.” 

(Italics added.) In other words, this case involves the objective test for triggering the 

limitations period under the discovery rule, not the subjective test.

In determining whether summary judgment was proper under the objective test, 

the question raised is whether the evidence Salix presented--namely, what Dr. Bhat told 

Herold in November 2007--supports the conclusion that, as a matter of law, a reasonable 

person would have suspected at that time that the failure of his kidneys was caused by 

someone‟s wrongdoing. We conclude the answer is yes.

Dr. Bhat told Herold that the drug he had taken before his colonoscopy caused his 

kidney failure and his resulting need for dialysis. Thus, Herold knew of his injury and its 

factual cause. Further, he was put on notice that the cause was negligent or wrongful 

because Dr. Bhat told him that he should not have been prescribed the drug. When one is 

told something should not have happened, the reasonable response is to at least suspect 

that there may have been wrongdoing involved in the happening. The use of “should 

not” alone does not, of course, establish wrongdoing. There are other possible 

explanations for a happening that “should not” have occurred. But to commence the 

running of the statute of limitations a plaintiff need not have the facts to establish his 

claim; he needs only a suspicion of wrongdoing. (Jolly, supra, 44 Cal.3d at p. 1110.) 

“Under the discovery rule, suspicion of one or more of the elements of a cause of action, 

coupled with knowledge of any remaining elements, will generally trigger the statute of 

limitations period. [Citation.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 

797, 807 (Fox).)

Here Dr. Bhat told Herold that the drug caused his injury, and further, that he 

should not have been prescribed it, providing both causation and a suspicion of 

wrongdoing. Both in his opposition to the summary judgment motion and at oral 

argument, Herold agreed Dr. Bhat‟s statements may have given him reason to suspect 

wrongdoing on the part of the doctor who prescribed the drug. He argues, however, that 
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this knowledge is insufficient to give him inquiry notice of any wrongdoing by Salix. He 

relies on Fox, supra, 35 Cal.4th 797, but Fox does not aid Herold.

In Fox, plaintiff filed a medical malpractice action after undergoing gastric bypass 

surgery that resulted in severe complications. During discovery, she learned that a 

medical device, a stapler, may have malfunctioned, causing her injury. When she 

amended her complaint to add the manufacturer of the medical device as a defendant, the 

manufacturer demurred, raising a statute of limitations defense. Fox responded by 

relying on the delayed discovery rule. (Fox, supra, 35 Cal.4th at p. 802.)

Our Supreme Court rejected the rule that all claims arising from an injury accrue 

simultaneously, even if based on different types of wrongdoing. (Fox, supra, 35 Cal.4th 

at pp. 804-805.) Instead, the court held “that, under the delayed discovery rule, a cause 

of action accrues and the statute of limitations begins to run when the plaintiff has reason 

to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that 

a reasonable investigation at that time would not have revealed a factual basis for that 

particular cause of action.” (Fox, supra, at p. 803.) Since Fox proposed to amend her 

complaint to allege she did not discover or suspect, and could not have through 

reasonable diligence, that the stapler was the cause of her injury until she learned of the 

device during a deposition, it was proper to permit amendment. (Id. at p. 811.)

Fox is distinguishable on several grounds. First, it is factually distinguishable. 

Fox had no knowledge of the medical device that allegedly caused her injury until she 

learned of it during discovery. Here Herold was aware of the drug that caused his injury 

because Dr. Bhat told him. Second, the procedural posture of the two cases differs. In 

Fox, the case was before the court on a demurrer, so the issue was the sufficiency of the 

pleadings. The Fox court noted that prior cases discussing the discovery rule arose on 

summary judgment, as here, where there was “a more fully developed factual basis for 

determining when and how the plaintiff discovered an injury.” (Fox, supra, 35 Cal.4th at 

p. 810.) Finally, Fox proposed an amendment containing specific allegations about why 
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she was unable to discover the stapler malfunction earlier. (Fox, supra, at p. 811.) Here, 

although Herold requests leave to amend, he offers no specific amendment to explain that 

he would not, through the exercise of reasonable diligence and investigation, have 

suspected that the wrongdoing was the defective nature of the drug or the manufacturer‟s 

failure to warn rather than the error of the prescribing doctor. 

On its motion for summary judgment, Salix was required to “negate plaintiff's 

theories of liability as alleged in the complaint. A „moving party need not “... refute 

liability on some theoretical possibility not included in the pleadings.” [Citation.]‟ 

[Citation.] “ „[A] motion for summary judgment must be directed to the issues raised by 

the pleadings. The [papers] filed in response to a defendant's motion for summary 

judgment may not create issues outside the pleadings and are not a substitute for an 

amendment to the pleadings.” [Citation.]‟ [Citations.]” (Tsemetzin v. Coast Federal 

Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342-1343.)

Herold argues that even when a plaintiff is aware of the product that caused his 

injury there can still be a triable issue as to when he should have suspected wrongdoing, 

citing Clark, supra, 83 Cal.App.4th 1048. In Clark, a nurse suffered adverse reactions 

(rashes and difficulty breathing) when she wore latex gloves; she suspected she was 

allergic to latex gloves, but declined testing. (Clark, supra, 83 Cal.App.4th at pp. 1052-

1053.) After suffering an anaphylactic attack during an exam by a doctor wearing latex 

gloves, Clark joined a support group where she learned there might be a defect in the 

manufacturing of latex gloves. (Clark, supra, at p. 1053.)

Clark filed suit against several manufacturers, claiming a defective product. 

(Clark, supra, 83 Cal.App.4th at p. 1053.) The manufacturers answered and moved for 

summary judgment on the grounds that the suit was barred by the statute of limitations. 

They argued the limitations period began to run when Clark was first aware of her injury 

and attributed it to latex gloves. (Clark, supra, at p. 1053.) Clark responded that her 

initial adverse reactions did not put her on notice of any wrongdoing and she believed the 
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gloves were safe until she learned from the support group of the possible manufacturing 

defect. (Id. at p. 1054.) The trial court granted summary judgment. (Ibid.)

The appellate court reversed, finding a triable issue as to when Clark suspected 

wrongdoing because the undisputed evidence gave rise to more than one inference with 

respect to Clark‟s knowledge. (Clark, supra, 83 Cal.App.4th at p. 1059.) She could have 

believed her injury was due only to her allergy until she learned of the possible 

manufacturing defect or she could have inferred from her severe reaction that more than a 

natural allergy was involved, possibly a defect in the product. (Clark, supra, at pp. 1059-

1060.)

In connection with his reliance on Clark, Herold argues various reasonable 

inferences may be drawn from his November 2007 conversation with Dr. Bhat. He 

contends reasonable persons could have concluded he should not have taken the drug due 

to his age, his medical condition, or his lifestyle. But regardless of why he should not 

have been given the drug, the fact remains that, unlike Clark, in November 2007 he was 

told that he was given the drug when he should not have been, which we conclude was 

sufficient to lead a reasonable person to suspect that someone did something wrong--

either the drug should not have been prescribed for him (for any of a number of reasons) 

or the drug itself was defective. A suspicion of wrongdoing as to either of these 

happenings commenced the running of the statute of limitations, and his conversation 

with Dr. Bhat provided the requisite notice to generate that suspicion.

The dissent posits that “a reasonable person in Herold‟s position might have 

thought that Dr. Bhat was doing no more than expressing his belief, in hindsight, that a 

different drug should have been used because of the unfortunate side effect that resulted 

from the use of OsmoPrep.” The idea that a physician‟s mere “statement of hindsight” 

does not put a patient on notice of that physician‟s failure to exercise the required skill 

and care is expressed in Kilburn v. Pineda (1982) 137 Cal.App.3d 1046, 1049 (Kilburn). 

In Kilburn, the plaintiffs (Judy and Duane Kilburn) sued a physician (Anselmo Pineda) 
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for medical malpractice based on Pineda‟s treatment of Judy for an injured back. 

(Kilburn, supra, 137 Cal.App.3d at p. 1048.) After two operations that “were much more 

painful than Pineda had told Judy they would be and produced no positive results,” 

“Judy asked Pineda why the operations had been ineffective and he said he should have 

performed a fusion operation on her back.” (Kilburn, supra, at p. 1048.) After a third 

surgery did not improve Judy‟s condition, and it came “to the point she could not walk or 

stand,” Judy discharged Pineda as her doctor. (Ibid.) More than a year passed before the 

Kilburns brought their action against Pineda.7 The trial court dismissed the action on the 

ground the statute of limitations had run before the action was commenced. (Ibid.) The 

appellate court reversed, concluding there was “insufficient evidence to support the 

finding that Judy knew, or should have known, of the cause of her injuries earlier than a 

year before the filing of this case.” (Kilburn, supra, at p. 1050.) The court explained that 

Judy‟s pain, after being told the procedure would be painless, did not support the finding 

Judy was, or should have been, on notice of malpractice by Pineda because even where 

an operation leads to rare or unforeseen injuries, malpractice will not be inferred. (Id. at 

p. 1049.)

The court then turned to evidence of Pineda‟s statement to Judy admitting that he 

should have fused her back. “This evidence does not suffice. „[A]n extrajudicial 

statement amounting to no more than an admission of bona fide mistake of judgment or 

untoward result of treatment is not alone sufficient to permit the inference of breach of 

duty; the statement “must be an admission of negligence or lack of skill ordinarily 

required for the performance of the work undertaken.‟” [Citations.] The ability of a 

physician, with the aid of hindsight, to look back on his work and decide he should have 

used a different procedure does not prove he failed in the first place to exercise the skill 

 

7

 Medical malpractice actions are subject to a one-year limitations period from the date 

of discovery under Code of Civil Procedure section 340.5. 
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and care required of a physician under the circumstances and a statement of hindsight 

does not put a patient on notice of such a failure. Even where physicians have admitted 

„fault‟ or „blamed themselves‟ for the patient‟s worsened condition, courts have refused 

to infer the presence of malpractice from the admissions. [Citations.] Pineda stated he 

should have fused Judy‟s back, not that it was a mistake to fail to do so, and Judy testified 

she did not interpret the statement as an admission of mistake. The statement does not 

support a finding Judy had actual or constructive knowledge of malpractice.” (Kilburn, 

supra, 137 Cal.App.3d at pp. 1049-1050.)

We find Kilburn distinguishable. First, Dr. Bhat‟s statements were more 

expansive than Dr. Pineda‟s admission that he “should have” fused her back. Dr. Bhat 

opined both that Herold should not have been prescribed the drug and that the drug 

caused his kidney failure. Dr. Bhat‟s statements were not solely an expression of 

compassion or remorse. (See Cobbs v. Grant (1972) 8 Cal.3d 229, 238 [that doctor 

blamed himself not an admission of malpractice].) His statements were akin to a second 

opinion that found fault with the earlier actions of another; he opined that Herold should 

not have been prescribed the drug. An unfavorable second opinion clearly can provide 

the basis for a suspicion of wrongdoing. For example, in Goldrich, supra, 25 

Cal.App.4th 772, 780, the court found a reasonable suspicion of wrongdoing with respect 

to breast implants where three specialists recommended their removal. (Compare with 

Kitzig, supra, 81 Cal.App.4th at p. 1393 [seeking a second opinion does not raise 

suspicion of wrongdoing where second physician confirms that first is “doing nothing 

wrong”].)

Second, Kilburn is a pre-Jolly case. It focuses on when plaintiffs “had actual or 

constructive knowledge of malpractice.” (Kilburn, supra, 137 Cal.App.3d at p. 1050.) 

Here we are concerned with only the suspicion of wrongdoing. (Jolly, supra, 44 Cal.3d 

at p. 1110.) Further, we note that none of cases on which Kilburn relied involved a 

statute of limitations defense. Instead, their issue was whether certain statements by 
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treating physicians or unforeseen injuries provided an inference of malpractice. (Kilburn, 

supra, at p. 1049.) That is a different question than whether a statement by a specialist 

with whom the plaintiff has a longstanding relationship that a different doctor should not 

have done something and the fact that he did caused plaintiff‟s gives rise in a reasonable 

person to a suspicion of wrongdoing. For the reasons explained ante, we conclude that as 

a matter of law the answer is yes.

DISPOSITION

The judgment is affirmed. Salix shall recover costs on appeal. (Cal. Rules of 

Court, rule 8.276(a)(2).)

 DUARTE , J.

I concur:

 NICHOLSON , Acting P. J.
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I respectfully dissent. In my view, Dr. Bhat‟s statement to Herold that he should 

not have been prescribed OsmoPrep was not sufficient, without more, to require a finding 

as a matter of law that Herold should have suspected his kidney failure was caused by 

someone‟s wrongdoing relating to the purgative product. Could a reasonable trier of fact 

reach that conclusion? Absolutely. But we are not the trier of fact, and we can affirm the 

summary judgment only if the undisputed facts support only one reasonable conclusion 

on this point. I do not think they do. I think a reasonable trier of fact could find that a 

person in Herold‟s position would not necessarily have thought that Dr. Bhat‟s statement 

suggested wrongdoing by the physician who prescribed the drug or wrongdoing by the 

drug manufacturer that manufactured and marketed the drug. Instead, a reasonable 

person in Herold‟s position might have thought that Dr. Bhat was doing no more than 

expressing his belief, in hindsight, that a different drug should have been used because of 

the unfortunate side effect that resulted from the use of OsmoPrep. As I see it, a doctor‟s 

belief in hindsight that a different drug should have been used because of an adverse side 

effect from the drug that was used would not necessarily compel a reasonable person to 

suspect someone had done something wrong in connection with the prescription of that 

drug.

Absent evidence that Herold actually suspected wrongdoing -- which Salix did not 

have -- I would conclude here that there is a triable issue of fact as to when the statute of 

limitations began to run. Accordingly, I would reverse.

 ROBIE , J.