Hastie, Freedman and Van Dusen, Circuit Judges.
This is a diversity action by a Missouri physician against his former New Jersey attorneys for damages allegedly caused by their negligent failure to file an action for him until after the statute of limitations had run. Damages are sought for the loss of the value of the plaintiff's claim and for expenses incurred in attempting to recover on it.
Upon the basis of the pleadings and depositions, the district court granted partial summary judgment for the defendants upon the demand for the loss of the value of the plaintiff's claim. Jurisdiction was retained over the demand for the amount of the plaintiff's expenditures. Upon the basis of a proper determination and certification by the trial judge, this appeal was taken pursuant to Rule 54(b), Federal Rules of Civil Procedure.
The record shows that on May 6, 1960, after earlier correspondence, the defendants undertook to represent the plaintiff. By some time in June, 1960, the plaintiff had supplied the defendants with full information about his claim. However, it was not until August, 1961 that the defendants filed suit as authorized in the District Court for the District of New Jersey. That court later dismissed the suit as barred by the statute of limitations. RePass v. Keleket X-Ray Corp., D.N.J. 1962, 212 F. Supp. 406.
Subsequently, the plaintiff filed the present suit. The court below granted partial summary judgment upon the theory that counsel's delay in filing a complaint could not have caused the barring of the action because it was barred by the statute before counsel were retained.
This legal conclusion was predicated upon the following facts which appear in the record and are not disputed. The plaintiff's original cause of action was against the manufacturer and seller of a combination X-ray and fluoroscope machine which he purchased in 1932 and used for some ten years thereafter. He was then engaged in the practice of "general medicine and surgery". In 1938 he observed that the cone which confined the dangerous rays as they were being emitted lacked a protective leaden lining or shield. It was later to be the theory of his claim against the manufacturing seller that this was a defect which permitted noxious rays to escape through the cone and injure his hand while he was operating the machine.
Between 1939 and 1941 the plaintiff began to observe "small irregularities, like little warts" on his left hand. Though these reappeared from time to time, they gave him no immediate serious concern and he treated the condition himself. He sold the X-ray machine in 1942.
During World War II, the plaintiff served as a medical officer in the Navy. Subsequently, he became a member of the faculty of the University of Colorado. There, in 1947, he became convinced, as a result of consultations with colleagues, that he was suffering from X-ray dermatitis of the left hand.
It is also relevant that in a letter of June 11, 1960, to counsel, the plaintiff wrote that in the early 1940's the condition "was not bad enough to keep me out of service in the Navy, but by the time I was ready to resume practice, cracks would develop which were hard to heal. This caused me to abandon general practice where I would have to scrub frequently for surgery".
From 1939 to 1959 the change in the condition of the hand was very gradual. However, in February, 1959, "one of the areas which had persisted for a little longer than usual was biopsied" with resultant disclosure of a malignancy that necessitated the amputation of a finger and the transplanting of skin on the other parts of the hand.
Both parties concede that the applicable statutory period of limitations is two years. N.J.S.A. 2A:14-2. The plaintiff contends that the statute did not begin to run until February 1959, when he discovered that his hand had become cancerous, and thus did not fully run until some eight months after he had provided counsel with the information necessary for suit. On the other hand, the court below concluded that the period of limitations began in 1947 and had fully run long before counsel were retained.
The court reasoned as follows:
"I am satisfied, on the basis of undisputed facts, that plaintiff's cause of action against the manufacturer of the X-Ray machine accrued in 1945, at which time he realized his condition was caused by 'too much X-ray on my left hand', and that his failure to wear gloves was responsible for the condition, or at the latest in 1947, when plaintiff was told by doctors in Colorado that he was suffering from X-Ray dermatitis. In any event, it is clear that the cause of action was outlawed years before plaintiff consulted defendants. To characterize his injury, as plaintiff does, as merely 'de minimus', until amputation actually took place in 1959, is ...