On this date in 1973, the Supreme Court decided Lopez v. Swyer, 62 N.J. 267 (1973). That opinion, written by Justice Mountain for a unanimous Court, applied and extended the “discovery rule,” under which “in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.” The case involved an allegedly gross incident of medical malpractice in connection with x-ray treatments that followed a radical mastectomy. Maria Lopez knew that she was injured but allegedly did not find out until years later that her injury might have been the fault of the doctor who administered the radiation. She allegedly learned of the potential malpractice when she overheard a doctor who had been examining her say to other doctors “And there you see, gentlement, what happens when the radiologist puts a patient on the table and goes out and has a cup of coffee.”
The Law Division granted summary judgment against Mrs. Lopez, but the Appellate Division reversed and remanded for trial. Swyer, the radiologist, petitioned for certification. The Court affirmed the Appellate Division’s decision but modified it. The modification was in regard to who would decide the question of whether the discovery rule should operate in plaintiff’s favor. The Appellate Division had committed that decision to the jury, but the Supreme Court held that the trial judge should decide that instead. “[T]he question as to the application of the statute of limitations is ordinarily a legal matter and as such is traditionally within the province of the court. Furthermore, submission of the issue to a jury is in every sense awkward…. The decision requires more than a simple factual determnation; it should be made by a judge and by a judge conscious of the equitable nature of the issue before him.”
The Court stated that “[t]he determination by the judge should ordinarily be made at a prelimnary hearing and outside the presence of the jury.” In terms of the procedure for such hearings, Justice Mountain wrote that “[g]enerally the issue will not be resolved on affidavits or depositions since demeanor may be an important factor where credibility is significant. Where credibility is not involved, affidavits, with or without depositions, may suffice; it is for the trial judge to decide.” To this day, such hearings are generally known as “Lopez hearings.”