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    "title": "Deposition, December 17, 1935",
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    "ocrText": "UNITED STATES DISTRICT COURT\nDISTRICT OF NEW JERSEY\nVINCENT P. LA PORTE, Adminis-\n)\ntrator ed Pros. of Irene 7.\nLa Porte, deceased, and VINCENT\n)\nP. LA PORTE individuslly, and\nVINCENT P. LA PORTE, General\n)\nAdministrator of the Estate of\nIrene F. Is Porte, deceased,\n)\nIN EQUITY\nPlaintiff,\n)\non Bill etc.\nV.\n)\nUNITED STATES RADIUM CORPORA-\n)\nTION, a corporation of the state\nof Delaware,\n)\nDefendant.\n)\nMILTON M. UNDER, ESQ.,\nAttorney of Plaintiff\nLEONARD J. EMMERCLICK, ESQ.\nor counsel.\n- - -\nCOLLINS & CORBIN, ESQS.\nBy EDWARD MARKLEY, ESQ.\nEDWARDS, SMITH & DAWSON, ESQS.\nBy EDWIN F. SMITH, ESQ.\nAttorneys of Defendant.\nMEMORANDUM\nFORMAN, District Judge\nThe principal question in this suit is whether or not the\nplaintiff, in an action at law for damages caused by injuries to the\nplaintiff's intestate and her subsequent death, is entitled to an\ninjunction restraining the defendant from pleading the statute of\nlimitations as a bar to the plaintiff's alleged cause of action at\nlaw on the ground of equitable fraud.\nIrene F. La porte, the plaintiff's intestate, was employed by\nthe defendant, the United States Redium Corporation, from May 14,\n1917, to December 11, 1918, and for a brief period of not over six\nweeks in 1920.\nThe decedent was employed to pain the dials of inexpensive\nwatches with 8 luminous paint containing small quantities of the\nelement radium in the form of a sulphate. while the decedent was\nin the employ of the defendant no precautions were taken to pre-\nvent dial painters from being exposed to the small quantity of\nredium sulphate, an insoluble salt, and the radium emanation present\nin the air of their workrooms.\nThe decedent was one of eighty girls who worked for five and\none-half days per week in a large factory room ventilated by &\nskylight and by windows around the room. The windows were regu-\nlated by any of the girls who saw fit to do so. They worked at\nfour rows of tables extending practically the length of the room.\nEach girl worked a few feet away from the girl next to her and a\nfew feet away from the girl at the opposite side of the table.\nEach girl procured a tray containing twenty-four watch dials and\nthe material to be used to pain the numerals upon them so that\nthey would appear luminous. The material was 8 powder, of about\nthe consistency of cosmetic powder, and consisted of phosphorescent\nzinc sulphide mixed with radium sulphate. This compound was con-\ntained in a small vial about an inch and one half long and about\nthe size of an ordinary lead pencil in diameter. The powder was\npoured from the vial into a small porcelain crucible, about the\nsize of a thimble. A quantity of gum arabic, as an adhesive, and\na thinner of water were then added and this was stirred with a small\nglass rod until a paint-like substance resulted. In the course of\na working week each girl painted the dials contained on twenty-two\nto forty-four such trays, depending upon the speed with which she\nworked, and used a vial of powder for each tray. when the pain*-like\nsubstance was produced a girl would employ it in painting the figures\non a watch diel. There were fourteen numerals, the figure six being\nomitted. In the painting each girl used a very fine brush of camel's\nhair containing about thirty hairs. In order to obtain the fine lines\nwhich the work required, a girl would place the bristles in her mouth,\nand by the action of her tongue and lips bring the bristles to &\nfine point. The brush was then dipped into the paint, the figures\npainted upon the dial until more paint was required or until the\npaint on the brush dried and hardened when the brush was dipped\ninto a small crucible of water. This water remained in the cruci-\nble without change for a day or perhaps two days. The brush would\nthen be repointed in the mouth and dipped into the paint or even\nrepointed in such manner after being dipped into the paint itself,\nin a continous process. some girls painted an entire dial with 8\nsingle pointing of the brush. some re-pointed the brush after each\nnumeral.\nIt appears that the radium used by decedent had between eight\nand thirty micrograms of radium element to one gram of zinc sulphide;\nand 1,000 microgrems equal one milligram and 1,000 milligrams equal\none gram.\nAt any rate, the maximum quantity the decedent might\nhave ingested was 43 micrograms of radium sulphate for each working\nday. This figure is doubtless much too large. The plaintiff has\nincorporated the following chart in his brief and accepts the figures\nused in the third column for his purposes:\nRADIUM INGES-\nRADIUM INGES-\nRADIUM CONSTANTLY\nMATERIAL USED.\nTED PER WEEK.\nTED IN 11 YRS.\nIN ALIMENTARY TRACT\n8-1/3 ug.\nra.\nper gram\n40 grams 8. week\n16-2/3 ug.\n1300 ug.\n46 ug.\n1 gram ingested\nout of every 10\ngr. used.\n33-1/3 ug.per gr.\n40 grams 8. week\n66-2/3 us.\n5200 ug.\n184 ug.\n# gr. ingested\nout of every 10\naveraging 8-1/3\nto 33-1/3 ug.\nper gram\n40 gr. a week\n41-2/3 us.\n3250 ug.\n115 ug.\n* gr. ingested\nout of every 10\nThe evidence shows that the decedent was in good health at the\ntime she left the employ of the defendant. In April, 1921, the\n-2-\ndecedent was married to the plaintiff. Her health remained excellent\nup until the autumn of 1927.\nIn the latter part of 1927 the decedent complained of a fear\nthat she might have radium poisoning. She delayed visiting her\ndentist for some time because other persons who had radium poison-\ning had demonstrated symptoms similar to those from which she suffer-\ned. The decedent constantly associated with those persons who were\nsuffering from the radium poisoning and frequently discussed its\ndanger and symptoms with them, her husband and sister.\nIn the spring of 1928, the decedent had a tooth extracted that\ntroubled her. she told her dentist that she had hesitated to go to\nhim for fear that she might have radium necrosis. Her dentist re-\nassured her and for the time being she appeared to be in good health.\nFrom the latter half of 1928 to October 1930, she was treated\nby 8 doctor and she complained continually of pains in her face and\njaw and frequently discussed radium poisoning. she was convinced\nthat she was a victim. In October, 1930, she began to have pains\nin her legs and joints. Dr. Harrison S. Martland, the chief Medical\nExaminer of Essex County, New Jersey, determined that the decedent\nwas e victim of radium necrosis on October 15, 1930. At that time\nDr. Martland read X-rays taken of the decedent's jaws in 1925 as\nshowing typical areas of radiation osteitis.\nOn May 4, 1931, she first presented a claim for damages to\nthe defendent.\nThe decedent died June 16, 1931. Dr. Martland performed an\nautopsy and confirmed his diagnosis that the decedent had died of\noccupational radium poisoning (osteogenic-sarcoma of pelvis) in the\nwatch dial industry. Dr. Martland found radium deposited in the\nbone structure of the decedent.\nPlaintiff, husband of the decedent, individually, as general\nadministra tor and as administrator ad prosequendum, commenced an\naction at law for her injuries and death on May 17, 1932. In its\nanswer to the complaint at law, the defendent pleaded various pro-\nvisions of the New Jersey statute of limitat ons, among other\ndefenses.\non January 10, 1933, the plainti ff instituted this suit in\nequity to enjoin the defendant from setting up the statute of lim-\nitations as a defense to the plaintiff's action at Law.\nNothing like a fair analysis of the evidence relating to the\ndevelopment of radium therapeutically and industrially can be given\nhere. The legal issues will be decided on the basis or the evidence\noffered by the plaintiff and only 8. brief allusion can be made to\nthe details of the cases presented in such 8 thoroughgoing manner\nby both parties.\nThere is no question but that dial painters, at the time the\ndecedent worked in the defendant's factory, ingested radium sulphate\ncontained in the paint, with which they worked, by pointing the\nbrushes with their lips and that they breathed and swallowed radium\nsulphate contained in the dust in the air of their workroom, and\nredium emanation present in the workroom. The dial painters were\nprotected by neither special methods or devices nor scientific ven-\ntilation.\nDoubtless, the insoluble radium sulphate was absorbed in part\nafter ingestion; some of it must have reached the bloodstream and\neventually been deposited in the bones of 1 ts victim. At the same\ntime a diel painter would have constantly been subject to radium\nemanation and radium A. It suffices that the autopsy of the de-\ncedent revealed that radium was present in the decedent's bones after\nher death in 1931. The amount of radium to which the systems of\ndial workers were subjected must have been fairly constant and added\nto that it appears that its effect would be cumulative.\nBut there is no reason to consider those factors now. It has\nonly been established since 1924 or 1925 that the conditions under\nwhich the dial painters worked in 1917 and thereabouts subjected\nthem to a pernicious and frightful occupational hazerd. The im-\nportent factual question is to determine how much the scientific\nand medical world and the defendant knew about the industry at\naction arose.\nEven to-day the problems concerning radium have hardly been\ntouched. A decade and more ago theories presently accepted were\nin a stage of controversial experimentation or unknown. In the\nplaintiff's brief there are listed some twenty-five alleged ad-\nmissions made by the defendant's experts in the course of their\ntestimony to the effect that in 1917 radium was known to be dan-\ngerous; that it was possessed of tremendous energy; that its\nvery use, medically, was experimental and that there were divers\nother recognized and unrecognized reasons in the light of the\nknowledge of that time to destroy the defendant's case. Many of\nthose \"admissions\", much of the plaintiff's evidence and innumer-\nable of plaintiff's assertions are unquestionably true. The great\ndifficulty is that no one was talking about the use of radium un-\nder the circumstances here.\nof course it was recognized in 1917 and many years before\nthat radium was the most active of the elements and possessed an\nincomprehensible store of energy.\n1. Madame Curie, \"Radioactive Substances\" (1904).\nLord Rutherford likewise made this clear in his book, \"Radio-\nactivity\" published in 1905 (Exhibit P-25), and also in his book,\n\"Radioactive Substances and their Radiation\", published in 1913\n\"Exhibit P-23), pointing out that radium was known to be B substance\nwhich was undergoing spontaneous self-transformation. In other words,\nthe breaking up of atoms of radium discharged a gas known as radium emana-\ntion. This gas in turn decayed and deposited a solid product known as\nradium A. This in turn decayed and left a solid known as radium B,\nand so on down through radium F. which decayed and deposited lead.\nRadium itself was known to have a half life of 2000 years, that is\nto say, it would be reduced to half its activity in 2000 years.\nWhat activity then remained would taken another 2000 years to re-\nduce fifty per cent, and so on. Radium emanation was known to have\na half life of 3.85 days and a practical life of about 30 days, al-\nthough after 90 days approximately 1% of the emanation would still\nremain in existence. Radium A to F. inclusive, were known as the\nactive deposit. Their periods of half life appear on the chart\nwhich is Exhibit P-24, a copy of which 18 attached hereto, and mark-\ned Appendix I.\nThese various products gave off radiations. Redium, radium\nemanation, radium A, and radium Fee gave off alpha particles. Radium\nitself was known to give off 34,000,000,000 per second per gram.\nIn equilibrium with its decay products almost five times this number\nof alpha particles were given off per second. (Exhibit P-23,\npage 132.) These particles were known to have mass and to be approx-\nimately 7,000 times the size of an electron. They were likewise known\nto be positively charged. The speed with which they were shot out from\nthe parent radioactive atoms was between 12,000 and 18,000 miles per\nsecond, and they were shot out in a constant stream.\n-5-\nSeveral writers, one as early as Avacy\nsalts which were not eliminated from the body would eventually be\ndeposited in the bone structure and there replace the calcium and\nactually become a part of the structure in the form of radium sul-\nphate. 2 This was theory and there were no computations at that\ntime to indicate what percentage of a given amount of the soluble or\ninsoluble salt taken internally would eventually reach the bone.\nThere is evidence in the literature that radioactive salts in-\n3\ntroduced in the body would be eliminated in part very slowly.\nAssuming that was established it might be a fair inference but sure-\nly not conclusive that radium given in frequent doses was cumulative\nin its nature and e ffect.\nThe evidence shows that in 1917 many dangers to the human body\nfrom radium and radium emanation were recognized. Long exposure to\nemanation, irradiation, and X-rays had resulted, among a fow tech-\nnicians and s cientific men, in fatal or dangerous injuries.\" an\narticle published in 1914 was entitled \"Concerning Occupational\nInjuries Due to Radioactive Substances,\" 5 and another, \"Occupation-\nal Diseases Due to Radium; Report of Cases. 116 Those articles were\nprincipally concerned with external burns of the skin.\n2. Seil, Viol and Gordon, \"Elimination of Soluble Radium Salts, Taken\nIntravenously and Per 08\", (May 1, 1915) New York Medical Journal p.\n896, Exhibit P-34; Dominici and LaBordes, \"Study on Injection of\nRadium Salts\", (1913) Comptes Rendeus Des Seances De L'Academie Des\nSciences, 156, 1107-1109, Exhibit P-12; and \"Concerning Fixation By\nthe Skeleton of Radium Injected in the Soluble State\" (1913), Seances\nEt Memoirs De La Societe De Biologie, 75; 108-110, Exhibit P-13.\n3. Dominici and the La Bordes, supra note 2.\n4. Mesernitzky, St. Petersburg-Kreuznoch, \"Concerning Injury to the\nSystem Through Large Doses of Radium Emanation\" (1914), publication not\ngiven, ExhibitP-6; \"Contribution on the Biological and Pathological\nAction of Soluble Radium Salts - With Special Reference to its Thera-\npeutic Value in Pernicious Anaomia and Leukemia\", (1914), \"Radium\"\nVol.III, No. 5, P. 65, Exhibit P-21A; Part II of same article, Vol.III,\nNo.6, P. 85, Exhibit P-21B; Rolleston, \"The Harmful Effects of Irradi-\nation\", (1930), The Quarterly Journal or Medicine, No. 93, D. 101,\nExhibit P-49.\n5. Gutzendt and Halberstaedter - Duetsche-Medizinische Wochenschrift,\nMarch 26, 1914, P. 653, Exhibit P-9.\n6. Ordway, The Journal of American Medical Association, Vol. LXVI,\nNo.1, p. 1, 1916,-Exhibit P-26.\nFurthermore, prior to 1917, the indications from radium were\ncontrary to using it for treatment in shumber of diseases.\" It\nwas fairly established that burns might show late effects in the\nform of general disturbances or skin changes resulting in cancer. 8\nThe plaintiff said correctly in his brief that in 1917 \"no one had\nre-examined an individual who years before had been treated by ra-\ndium salts administered internally, and found evidence of late injur-\nious effect.\" But it is difficult to understand how the defendant\ncan be said to have perpetrated a fraud when it, a commercial enter-\nprise, failed to draw inferences, which no doctor had ventured, to\nthe effect that its industry was suicidal to its workers. It was a\ntheory that radium would be deposited in the bones and there were\nproven cases of burns by X-ray and direct contact causing delayed ex-\nternal effects but that does not lead to the conclusion that dial\npainters were documed or even in danger as of the knowledge of 1920.\nOn the contrary in the early literature, numerous statements\nwere made as to the beneficial effect of radium applied internally.\nSome of the articles to that effect are listed below. 9\n7. Mesernitzky, supra Note 4; Cameron and Viol, \"Classification of\nVarious Methods Employed in the Internal Administration of Radium\nEmanation and Radium Salts\", 1915, Radium, Vol. IV, No. 4, P. 57,\nExhibit D-18.\n8. Gutzendt and Halberstaedter, supra Note 5; Rolleston, supra Note\n4; Rutherford, \"Radioactive Substances and Their Radiations\", 1913,\nExhibit P-23.\n9. Proescher \"The Intravenous Injection of Soluble Radium Salts\",\n1914, Radium, Vol.II, No. 4, P. 45, Exhibith-26; Vol. II, No.6, p. 77,\nExhibit D-28.\nBissell, \"The Intravenous Injection of Radium Mement\", Nov. 1914,\nPennsylvania Medical Journal, P. 129, Exhibit D-29.\nCameron and Viol, \"Classification of the Various Methods Employed\nin the Internal Administration of Radium Emanation and Salts\", 1915,\nRadium, Vol. IV, No. 4, P. 57, Exhibit D-18.\nDelano, \"A Study in the Internal Therapeutics of Radium\", July\n24, 1915, Medical Record, D. 137, Exhibit D-32.\nBissell, \"Radium Therapeutics Otherwise Than For Malignancy\",\nJune, 1915, Medical Record, D. 1023, Exhibit D-30.\nProescher, \"Contribution on the Therapeutic Value of the Intra-\nvenous Injection of Soluble Redium Salts in the Treatment of Perni-\ncious Annemia and Leukaemia\", 1916, Radium, Vol. VII, No. 3, P. 71,\nExhibit D-27A., Vol. VII, No.r, P. 102, Exhibit D-27.\nPark, \"Chronic Interstitial Nephritis\", July 8, 1916, New York\nMedical Journal, P. 66, Exhibit D-30A.\nSterns, \"Radium and Radium Salts\", 1920, American Journal of\nElectrotherapeutics and Radiology, D. 169, Exhibit D-22.\n-7-\nPlaintiff argues that the administration of radium by pre-\nscription under the supervision of physicians was not to be com-\npared with the exposure by ingestion, inhalation, etc., suffered\nby the workers. This is undoubtedly true, but plaintiff seeks to\ncharge that defendant should have known of the great danger from\nthe literature of that time. A great deal of the literature, as\nheretofore stated, described the advantages and benefits to be\nderived from the administration of radium, the existence of which\nfurnished an indubitably disarming influence as to the dangers attend-\nant to its effect.\nIt was true in 1917, as the plaintiff states, that radium had\nbeen known to have a fatal effect on human beings; that medical\nand scientific non would prefer to experiment on animals rather than\npersons to determine its effects under different conditions; that\nit was not used in treatment of certain diseases because of contra-\nindications; that the dial painters were ingesting radium and its\nemanations under conditions far different from its medical use;\nthat the dial workers would have been partly protected by certain\ndevices and changed working conditions; that some literature may\nhave suggested the chance of hazard in the occupation and the re-\nquirement for constant or frequent medical surveillance; that there\nwere less dangerous methods of dial painting in use in Europe which\ncould have been adopted, and that there were no xpériments con-\nducted or being conducted in 1917, or prior thereto, to determine the\neffect of dial painting.\nwhat has been said as to the evidence before the court may\nnot be accurate from an expert's viewpoint. It was not 80 intended.\nThe object of the narrative was to present the situation in the\nbest light for the plaintiff since the court is of the opinion\nthat relief must be denied to the plaintiff on his own statement\nof facts. Indeed, it is doubtful if an accurate picture of the\nknowledge existing in 1920 concerning radium could be drawn even\nby experts. The learning of that time was so solored with con-\njecture and theory, some of which has since been discarded, that it\nis impossible impartially and reliably to rationalize it.\nThere is no question but that defendant was utterly ignorant\nof the harmful effects attendant upon its factory process until 1984\nwhen its attention was directed to an alleged case of radium necrosis\nsuffered by one of its former employees.\nIt had examinations made of soveral of its employees of long-\nest standing and requested an investigation into the situation by\nthe Life Extension Institute of New York. That agency reported on\nMarch 11, 1924 that no evidence was disclosed of the influence of\nany particular metallic poisoning and that the o ases, insofar as\nthey went, showed the ordinary range of human troubles and did not\nreflect any specific occupational influence. (Letter of Dr.Fisk,\nto H. B. Viedt, Vice President, U. S. Radium Corporation, Exhibit D-3.)\nOn March 12, 1924, it retained Dr. Cecil K. Drinker of the\nSchool of Public Health, Harvard University, to conduct an investi-\ngation of the cause of necrosis occurring in reported cases. His\nreport concludes that the necrosis was probably caused by exposure\nto radium, but as to how this could have occurred he was unable to\ndemonstrate then. The report is contained in Exhibit P-31-7 and\nthe substance of the same was received for publication on May 25,\n1925, by and actually published in the Journal of Industrial Hygiene\nof August, 1925, Vol. VII, No. 8, P. 371, Exhibit D-7.\nFollowing investigations and reports made by Dr. Blum, a den-\ntist, and Dr. Hoffman, a statistician, in 1924, Dr. Harrison 8.\nMartland, in 1925, published his first article on the subject,\nwhich he entitled, \"Some Unrecognized Dangers in the Use and Hand-\nling of Radio-Active Substances\", Journal of American Medical\nAssociation, Vol. 85, D. 1769, December 5, 1925, Exhibit DOL. It is\nundisputed that he established the occupational hazard in the dial\npainting industry.\nThe defendant instigated the investigations and evidenced a\nwillingness to cooperate in them, demonstrating its effort\nto determine the cause of the harmful effect upon its workers\nas soon as its attention was directed thereto and there is no\nsuspicion upon which the court my rest to charge it with having\nknowledge of such cause or that it should, prior to 1924, have had\nsuch knowledge.\nThere is no better way to illustrate that conclusion than to\nturn briefly to the defendant's case.\nThe defendant contends that up until the year 1924 it did\nnot know and cannot be charged with the knowledge that it was\ndangerous for the dial painters to ingest the possible maximum\namount of radium in the paint into their systems in the course\nof their work.\nIts contention is based on the assumption that the decedent\nmight have ingested 43 micrograms of radium sulphate daily for\n5g days a week for a period of a year and a half. That amount is\na considerably larger figure than that on which the plaintiff in-\nsists. The defendent suggests it because Dr. Martlond once stated\nthat this was the maximum amount according to his estimate.\nAS a matter of fact, it is evident that a far smaller quantity\nwas taken into the system. Mach worker painted 24 dials, each\ndial having 14 figures, with a gram or less of paint. There are\nin\n28.54 grams/an ounce and the several grades of paint used contain-\ned 1 part of redium to 50,000 to 120,000 parts of zine sulphide.\nAgreat number of considerations enter into any approximation of\nthe amount of paint ingested and all of them tend to lessen the\namount suggested by the defendent or calculated by the plaintiff.\nDr. Lind testified that in his opinion of 1920 no harmful\neffects were to be expected from dial painting under the circum-\nstances and the length of time that the decedent worked. He\nfurther testified that the literature of that time had nothing\nin it to lead to a contrary conclusion. Dr. Lind's opinion was\ncorroborated at the trial by the testimony of Dr. Schlunt, Dr.\nFlinn, Dr. Failla and Dr. Pohle.\nBoth Dr. Lind and Dr. Schlunt participated in the Government's\nproject to recover radium in Colorado, and as physicists stand out\nin the field.\nDr. Lind exposed himself, without anticipa-\ning danger to as much as 440 milligrams of redium at one time, and\nin a period of four years he supervised the handling of 8 grams of\nradium. Despite the attack made by plaintiff against him because\nhe could qualify only as a physicist and not as an expert medical\nman consideration of the evidence in this case makes it increasingly\nobvious that the considerable portion of the working knowledge and\nexperimentation in the redium field was that of physicists and not\nof physicians.\nThe corroborating testimony mentioned came from very respect-\nableeauthorities.\nThe Office of Industrial Hygiene & Sanitation, United States\n10.\nPublic Health Service, stated in an article published in 1933 the\nfollowing:\n\"Painting watch and clock dials with a luminous\npaint containing a radioactive substance began in\nthis country in 1915. During the world war and in-\nmediately after, this small industry was at its peak,\nand since the industry began several thousand workers\nin all have been employed. Only within the last dec-\nade had poisoning by radium been recognized. Martlend\nin 1929 reported 40 cases of redium poisoning among\nworkers and former workers in this industry or in close-\nly allied occupations.\"\nIt is admitted that Dr. Martland first established the danger\nin the dial painting industry in 1924 or 1925. Prior to 1924, it\nhad not been suspected and Dr. Lind, whose creditability is not to\nbe questioned, was unable to conclude that Dr. Martland WEB right\nuntil 1929.\n10. \"Health Aspects of Redium Dial Painting\", 1933, The Journal of\nIndustrial Hygiene, Vol. XV, Nos. 5 and 6. Rxhibit P-53. This series\nof articles contained the findings and recommendations resulting\nfrom an investigation of the U. S. Public Health Service into the\nhazards which existed in this industry, which investigation was under-\ntaken in collaboration with on advisory Committee consisting of Dr.\nDr. May, who was the only expert witness for the plaintiff,\ntestified that prior to 1924 there was nothing in the literature\nindicating danger from dial painting or to show that harm would\nresult from the use of radium under those circumstances. He stat-\n11.\ned that he agreed with an article published in 1926 by Dr. Flinn\nthat the conclusion that no industrial hazard existed in the dial\npainting industry was justified as of that time. He later stated\n12.\nhe disagreed. But he accepted Dr. Martland's articles\nof\n1925\nand 1926 as true. He further agreed with the conclusion or Dr.\nField as or 1920 that small quantities of radium given internally\nhad no toxie effect.\nIn 1912, an article by Dr. E. Bellingham Smith 13. stated:\n** * * Soluble salts of radium are repidly elimin-\nated, however administered. The insoluble salts per on\nare excreted directly by the bowel, and there is no\nevidence of any temporary absorption and circulation.\"\nDr. May disagreed with the conclusion that insoluble radium\nsalts administered per os are excreted completely. He thought that\nas of 1912 some of the insoluble salt might be absorbed. But there\nis no literature prior to 1920 that supports his opinion as to\ninsoluble salts, and the opinions of Dr. Schlundt and Dr. Lind to\nthat effect are contrary.\nL. F. Curtiss, Physicist, U.S. Bureau of Standards, Washington, D. C.;\nProf. William Duane, Professor of Bio-physics, Harvard University; Dr.\nGioscohino Failla, Physicist, Memorial Hospital, New York city;\nDr. O. H. Gish, Chief, Section of Terrestrial Electricity, Department\nof Terrestrial Magnestism, Carnegie Institution of Washington; Prof.\nS. C. Lind, Director, School of Chemistry, University of Minnesota;\nDr. Harrison S. Martland, Chief Medical Examiner, Essex County, New\nJersey; Prof. Herman Schundt, Professor or Physical Chemistry, Uni-\nversity of Misscuri.\n11. Flinn, \"Radionctive Material An Industrial Hazard?\", 1926, Journal\nof American Medical Association, Vol. 87, No. 25, P. 2078 Exhibit P-39.\n12. Martland, \"Some Unrecognized Dengers in the Use and Handling of\nRadioactive Substances\", Journal of American Medical Association, Vol.\n85, P. 1769. Dec. 5, 1925, Exhibit D-1.\nMartland, \"Microscopic Changes of Certain Anemias Due to Radio-\nactivity\", 1926, Archives of Pathology, Vol. 2, No. 4, P. 465 Exhi-\nbit D-6.\n13. \"Distribution and Excretion of Radium and its Emanation After\nInternal Administration\", Quarterly Journal of Medicine, 1912, D. 249,\nExhibit D-10.\n-12-\nRadium sulphate is one hundred times less soluble than barium\nsulphate. The berium salt is so insoluble that it is introduced\nin the intestinal tract so that it may be examined by X-ray. Up to\n1925, the literature did not show that radium sulphate would remain\nin the body. Although there had been suggestions to the contrary,\nit was accepted that the insoluble salt when taken by mouth would\npass directly through the intestinal tract and from the body in a\nshort period of time. Redium was administered by some doctors in\nthe form of bromide, on the theory that it would remain in the\nbody longer.\nIt must be remembered that in considering all of the widence\nprior to 1924 that none or it is remotely concerned with the dial\npainting industry but with the knowledge and experiments of the\nscientific and medical world.\nThere is no way to illustrate more emphatically what the ex->\nperts in radium thought of the dial minting industry than to recall\nthat even after Dr. Martland's findings in 1925, Dr. Lind, Dr. Flinn,\nDr. Schlundt and Dr. Pohle disagreed with him, although they all\neventually came to agree with him.\nIt is apparent from the literature produced during this trial\nthat prior to 1925, elthough there was BOBIO suggestion of hazard\nthrough the agency of radium, may halled it as a great boon to\nhumanity, and its internal uses by injection, inhalation, etc., were\nfrequently advocated. That the articles by Hoffman followed by that\nof Martland, Conlon and Knef in The Journal of the American Medical\nAssociation, published respectively in September and December of\n1925, startled the medical world, is demonstrated in the language of\nLacessagne in his article entitled, \"A New Professional Accident\nAmong Handlers of Radioactive Materials; Necrosis or the Maxillaries\"14.\n14. Published in the Peris Medical, Feb. 6, 1926, PP. 152-134,\nExhibit P-14.\n-18-\nHe says,\n\"Two recent articles (1), appearing in the\nJournal of the American Medical Association,\nhave revesled an unforseen and surprising new\naccident, which has affected an important propor-\ntion of workers occupied in painting with luminous\nradioactive products; it is a question of maxillery\nnecrosis, always serious, and often ending in death.\"\nHe concludes,\n\"This persistence explains th to serious lesions\nof blood forming organs which can appear some years\nafter the introduction of the radioelement in the\nbody, and ends in fatal pernicious anemia. The\nknowledge of these facts imposes on physicians the\ngreatest care in the practice of injections of\nlonglived radioactive materials.\"\n(Underscoring in both paragraphs mine).\nAgain in 1927, Allen Bowing and Rowntree 15. commented upon the\nevolution of thought on the use of radium, 0.8 follows:\n\"Fifteen years ago the literature was flooded\nwith the optimistic reports on the use of radium\nin medicine. These reports ceased rather abrupt-\nly, and during the last ten years little has been\nwritten on the subject, except by those directly\nor indirectly concerned commercially. During the\nintervening years Radium has been employed sporad-\nically in the treatment of various diseases, par-\nticularly arthritis, neuritis and hypertension,\nand more recently thrombo-angiitis obliterans\n(Buerger's disease). Although striking results\nhave been observed on rare occasions in 08865 of\nhypertension and arthritis following the use of\nradium by the so-called sipping cure, the method\nhas dropped into complete disuse and has been re-\nplaced by a more certain procedure, the intravenous\nadministration of the soluble salts of radium. How-\never, in most cases, even with this method results\nhave been meagre, transient or entirely negative.\nRedium/ treatment Is now rerely employed in our wards, in\nspite of the fact that it always can be had on re-\nquest.\"\nIn a paper published in 1932, by Dr. Martland, entitled \"The\nDanger of Increasing the Normal Radio-activity of the Human Body\", 16 he\n*Tt 1s the purpose of this paper to summarize\nmy findings end views and leave the reader with\nthe fects, that undue or professional exposure\nto radiumend other long-lived radioactive sub-\n15. \"The Use of Radium in Internal Medicine\", Jan. 15, 1927, The\nJournal of the American Medical Association, Vol. 88, No. 3, D. 164,\nExhibit D-25.\n16. Emanuel Libman Anniversary Volume, 1932, International Press,\nNew York, Exhibit P-33.\nstances is dengerous and should be reduced to a minimum,\nand that the thereapeutic use of these substances by internal\nadministration, either by way of the mouth, or by inhalation,\nor by intravenous or intramuscular injection may be highly\ndangerous and is not warranted in any medical condition, as\nnone of the known radioactive substances produce any curative\nresults.\n\"It should be emphasized, that the disastrous results\ncited in this paper are not to be confused with the legiti-\nmate use of external irrediation by means of the X-rays and\nradium, such as is used for the treatment of malignancy in\nhospitals and institutions specializing in and competent to\nhandle such treatments. The deleterious effects and hazards\nof external, penetrative, non-accumulative irradiation are\nwell recognized and have been reduced to a minimum by proper\ntechnic.\"\nHe concludes:\n\"Since there is no evidence indicating any beneficial\nresults from the drinking of waters containing emanation,\nexcept physcic ones, there is scientific evidence that\nradon is not free from danger, their use should be forbidden.\nThe human race will not suffer if they are eliminated. ***\n\"It would appear that the intravenous injection of\nlong-lived radio-active elements, or the internal adminis-\ntration of radium, mesothorium, or radiothorium, is highly\ndangerous on account of the late: harmful effects. As\npreviously stated, and here repeated for emphasis, it is\nnot warranted in any medical condition, as none of the\nknown radioactive substances produce any specific or\ncurative result.\"\nThese, then, were red flags of warning to the medical profession.\nThey appear subsequent to the year 1925. But if the defendent is to be\ndenied the protection of the statute of limitations, the plaintiff's\ncase must be based upon the proposition that the defendant should have\nknown of the hermful effects during the period from 1917 to 1920.\nIf it is assumed that a cause of action existed in this case in\nfavor of the decedent against the defendent, it must have accrued\nsometime in the course of her employment in 1917, 1918, or 1920, at the\nlatest, when she was last exposed to the radium. It is unnecessary, if\nnot impossible, to determine the exact date. The question has not been\nraised but, at any rate, if the action arose on the last day of her\nemployment, the statute would have normally barred her remedy sometimes\nin 1922 which is at least two years before radium necrosis was dis-\ncovered and over seven years before she was diegnosed.\nIt appears, from a careful consideration of all the evidence, that\nno one had considered the effect of the radium substances on the\nworkers in this comperatively small and commercially unimportent occu-\npation. There was much conflicting opinion in the minds of the\nfew experts and little settled knowledge. Some experts in 1920 con-\nsidered small Quantities of radium such as the painters ingested\nbeneficial to the human system. There is apparently no express state-\nment to the contrery.\nIt is tempting in the light of the knowledge of today and the\nexperience since 1920 to create the thought that the defendant must\nhave been negligent in some way. Today, industrial methods which the\ndefendent then employed would not be merely negligent but criminal.\nBut it should be carefully noted that this case must be decided on\nthe facts as they existed in the light of the knowledge of 1917 to\n1920. Were safety measures such as scientific ventilation, masks,\nperiodical medical examinations, abolition of brush pointing, and\nother now known precautions to be considered necessary as of 1920?\nActually, the defendent and its research bureau failed to enti-\ncipate what later research and scientific investigation proved to\nbe 8 fact; namely that the defendant's dial painters in 1920 were\nexposed to the gravest of dangers in their occupation.\nThe fact is that this experience was not brought home to science\nand medicine until 8 considerable number of cases such as that at\nbar had been considered and then the knowledge came slowly, only to\nbe accepted as fact several years after the first necrosis cases\nwere exposed.\nNotwithstanding the fact that the court is convinced that the\nplaintiff is not entitled to the relief he seeks on the ground of\nundisclosed fraud, the seriousness of the consequences of the de-\ncision makes it desirable to review briefly the New Jersey author-\nities defining the limits of the so-called doctrine of fraudulent\nconcealment.\nThe New Jersey statute of limitations which is applicable to\ntort actions provides:\n**** all actions hereafter accruing for in-\njuries to persons caused by the wrongful act,\nneglect or default of any - - . corporation or\ncorporation within this state, shall be commenc-\ned and instituted within two years next after\nthe cause of such action shall have accrued\nand not after.\" Rev. 1877, D. 594, as amend-\ned P.L. 1896, D. 119, 3 Comp. Stat. 3164, Sec. 3.\nThis is the genuine and orthodox statute which was taken from\n21 James I, C. 16. In an action at law, the plea of the statute,\nregardless of fraud on the pert of the tortfeasor, is always a ber\nto recovery. The New Jersey courts have held that the legislature\ndid not intend that there should be any exceptions to the statute\nother then those expressly enacted in other sections. Moreover,\nit appears that in the later English statute of 3 and 4 Wm. IV,\nC. 27, a clause in section 26 expressly saves the remedy under that\nstatute from the bar of conceeled fraud.\nIn Thorpe V. Corwin, 20 N. J. L. 311, 317, the court said;\n\"The statute of limitations makes the\nlapse of time a positive and le gal bar.\nWhen once it has begun to run against a\nperson under no legal disability, it pur-\nsues its course, uninterrupted by any sub-\nsequent events; and when the period pre-\nscribed by the statute has elspsed, the\nbar is complete, and its force can neither\nbe strengthened or impaired by anything\nthat has happened in the meantime. ***\nThe statute leaves nothing to presumption.\nTime alone settles the rights of the par-\nties by the giant force of the statute.\"\nThat is law today in New Jersey. Freeman V. Conover, 95 N. J. L.\n89; contra Crawford V. Winterbottom, 88 N. J. L. 588.\nIn our system of jurisprudence, equity, in the case of fraud,\nhas never barred relief to an injured party who has been in ignorance\nof the fraud. Prevest V. Gratz, 6 wheaton 481; Badger V. Badger,\n69 U.S. 87; Beiley V. Glover, 88 U. S. 342; Exploration Company V.\nUnited States, 247 U.S. 435; Howard V. West Jersey Railroad Company,\n102 N.J.E. 517.\nIn Bailey V. Glover, supra, the court said in giving its reasons\nfor the equitable doctrine:\n\"They (statutes of limitations) were en-\nacted to prevent frauds; to prevent parties\nfrom esserting rights after the lapse of\ntime had destroyed or impaired the evidence\nwhich would show that such rights never ex-\nisted, or had been satisfied, transferred,\nor extinguished, if they ever did exist,\nTO hold that by concealing a fraud, or by\ncommitting a fraud in a manner that it\nconcealed itself until such time as the\nparty committing the fraud could plead\nthe statute of limitations to protect it,\nis to make the law which was designed to\nprevent fraud the means by which it is\nmade successful and secure.\" Cited in Exploration\nCompany V. United States, 247 U.S. at D. 447.\nVice Chancellor Leaming in the West Jersey Railroad Company\ncase, supra, explained that the statute is for the benefit of the\nindividual and not to secure general objects of policy; so,\ntherefore, its benefits may be lost by conduct invoking the princi-\nples of estoppel in pais, as well as is familiarly known, by waiver.\nIn New Jersey, a person who has been wronged by fraud is re-\nlieved from the bar of the statute of limitations at law by a unique\nmethod. The plaintiff goes into the Court of Chancery and enjoins\nthe plea of the statute at law.\nThe phase of the doctrine with which this case is concerned,\n\"fraudulent concealment\" of B cause of action, is established on\na broad basis in this State.\nIt is not necessary that the acts or conduct constituting the\nconcealment of a cause of action be such as would be required to\nmake out fraud in a law court.\nThe test is defined as follows:\n\"Also, it should be noted that while the\ndoctrine of estoppel in pais rests upon the\nground of fraud, it is not essential that\nthe representations or conduct giving rise\nto its application should be fraudulent in\nthe strictly legal significance of that term,\nor with intent to mislead or deceive; the\ntest appears to be whether, in all the circum-\nstances of the case, conscience and duty of\nhonest dealing should deny one the right to\nrepudiate the consequences of his represen-\ntations or conduct; whether the author of a\nproximate cause may justly repudiate its natural\nand reasonably anticipated effect; fraud,\nin the sense of a court of equity, proper-\nly including all acts, omissions and con-\ncealments which involve a breach of legal\nor equitable duty, trust or confidence,\njustly reposed, and are injurious to another,\nor by which an undue and unconscientious ad-\nvantage is taken of another. 1 Story Eq. Jur.\nSec. 187. The authorities in this state to the\ngeneral effect stated are Lamb V. Martin,\n43 N.J. EQ. 34, 37; Martin V. State Insurance Co.\n44 N.J.Law 485, 487; Holoway V. Appelget,\n55 N.J.Eq. 583, 585; Clerk V. Augustine, 62\nN.J.Eq. 689, 695; Freeman V. Conover, 95\nN.J.Law 89, 93. See also, Magner V. Mutual\nLife Association, 44 N.Y. supp. 862; affirm-\ned, 162 N.Y. 657; Thompson V. The Phoenix\nInsurance co., 136 U.S. 287, 300.\"\nHoward V. West Jersey, etc., R.R.Co., 102\nN.J.E., 521 (supra)\nThat statement was recently approved by the Court of Errors\nand Appeals in Pertrick V. Groves, 115 N.J.E. 208. It suggests a\nmuch wider scope to the doctrine of \"fraudulent concealment\" than\nis generally accepted elsewhere. See Dewson, Fraudulent Concealment\nand the Statute of Limitations. 31 Mich. L.R. 591; Note, Fraudulent\nConcealment of a Right of Action end the Statute of Limitations,\n43 Harv. L.R. 471; Wood V. Carpenter, 101 U.S. 135.\nIn Lincoln V. Judd, 49 N.J.E. 387, the complainant shipped sheep\nto the defendants who sold them and remitted the proceeds of the\nsales, less their commissions and amounts purported to have been ex-\npended for freightage. The freightage deducted was grossly in excess\nof the actual charges but the complainents accepted the moneys as\ncorrect, relying on the defendant's honesty and did not discover the\nfraud presumably for over six years. The defendants demurred to the\nbill for an accounting on the grounds that the complainant had an ade-\nquate remedy at law and that more than six years had elapsed since the\ncause accrued. But the court overruled the demurrer, holding that\n\"in cases of fraud the time limited within which the action must be\nbrought will not commence to run until the discovery of the fraud, or\nuntil the complainant was in a situation where, by the exercise of\nreasonable diligence, he would have discovered the fraud.\"\nAnother case, Holloway V. Appelget, 55 N.J.E. 583, held that\nthe defense of the statute in an action at law would be enjoined in\nequity where a defendant sold certain municipal bonds after making\nan agreement with on attorney to pay him a percentage for collect-\ning the bonds and allowed the statute to run without informing the\nattorney of the fact. See comment, 12 Harv. L.R. 220.\nThe court held in Clark V. Augustine, 62 N.J.E. 589, that non-\nresident executors would be enjoined in equity from setting up the\nbar of the statute to 60) action at law on 8 claim against the\nestate when the executors gave notice that the claim had been 20-\njected and then remained out of the State until the period for in-\nstituting suit had expired. The court said in disposing of the\ncase at PP. 694 end 695:\n\"In large numbers of Cases where the defendent\nhas caused the plaintiff to subject his claim to\nthe statutory bar by procuring en injunction upon\nits prosecution or by fraudulently concealing its\nexistence, or by apparently waiving, by a promise\nor otherwise, the benefits of the statute as a de-\nfense, courts of equity have restrained the defend-\nant from pleading the statute on the ground that he\nhad estopped himself or that to permit him to inter-\npose such & plea would be to allow him to take ed-\nventage of his own wrong. Doughty Ve Doughty, a Stock.\n347 (1855) I Cowart V. Perrine, 6 C. E. Gr. 101 (1870) :\nQuick V. Corliss, supra; Freeholders Ve Veghte, 15 VF.\n509 (1883); Lamb V. Martin, 16 stew. Eq. 36 (1887);\nHolloway Ve Appelget, 10 Dick, Ch. Rep. 583 (1897) 19\nAll. & Ens. Encycl. L. (26 ed.) 243, 286, 288, and\n08868 cited.\"\nHoward Ve West Jersey Reflroad Company (supre), one of New\nJersey's leading cases, furnishes on excellent illustration of the\nbreadth of the doctrine. There, the plaintiff and the defendent\nhad been negotiating 8 sottlement of the plaintiff's claim for\ndamages for personal injuries. The defendent apparently admitted\nliability but the amount of damages was in question. The court\nappears to have been of the opinion that the plaintiff believed, by\nreason of the statements and conduct of the defendant, that the\namount of damages would be determined when the extent of the injuries\nhad been determined. He asked for $10,000 in settlement of the claim.\nThis was taken under advisement and the plaintiff awaited 8 reply.\nTwo days prior to the end of the statutory period, of which the\nplaintiff did not know, the defendent offered $2,500.00 in settlement.\nAfter discussing the feets of the case, the court se id:\n\"While It cannot be sold to be ordinarily any\npart of duty to apprise en adversary of his rights,\n10 must be recognized that one cannot Justly or\nequitably lull his adversary into a false sense\nof security end thereby cause his adversary to sub-\n-80-\nject his claim to the bar of the statute and\nthen be permitted to plead the very delay caused\nby his course of conduct as e. defense to the action\nwhen brought. This is recognized by our federal\nsupreme court as a rule of justice in the conclud-\ning sentence of the opinion of the court in Thomp\nson Vo The Phoenix Insurance Co., supre, and is\nmade the basis of decision in Magner Ve Mutual Life\nAssociation, supra.\n\"Any suggestion of want of authority of Mr.\nMacDonald and Mr. Turnbull to bind defendants by\ntheir conduct is untenable. Admittedly both were\nacting within the field of their employment. De-\nfendants cannot avail themselves of the fruits of\ntheir activities and at the same time escape 20->\nsponsibility for the methods employed by them.\nIn Patrick V. Groves, 115 N. J. E. 208, the defendant, who had\nbeen an attorney for the plaintiff, misappropriated his clients'\nmoney. In affirming the decree of the Court of Chancery enjoining\na plea of the statute to an action at law to recover the misappro-\npriated money, the Court of Errors and Appeals held that the\ndefendent's fraudulent conduct was responsible for the plaintiff's\ndelay in prosecuting their action and that he was estopped thereby\nto set up the statute. The Court approved the statement of the\ndoctrine of estoppel in pais in the West Jersey Reilrood case, supra.\nGenerally, ignorance of the existence of e cause of action is\nrequired on the part of the plaintiff. The look of knowledge of\nevidence or the identity of the defendent is not sufficient to invoke\nthe doctrine of fraudulent concealment. But in Moel V. Teffeau, 110\nN.J.E. 446, B \"hit and run\" driver or an automobile was restrained\nby the Court of Chancery from setting up the defense of the statute\nto nn action brought by the person whom he had injured. This de-\ncision was influenced by a statute of New Jersey making it the duty\nof persons involved in accidents to report such occurrences to proper\nauthorities.\nUnder the orthodox dostrine of fraudulent concealment, it is\nrequired that the plaintiff be in ignorance of the existence of the\ncause of setion and that the plaintiff must intend to keep the co-\nfendent in ignorence thereof. silence is not enough to make out\nfraudulent concealment.\nIt is accepted in New Jersey that the plaintiff must show\nreasonable diligence in bringing his suit after the estoppel has\nexpired. See cases infra. And it makes no difference if the con-\ncealment (or fraud) springs from the same not as the cause of action\nor is found in subsequent acts (or failure to act).\nThus, it WSB said in Holloway Vo Appelget, (supra, 55 N. J. E.,\nat D. 585):\n\"The cuestion is whether, in equity, Mr. Holloway\nin entitled to invoke the statute of limitations in\nbar of Appelget's action at law. In most of the cases\nthe bar has been set up in suits in equity instituted\nfor the purposes of obtaining relief in instances of\nfraud. There, however, is no reason why 8. court of\nequity should not, by the use of its injunctive power,\ndiserm a defendant from using the statute fraudulently\nin an action at law. In the case of Freeholders of\nSomereet V. Veghte, 15 Vr. 509, where 1t was held that\na fraudulent concealment of a cause of action was no\nanswer to the statute in sn action at law, it was ad-\nmitted that relief could be successfully mught in\nequity.\n\"It also appears that the equitable relief here\ninvoked has been granted mostly in cases where the act\nout of which the cause of action aroso was a fraudulent\nact, in its nature self-soncealing, such as emberzlements or\nthefts carried out by the falsification of accounts or\nvouchers. But it seems clear that a court of equity will\ninterfere, although the cause of action may not have arison\nout of 8 technically fraudulent act, if the defendant has\nemployed any means to mislead the plaintiff, or to hide from\nhim the fact that a cause of action has arisen.\"\nBut of course, there must be some sort of conduct or acts which\nare fraudulent or unconscionable. Mere negligence will not constitute\nequitable fraud even if the plaintiff has no knowledge of the osu se\nof action.\nThere are apparently no New Jersey cases holding to that effect\nbut the rule has no exceptions in my jurisdiction except in the 80->\ncalled inadvertent trespass cases such as Lewey V. Frick Coke Com-\npany, 31 Atl. (Pa.) 261.\nAs heretofore indicated there is no orthodox doctrine of \"fraud-\nulent concealment\" in New Jersey. That is due doubtless to the\nflourishing Court of Chansery, which is maintained apart from and\nindependently of the law courts. At any rate, the plaintiff will\nnot be relieved of the bar of the statute unless the defendant by\nhis equitable fraud has prevented him from commencing his cause of\naction. The test of equitable fraud is stated in Partrick V. Groves\nand the West Jersey Reilroad case, both supra.\nIn this case, the plaintiff contends that the testimony tends to\nshow:\n\"1. An omission which involves a breach of\nlegal duty.\n\"2. An omission which involves a breach of\nconfidence justly reposed (found in the feet\nthat 85 B metter of law the servant is entitled\nto assume that his mester has exercised due care\nto fulfill the obligations imposed upon him by\nlaw, Louteritz Ve Ice Consumers Co., supra: and\nfound also in the fact that 68 8 matter of equity\nit is a fraud to not as the defendent did wherever\nthere exists in fact B. relationship in which con-\nfidence is reposed on one side with 8 resulting\nsuperiority on the other side. Pomeroy NQ.\nJurisp., De 2039, es quoted at page 17 of the\ntrial brief.)\n\"3. An omission which involves a breach of\nlegal and equitable duties, and by which undue and\nunconscientious advantage is sought to be taken.\"\nThe plaintiff further contends that the ovidence requires B.\nfinding that the defendent is not entitled to use the statute of\nlimitations 88 a defense on the following grounds:\n\"1, Actual fraud, consisting of concedment\nof material facts when there was a duty to dis-\nclose them.\n\"2. Equitable estoppel, found in\n(a) Actual knowledge endmn-dis-\nclosure of material facts when a duty\nto disclose them existed.\n(b) Imputed knowledge of material\nfacts and non-disclosure under the\nsame circumstances.\n(e) Promimate causation within the\nmeaning of the rule stated in Partrick\nV. Groves and the other fill thorities,\nas set forth in the trial brief.\n\"3. Constructive fraud, found in\n(a) Actual knowledge and non-dis-\nclosure of material facts when a duty\nto disclose them existed.\n(b) Imputed knowledge of material facts\nand non-disclosure under the same circumstances.\n(e) Proximate causation within the meaning\nof the rule stated in Partrick V. Groves and the\nother authorities, as set forth in the trial brief.\"\nOn the contrary, the court is constreined to find that in 1920\nand up to 1924, in which time the two year period of limitations\nwould have elapsed, there was neither knowledge of an occupational\nhazard in the dial painting industry nor, in the light of the knowl-\nedge concerning redium, zenson for the defendant to believe or to have\nknown of the hazard. The defendant could not have been under a duty\nto disclose a hezerd which, so for as it or the world know, did not\nexist.\nIn 1920, it is a fast that dial inting was not known to be &\nhazardous occupation. It wes only shown to be sometime in 1924, or\nthereafter. To determine this case, the court must consider the\nknowledge concerning red ium existing at least prior to the end of\nthe normal period of limitations. All the learning of the scientific\nand medical world after that time, including the feet, which is now\nadmitted by everyone, that the occupation was highly dengerous is not\nrelevant, por so, to the issue.\nAnother way of stating this case in its final analysis is that\nin 1920 the head of the defendent's research bureau had fuiled to\ncarry its research to the conclusion which scientific and medi cal\nexperts later accepted, with some reluctance, after B number of the\ncases of redium necrosis had been carefully studied. Indeed it is\nfeir to say that until Dr. Martland established the cause, itwas\nonly by the process of elimination that suspicions pointed to radium\nas the trouble maker.\nIt can be said that this is & Case wherein both the plaintiff\nand defendant were ignorant of the existence of facts which may have\nconstituted e cause of action, the reason for it being the fault of\nneither. Medical and scientific knowledge had failed to discover\nthe dangerous propensities of the occupation. The statute of limite-\ntions and its exceptions were not conseived for this extraordinary\nsituation.\nNo one has even attempted to controvert the fact that Dr. Blum,\nDr. Hoffunn, Dr. Drinker and the defendant, itself, found reason to\nsuspect the danger in 1934; that Dr. Martland established it in 1985\nbut that several of the most eminent men in redium could not accept\nhis conclusion as true until later. There are no suggestions to the\ncontrary even by the plaintiff; but, at any rate, the court 1a com-\npelled to accept the opinions of the expert witnesses to that effect\nand the literature which fully corroborates those opinions and the\nfact that no reported cases existed prior to the one to which the\ndefends nt's attention was brought early in 1984.\nGoing back to 1980, there was no knowledge that an occupational\nhazard existed in dial painting. Whether or not it could have been\nestablished, if the radium experts had put themselves to the specific\ntask, is a matter of conjecture. Medical and scientific opinion con->\ncerning radium was going through changes, slow in process, which were\nthe result of an increasing number of experiments. There is nothing\non which a finding of negligence, in failing to discover the dangers\nin the industry, could be based.\nThere is another serious question which should be briefly con-\nsidered but the decision of the court makes it unnecessary to deter-\nmine it. It is that of whether or not the conduct of the docedent\nand the successors to her alleged cause of action constituted laches\nwhich would prevent the plaintiff from enjoining the defense of the\nstatute of limitations, even if the defendant was guilty of equitable\nfraud.\nIt should be remembered that the defendent was unsware of the\ndecedent's existence after 1920; that the decedent firmly believed\nduring 1927 that she was a victim of radium poisoning; that, in fact,\nshe had the common symptoms of the disease experienced by other cases\nwith whom she frequently associated; that she had had X-rays taloon\nin 1925 which Dr. Martland read in 1930 as showing typical aroas of\nradiation osteitis in her Jawbone, that after 1927 she attended\ndentists and a physician and related her fears to them but was re-\nassured by them; that she continued to suffer from the monifestations\nof the disease; that on October 15, 1930, Dr. Martland diagnosed\nher trouble as radium poisoning; that 8 claim was made against the\ndefendent on May 14, 1931, for the irst time; that the decedent\ndied on June 16, 1931; and that the action at law was commenced May\n17, 1932.\n\"It is a well settled rule in equity that in cases of fraud\nthe time limit within which the action must be brought will not\ncommence to run until the discovery of the fraud, or until the com-\nplainant was in a situation where, by the exercise of reasonable\ndiligence, he would have discovered the fraud.\" Lincoln V. Judd,\n49 N. J. E.. 387; Partrick Vo Groves, 115 N.J.E. 208.\nAccordingly, it might be contended that this rule should be\ninvoked against the decedent and her successors in view of the evi-\ndence. The action at law WEB not commenced until May 17, 1932.\nWhile Dr. Martland did not diagnose her case until October 15, 1930\nand her physician and dentist assured her that she did not suffer\nfrom the rudium affilition, she knew of her own experience that she\nwas suffering from the usual manifestations of the disease 88 she\nhad had the opportunity to observe. It was more than the suggestion\nof fear in her mind that troubled her. She suffered the progressive\neffects of the disease. Her associations with known victims with\nwhom she even visited the offices of the red ium experts when they\nwere being treated is significant in determining whether or not sh e\nwas using reasonable diligence in establishing her true condition\nwhich TOB probably diseoverable an early as 1925.\nIn view of the unanimity of opinion of all courts that the\nstatute will not be tolled unless the plaintiff has shown \"ressonable\ndiligence\" the question may well be reised here as to whether or not\nthe decedent was required to avail herself of such medical exemination\nas could have been made as soon 0.0 she entertained suspicions of\nher condition as early in 1927. Under the reasoning herein it\nseems unnecessary to decide this question, however.\nThe plaintiff contends that the decedent 416 voice her complaints\nand suspicions to at least one doctor and dentist, as early as 1927 or\n1928, but was assured by them that they were unfounded. This in\nitself lends force to the argument of the defendent, that, in fair-\nness and equity, it could not be charged in 1917 end 1920, with the\nanticipation of the dangers and hezerds attendant upon its industrial\nuse of radium in the infinitesimal quantities in which it was in-\ncorporated in the luminous paint. In 1925 and 1926, nation-wide\npublicity was given to the discovery of radium poisoning as the\ncause of the ailment from which several of these dial pe inters\nsuffered. In the face of this and the direct statement by the de-\ncodent that she suspected that she, too, was 8 victim, her own doctor\nand dentist in 1927 were unable to diagnose her trouble. Under such\ncircumstances can her employer be charged with the msponsibility\nof anticipating such dangers in the light of the learning of the\nyears 1917 to 1980?\nNaturally there is no question 88 to where the sympathies of\nany human being would lie in 8 case of this sort. But 0 court has\nno power to adjust the law which has been enacted to meet the needs\nof a time when no such case as this could be foreseen. This is an\nextraordinary case even today. The statute of limitations was en-\nacted for the purpose of protecting the public from fraud. Its\nends were desirable and necessary and in the infinite variety of\ncases that come before the courts that is still true. The responsi-\nbility in this case can only be laid to the tremendous progress made\nin science in the last four decades, for radium was unknown prior to\n1898. The development of the law to meet such contingencies mus of\nnecessity lag behind their discovery. Only forward looking, in-\ntelligent legislation can protect future situations such as the one\nhere presented.\nThe bill must be dismissed.\nIt is intended that the foregoing discussion of facts and law\nshall be in satisfaction of the requirements of Equity Rule 70-1/2\nconcerning findings of fact and conclusions of law.\n*****\nUNITED STATES DISTRICT COURT\nDISTRICT OF NEW JERSEY\nVINCENT P. LA PORTE, etc.\nPlaintiff,\nV.\nUNITED STATES RADIUM CORPORA-\nTION, a corporation of the\nState of Delaware,\nDefendant.\nMEMORANDUM\nFORMAN,\nDistrict Judge.\nFiled Dec. 17, 1935."
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