
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2242                             CAMBRIDGE PLATING CO., INC.,                                Plaintiff, Appellant,                                          v.                                     NAPCO, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Coffin, Senior Circuit Judge,                                    ____________________                             and Boudin, Circuit Judge.                                          _____________                                 ____________________            Thomas K. Christo with whom David  B. Chaffin, Joseph M.  Kaigler,            _________________           _________________  __________________        and Hare & Chaffin were on brief for appellant.            ______________            Richard  L. Burpee with whom William A. McCormack was on brief for            __________________           ____________________        appellee.                                 ____________________                                    April 22, 1993                                 ____________________               COFFIN, Senior  Circuit Judge.  Plaintiff  Cambridge Plating                       _____________________          Company  filed  this  lawsuit  against  defendant  Napco  seeking          damages  for  a  defective  wastewater  treatment  system.    The          district court granted summary  judgment for Napco, concluding as          a  matter of  law that  the statutes  of limitations  had run  on          plaintiff's claims.  On appeal, Cambridge Plating argues that the          court  should have  let the  jury decide  whether Massachusetts's          "discovery" rule  suspended the running of  the limitations clock          long  enough to  preserve  its claims.    Because we  agree  with          plaintiff  that material  issues of fact  remain, we  reverse the          summary judgment.                                          I.          A. Factual Background             __________________               Cambridge   Plating  is  an   electroplating  business  that          discharges wastewater containing  various metal contaminants into          municipal  sewers.   In  an effort  to meet  strict environmental          regulations  governing such discharges,  the company commissioned          the design and installation of a wastewater treatment system from          defendant  Napco.  The contract  price for the  system was nearly          $400,000.    Cambridge   Plating  additionally  needed   to  make          substantial changes  to its facility to  accommodate the enormous          and  complex  array of  pipes,  tanks,  valves, mixers,  sensors,          recorders  and other apparatus,  pushing the  total cost  for the          project to $2.8 million.               The system began running on October 30, 1984, but it was not          then  fully operational,  and  Napco continued  installation  and                                         -2-          debugging for  another year.  In October  1985, Cambridge Plating          began to experience unsatisfactory results; testing revealed that          contaminant  levels   in  the  wastewater   discharges  sometimes          exceeded  regulatory  limits.     Cambridge  Plating's   managers          believed the problems stemmed from errors by the system operators          or  errors in  wastewater sampling.   This  belief was  fueled by          Napco representatives who, when contacted by Cambridge Plating on          a number of occasions between early 1986 and 1988, suggested ways          that Cambridge Plating could change  its operation of the system.          Napco refused further visits to Cambridge Plating to service  the          system unless it was paid $1,000 per day.               Cambridge  Plating   took  several  steps   to  resolve  the          perceived  operational or  sampling  problems.   It replaced  the          system operators and implemented  the changes suggested by Napco.          In late  1986, the company  asked a wastewater  treatment expert,          Patrick Hunt, to evaluate the system  and the company's operation          of  it.  Although Hunt found  some minor problems with the system          itself, most of his  recommendations were operational.  Cambridge          Plating  adopted  his  suggestions,  but  the  company  continued          periodicaly to exceed lawful contaminant levels.               On  December  29,  1988, the  Massachusetts  Water Resources          Authority (MWRA), the agency responsible for effluent regulation,          assessed  a   penalty  of  $682,250  on   Cambridge  Plating  for          violations during  1986-88.  In February  1989, Cambridge Plating          commissioned  another  expert,  Peter  Moleux,  to  evaluate  the          system.   Moleux's  lengthy  inspection, which  included a  close                                         -3-          comparison  of Napco's  written materials with  the system  as it          actually existed, revealed design flaws, failure to install parts          specified in the  plans, and  substandard engineering  practices.          Most significantly,  Moleux discovered  that Napco had  failed to          install  an important component,  a static  mixer, inside  a pipe          where system schematics  provided by Napco  indicated erroneously          the  device  had  been placed.    Omission  of  the static  mixer          rendered the  system incapable of adequately  cleaning 80 percent          of the wastewater.               After  Moleux's  evaluation, Cambridge  Plating  installed a          static  mixer  at the  point called  for by  Napco's plans.   The          system  thereafter worked  properly,  enabling Cambridge  Plating          consistently to comply with the effluent limitations.               B. Procedural Background                  _____________________               Cambridge Plating  filed this action in  June 1990, alleging          causes  of  action for  breach  of  contract, negligence,  fraud,          negligent  misrepresentation, and violation  of the Massachusetts          unfair  business practices  act, Mass.  Gen. Laws  Ann. ch.  93A.          Napco moved  for summary judgment, arguing that  all of Cambridge          Plating's  claims  were  barred  by the  applicable  statutes  of          limitation.  The district court agreed with Napco.               The court concluded that Cambridge Plating's purchase of the          wastewater treatment system  was a  sale of goods,  and that  its          contract  claim thus  was governed  by the  four-year limitations          period under the  Uniform Commercial Code,  Mass. Gen. Laws  Ann.          ch. 106,   2-725, rather than by the general six-year contractual                                         -4-          limitations period,  Mass. Gen. Laws Ann.  ch. 260,   2.   All of          Cambridge Plating's causes of  action, therefore, were subject to          either  three-  or  four-year  statutes of  limitation.1    These          claims  were  time-barred,  the  court  determined, because  they          accrued in late 1985,  some four and one-half years  before suit,          when the company  learned that  the system was  failing to  bring          effluent  discharges within  legal  limits.   The court  rejected          plaintiff's  argument that  the limitations  periods were  tolled          until Moleux's  evaluation, when Cambridge Plating  first learned          the  cause of the system's  problems.  The  court concluded that,          with  reasonable   diligence,   Cambridge  Plating   could   have          discovered the defects once the system started malfunctioning.               On   appeal,  Cambridge   Plating  argues  that   the  court          misconstrued the contract and the discovery rule, which serves to          toll certain  hard-to-discern claims, and improperly  usurped the          jury's role when it decided as a matter of law that  the rule did          not  preserve the company's claims.   Our review  of the district          court's grant of  summary judgment  is plenary, and  we read  the          record in the light most amicable to the party contesting summary          judgment.  See,  e.g., Pagano v.  Frank, 983 F.2d  343, 347  (1st                     ___   ____  ______     _____          Cir. 1993).                                         II.                                        ____________________               1  Tort  actions are  subject  to  a three-year  limitations          period, Mass.  Gen. Laws  Ann.  ch. 260,    2A,  and a  four-year          statute  applies to  consumer  protection actions  brought  under          Chapter 93A, Mass. Gen. Laws Ann. ch. 260,   5A.                                         -5-               Cambridge Plating contends that  the district court erred in          ruling as a matter of law that the contract with Napco was a sale          of  goods contract  within  the  scope  of  the  UCC.    Although          determining the type of contract at issue typically may be a jury          function, see United States v. City  of Twin Falls, 806 F.2d 862,                    ___ _____________    ___________________          870 (9th Cir. 1986),  we believe the facts here  are sufficiently          clear and undisputed  that the  district court  was permitted  to          make its finding as a matter of law.  Id.                                                ___               Cambridge  Plating  asserts  that the  UCC  is  inapplicable          because  the  equipment it  purchased  does not  meet  the Code's          definition of goods.  Under the UCC,  "goods" are defined as "all          things . .  . which are movable at the  time of identification to          the contract for sale . . . ."  See Mass. Gen. Laws Ann. ch. 106,                                          ___             2-105.   The  company  emphasizes  the  immense  size  of  the          wastewater  treatment   system  and  its  integration   into  the          electroplating  facility in  an effort  to equate  this situation          with White v. Peabody  Construction Co., 386 Mass. 121,  132, 434               _____    _________________________          N.E.2d 1015 (1982), where the  court ruled that the UCC  does not          apply to "the sale of structures attached to realty."               But this comparison  is flawed.   The claims  in White  were                                                                _____          based on contracts calling for "[t]he erection of  buildings" and          for the sale  of a completed building  -- "not contracts for  the          sale of bricks or  window frames or  caulking material."  Id.  at                                                                    ___          131, 133.  In this case, the proposal specified the components of          the  system as  the  primary subject  of  the sale  and,  indeed,          specifically described the contract as one "for goods."  See App.                                                                   ___                                         -6-          at  113.  The proposal separately listed eighty-eight items to be          provided  by  Napco,  eighty-two  of  which  involved  pieces  of          equipment.   At the time of identification to the contract, these          were movable and  therefore goods  within the scope  of the  UCC.          Accord Twin  Falls,  806 F.2d  at 871  (components of  wastewater          ______ ___________          treatment  system   are  movable  goods).    It  was  only  after          installation  into  plaintiff's  building that  the  items became          merged with the  facility and  hence unmovable --  to borrow  the          district  court's analogy, like cans  of paint sold  as goods and          then applied to a wall.2               That the  contract involved the purchase  of engineering and          installation services, in  addition to a sale of  goods, is of no          consequence.   In our view,  Massachusetts law is consistent with          the general trend to view such mixed contracts as governed by the          UCC.  See Twin  Falls, 806 F.2d at 871.   In White, 386  Mass. at                ___ ___________                        _____          131-32, the Supreme Judicial  Court ruled that "[c]ontracts whose          predominant  factor,  thrust,  or  purpose is  the  rendition  of          services"  are  outside  the  scope  of  the  UCC.    It  follows          inexorably that, if  the "rendition  of services" is  not at  the          heart of a mixed contract, the UCC does govern.  See USM Corp. v.                                                           ___ _________                                        ____________________               2 Plaintiff also  cites in support of its  position Chestnut                                                                   ________          Hill  Dev. Corp. v. Otis Elevator Co.,  653 F. Supp. 927, 932 (D.          ________________    _________________          Mass.  1987), which  held that  structures "attached  to realty,"          such  as  the elevator  system at  issue  there, are  not "goods"          within  the meaning  of the  UCC.   Under  the UCC,  however, the          inquiry  centers  on the  nature of  the  goods "at  the  time of          identification  to the contract," Mass. Gen. Laws Ann. ch. 106,            2-105.  It is beyond debate that the contract here listed movable          items.  See  Burnham v. Mark IV Homes, Inc.,  387 Mass. 575, 581,                  ___  _______    ___________________          441 N.E.2d 1027 (1982) (modular homes are "goods" within coverage          of UCC).                                         -7-          Arthur  D.  Little Systems,  Inc., 28  Mass.  App. 108,  119, 546          _________________________________          N.E.2d 888  (1989) (contract  for computer system  involving both          sale of goods and delivery of services governed by UCC).               The  undisputed  facts  demonstrate  that  the deal  between          Cambridge  Plating and Napco was  first, and foremost,  a sale of          goods.    Most of  the purchase  price  was for  the specifically          listed  items of equipment.   Only $68,970 of  the total contract          price  of   $398,200  was   for  installation,3   and  purchasing          installation  from  Napco  was  even  optional.    See  generally                                                             ___  _________          Chestnut Hill Dev.  Corp. v. Otis Elevator Co., 653 F. Supp. 927,          _________________________    _________________          932  (D.  Mass.   1987)  (a  contract  to   supply  "hundreds  of          components"  is not "one whose primary thrust is the rendition of          services").  Because  the contract was so heavily weighted toward          goods, it must fall within the scope of the UCC.               The district court correctly  applied the UCC to plaintiff's          contract claim.   We thus  move on  to consider whether  this and          Cambridge Plating's other claims were timely brought.                                         III.               Although  the  Massachusetts legislature  has  set statutory          limitations periods for various causes of action, see supra at 4-                                                            ___ _____          5  &  n.1, determining  when claims  accrue  "`has long  been the          product  of judicial  interpretation,'"  Hoult v.  Hoult, 792  F.                                                   _____     _____          Supp. 143, 144 (D.  Mass. 1992) (quoting Franklin v.  Albert, 381                                                   ________     ______                                        ____________________               3  The  cost of  engineering  services  to assist  Cambridge          Plating with preparing its  local industrial discharge permit and          meeting with  local officials -- a single item among a list of 83          -- also was included in the equipment subtotal.                                         -8-          Mass. 611, 617, 411 N.E.2d 458 (1980)).  Caselaw establishes that          the  general  rule for  negligence claims  is  that the  cause of          action  accrues at the  time of injury.   Riley  v. Presnell, 409                                                    _____     ________          Mass. 239,  243, 565 N.E.2d  780 (1991).   Similarly, a cause  of          action for breach of contract usually  accrues at the time of the          breach,  International Mobiles Corp. v. Corroon & Black/Fairfield                   ___________________________    _________________________          & Ellis, Inc., 29 Mass. App. 215, 221, 560 N.E.2d 122 (1990), and          _____________          accrual  of  a chapter  93A claim  typically  occurs at  the time          injury  results from the assertedly unfair or deceptive acts.  29          Mass. App. at 220-21.               These designated  times  are subject  to  some  flexibility,          however,  because Massachusetts  courts  have recognized  that it          would  be  unfair to  begin  running the  statute  of limitations          before a plaintiff is  put on notice that  she has a claim.   See                                                                        ___          Bowen v.  Eli Lilly  & Co.,  408 Mass. 204,  205, 557  N.E.2d 739          _____     ________________          (1990); Anthony's Pier Four, Inc. v. Crandall Dry Dock Engineers,                  _________________________    ____________________________          Inc.,  396 Mass. 818, 824,  489 N.E.2d 172  (1986); Franklin, 381          ____                                                ________          Mass at 619.   The judicially created tool for  ensuring fairness          is the  "discovery rule," which provides that,  regardless of the          actual  time of  breach or injury,  "a cause  of action  does not          accrue  until a  plaintiff discovers,  or reasonably  should have          discovered, that she  may have been  injured as  a result of  the          defendant's conduct."   Hoult,  792 F. Supp.  at 144.   See  also                                  _____                           ___  ____          Riley,  409 Mass. at 244; Bowen, 408 Mass. at 205-06; Hendrickson          _____                     _____                       ___________          v. Sears,  365  Mass. 83,  83-84,  310 N.E.2d  131 (1974).    The             _____          delayed  knowledge may be either the fact of injury, such as when                                         -9-          an item is not used and thus not discovered to be defective for a          substantial time  after its  purchase, see, e.g.,  Anthony's Pier                                                 ___  ____   ______________          Four, Inc., 396 Mass. at 825-26,4  or the cause of the harm, such          __________          as when an individual  with a physical illness does  not discover          the illness's  link to  particular medical treatment  until years          after becoming sick, see, e.g., Bowen, 408 Mass. at 207.5                               ___  ____  _____               Not all  contractual causes  of action in  Massachusetts are          governed  by  the  judicially  crafted  accrual  rules.    Claims          alleging breach  of a contract for the  sale of goods instead are          subject to the detailed provisions of the UCC.  Under   2-275(2),          a  cause of  action  for breach  of  a sales  contract  generally          accrues  when the  breach  occurs, "regardless  of the  aggrieved          party's  lack  of  knowledge of  the  breach,"  and  a breach  of          warranty occurs when tender of delivery is made.  Mass. Gen. Laws          Ann.  ch. 106,     2-275(2).   When  a seller  gives  an explicit          warranty of future performance, however,                                        ____________________               4  Anthony's  Pier Four  involved  an action  filed  in 1980                  ____________________          against  the designers  of a  ship mooring  system that  had been          completed in 1968.  The plaintiff claimed that it was  unaware of          the system's design deficiencies  until it actually failed during          a storm  in 1978.   The  court held that  the lawsuit  was timely          because  "[t]he plaintiff  discovered  the breach  when the  boat          capsized in 1978  and there  is no  showing that  it should  have          known of the breach earlier." 396 Mass. at 826.               5 The plaintiff  in Bowen had  suffered a malignant  vaginal                                   _____          tumor requiring surgery in 1969 but did not file suit blaming the          cancer on a prescription drug manufactured by defendant Eli Lilly          &  Co. until 1983.   The  court applied  the discovery  rule, but          nevertheless determined that the plaintiff was on notice that the          defendant may have caused  her harm more than three  years before          filing her action.  408 Mass. at 210.                                          -10-               and discovery of the breach must await the time of such               performance the cause of action accrues when the breach               is or should have been discovered.          Id.  Thus, like the tort and contract causes of action subject to          ___          the  judicial discovery rule, a  cause of action  for breach of a          warranty of future performance is tolled until  the plaintiff has          adequate notice of the claim.               The district court found that the  transaction at issue here          was  a sale  of goods,  and that  the UCC  therefore governs  the          contract claim.   It further determined that  Napco expressly had          warranted  the  future performance  of  the  wastewater treatment          system, and that, consequently, the statutory discovery provision          applies.   Because  we  have concluded  that  the district  court          correctly ruled as a  matter of law that the parties entered into          a sale  of goods, and there  is no challenge to  its finding that          Napco  gave  an  explicit  warranty of  future  performance,  the          timeliness  of  all  of  plaintiff's  claims  is  linked  to  the          discovery rule.                                             IV.               Our  analysis of  the discovery rule's  impact in  this case          must  begin with the parties'  conflicting views on  how the rule          operates.   Defendant Napco asserts that the rule applies only to          "inherently unknowable"  causes of  action and that  the question          before us is whether Cambridge Plating's claims were discoverable          through  reasonably  diligent  efforts.6   If  Cambridge  Plating                                        ____________________               6  Although  the  dictionary  definition  suggests  that  an          "inherently" unknowable  claim is  one that would  be permanently                                                                ___________          undiscoverable, see  The Random  House Dictionary of  the English                          ___  ____________________________________________                                         -11-          could  have  discovered  its claims  earlier  through  reasonable          _____          diligence,  Napco  maintains,  then   they  were  not  inherently                                                                 __________          unknowable and the discovery rule would not apply.               Cambridge Plating  counters  that the  applicability of  the          discovery rule does not depend on whether it was possible for the          company  to  discover  Napco's  responsibility  for  the  defects          earlier  by pursuing some other reasonable course of action.  The          inquiry, it asserts, must focus on the reasonableness of what the          company actually did.  If the company acted diligently, but still          reasonably  failed to learn of its cause of action, the discovery          rule would continue to delay the limitations clock.               The  district  court  adopted  Napco's  view,  finding  that          Cambridge Plating could have discovered the system's defects once          the  company  learned  that  the water  treatment  equipment  was          failing to  bring effluent discharges  within legal limits.   The          court pointed to expert Moleux's affidavit  as evidence that "the          defects were manifestly knowable to someone with an appropriately                                  ________          trained eye," Opinion at 10  (emphasis in original).  It  did not          matter, the court ruled,  whether Cambridge Plating had exercised          reasonable  diligence in  hiring the  first expert,  who did  not          discover  the   defects:  "[w]hether   a  defect  is   inherently          unknowable turns  not upon  an inquiry  into whether the  injured                                        ____________________          Language (2d  ed. 1987)  at  982, the  phrase  has been  used  to          ________          describe  a cause of action  that was incapable  of detection for          some  prolonged  period  of  time   even  with  the  exercise  of          reasonable diligence.  See,  e.g., Tagliente v. Himmer,  949 F.2d                                 ___   ____  _________    ______          1,  5 (1st  Cir. 1991);  White v.  Peabody Construction  Co., 386                                   _____     _________________________          Mass. 121, 129  (1982); International Mobiles Corp. v.  Corroon &                                  ___________________________     _________          Black/Fairfield & Ellis, Inc., 29 Mass. App. 215, 222 (1990).           _____________________________                                         -12-          party did in fact exercise reasonable diligence, but instead upon                    _______          an inquiry  into whether reasonable  diligence could have  led to                                                         _____          discovery  of the defects," id. at 11 n.5 (emphasis in original).                                      ___          This implies  that at least  two courses of  action would meet  a          standard  of reasonable diligence  -- one pursued  by the injured          party and another that could have been pursued.               We are  persuaded that Cambridge Plating's  statement of the          discovery   rule   is   the  one   consistent   with   prevailing          Massachusetts law.   The rule is designed  to protect plaintiffs,          to assure that "`a plaintiff [] be put on notice before his claim          is barred,'" Anthony's Pier Four, Inc., 396 Mass. at 824 (quoting                       _________________________          Franklin, 381 Mass. at 619).  This protection would be frustrated          ________          if  a  plaintiff who  remained unaware  of  his claim  even after          conducting reasonable inquiry was  time-barred from pursuing  it.          Fairness  dictates   that  the  discovery  rule   not  be  deemed          inapplicable simply  because reasonable actions other  than those          taken by the plaintiff  could have uncovered the injury  or cause                                  _____          of harm.  See  generally Franklin, 381 Mass. at  618 (limitations                    ___  _________ ________          statutes are intended, inter alia, to "`stimulate [plaintiffs] to                                 _____ ____          activity'" and  "punish[]  negligent  delay")  (quoting  Wood  v.                                                                   ____          Carpenter, 101 U.S. 135, 139 (1879)).          _________               Indeed, the contrary conclusion would require something more          than  reasonableness  on the  part  of  the plaintiff;  Cambridge          Plating complains  that nothing  less than omniscience  would do.          Whenever more than  one reasonable  option for  pursuing a  claim          existed -- when, for example, two or three qualified experts were                                         -13-          available to  investigate a non-performing piece  of equipment --          the  plaintiff would  be  penalized if  the  first expert  chosen          reasonably failed to discover a problem the second expert managed          to  detect.  That the  plaintiff had been  diligent in hiring the          first expert would be  irrelevant, even though the very  point of          the rule was to protect plaintiffs whose reasonable efforts would          fail  to put  them on notice  of their claims.   This, certainly,          cannot be the intent of the Massachusetts courts.               The   formulation  that   we  believe   reflects  prevailing          Massachusetts law was particularly well articulated in Bowen, one                                                                 _____          of the Supreme Judicial Court's more recent discovery rule cases:               This  rule  prescribes  as  crucial  the  date  when  a               plaintiff  discovers,  or  any earlier  date  when  she               should  reasonably have  discovered, that she  has been               harmed  or  may have  been  harmed  by the  defendant's               conduct.               . . .               [T]he  statute of  limitations  starts to  run when  an               event  or events  have  occurred that  were  reasonably               likely to put the plaintiff on  notice that someone may               have caused her injury.          408  Mass. at 205-206, 207.  See  also, e.g., Riley, 409 Mass. at                                       ___  ____  ____  _____          243; Franklin, 381 Mass. at  619.  Bowen makes it clear  that the               ________                      _____          steps taken by a plaintiff to discover her cause of action play a          role  in the decision whether  to apply the  discovery rule: "the          decision  whether  any  [injury]  should  reasonably   have  been          uncovered  ha[s] to be made  in light of  what reasonable inquiry          would have disclosed."  Id. at 206 (citing Friedman, 371 Mass. at                                  ___                ________          485-86).  Accrual of  the plaintiff's cause of action  is tested,          therefore, "by  what a reasonable  person in  her position  would                                         -14-          have known or  on inquiry  would have discovered  at the  various          relevant times," Bowen, 408 Mass. at 210.                           _____               Thus, if Cambridge Plating acted  reasonably diligently when          it  hired the first expert,  the fact that  that expert failed to          discover the  system's  defects must  be sufficient  to toll  the          statute  of limitations.7    This is  so  because, if  reasonable          inquiry  failed to disclose the  problem, it cannot  be said that          the problem  "should reasonably have been  uncovered," Bowen, 408                                                                 _____          Mass. at 206.8               We recognize that the district  court's interpretation finds          literal  support  in the  language of  a  number of  cases, which          describe  the discovery  rule as  applicable only  to "inherently          unknowable"  claims or refer to the time when a plaintiff "could"          have known of his claim.   See, e.g., Melrose Hous. Auth.  v. New                                     ___  ____  ___________________     ___          Hampshire  Ins. Co.,  402 Mass.  27, 34,  520 N.E.2d  493 (1988);          ___________________          Anthony's  Pier Four, Inc., 396  Mass. at 825-26  n.9; White, 386          __________________________                             _____          Mass.  at 129-30; International  Mobiles Corp., 29  Mass. App. at                            ____________________________                                        ____________________               7  We presume  here that  the expert  performed competently.          See infra p.17.          ___ _____               8  The district  court's  decision may  reflect an  implicit          finding  that the  first  expert's efforts  were inadequate.   If          Moleux's  exhaustive study of the  system would have  met but not          surpassed the  threshold standard of reasonableness  even if done          two years  earlier, then  Hunt's apparently less  thorough review          would not have been sufficient inquiry under  the discovery rule.          On  the other  hand,  if Cambridge  Plating exercised  reasonable          diligence in hiring Hunt, and his performance was competent, then          Moleux's efforts beyond the  reasonableness threshold should  not          furnish a basis for  denying discovery rule protection.   On this          record, we do not  think that the district court  could determine          as a matter  of law  that the first  evaluation was  incompetent.          See Section V infra.               ___           _____                                         -15-          222; Melrose Hous. Auth. v. New Hampshire Ins. Co., 24 Mass. App.               ___________________    ______________________          207, 212,  507 N.E.2d  787 (1987).   But  this support erodes  on          analysis.               The two cases cited  by the district court as  precedent for          the standard it applied also refer to the "reasonably should have                                                                ______          known"  formulation, see White, 386  Mass. at 129  & 130; Melrose                               ___ _____                            _______          Hous. Auth., 24  Mass. App. at  212, as do  other cases cited  by          ___________          Napco,  see, e.g., Anthony's Pier Four, Inc., 396 Mass. at 825-26                  ___  ____  _________________________          &  n.9;  International  Mobiles, 29  Mass.  App.  at  218 &  222.                   ______________________          Moreover,  none  of  these  cases  involved  a  plaintiff  in the          position  Cambridge Plating claims to  be in here,  i.e., one who          acted diligently, yet still failed to learn of a cause of action.               These  cases, instead, uniformly involve plaintiffs who were          not diligent,  and  that circumstance,  we believe,  has led  the          ___          courts  to describe the rule  imprecisely.  When  a plaintiff has          made no reasonable  efforts to  discover the harm  or its  cause,          considering whether a plaintiff reasonably should have discovered                                                     ______          his  claim will produce the same result as considering whether he          reasonably could have  discovered it.   For example,  if a  court                     _____          found that  a claim  could not  be discovered  through reasonable                                     ___          diligence,  it  would be  precluding as  well  a finding  that he          reasonably  should have  discovered it.   See,  e.g.,  White, 386                                                    ___   ____   _____          Mass.  at 130  (in cases  cited, "the  nature of  the defendant's          wrong was such that  the plaintiff did not discover and could not          reasonably  have discovered that he or she had been injured until          [a later time]").                                         -16-               Similarly,  a court  might find that,  if the  plaintiff had          been  diligent, she could have  discovered her claim.   From this                              _____          conclusion, lacking  contrary information, it also  is logical to          presume  that the  plaintiff  should have  discovered her  claim.                                        ______          Having  failed to act, the  plaintiff has no  basis for disputing          the  court's sensible  presumption that reasonable  actions would          have produced results.   See,  e.g., Friedman  v. Jablonski,  371                                   ___   ____  ________     _________          Mass. 482, 486, 358 N.E.2d 994  (1976); Melrose, 24 Mass. App. at                                                  _______          212-215; Graveline  v. BayBank  Valley Trust  Co., 19  Mass. App.                   _________     __________________________          253,  254-55,  473  N.E.2d  700  (1985).    "Could"  and "should"          effectively are interchangeable in  this context, and the courts'          particular usage is of no significance.                 Only when a plaintiff  has done what he  is supposed to  do,          and still  comes  up empty,  is  a court  faced with  a  possible          disjunction between  what he theoretically could have known if he                                                     _____          had chosen a different  reasonable path, and what he  should have                                                                ______          known based on the reasonable inquiry he did make.   Because none          of  the cases  cited to  us present  that situation,  and because          construing the rule as the district court applied it  effectively          would  take away the protection the discovery rule is designed to          provide, we  are confident that  Cambridge Plating's view  of the          discovery rule is correct.               We think it worth emphasizing  that, so construed, the  rule          does   not  permit  a  plaintiff  to  buy  time  by  engaging  an          incompetent "expert."  Hiring an individual  who is poorly suited          to  investigate the type of  injury suffered by  the plaintiff is                                         -17-          unlikely to be deemed  "reasonable" inquiry sufficient to suspend          the  limitations  period.     Moreover,  even  if  the  plaintiff          reasonably hires a professional he believes to be  competent, but          who fails to  discover a  defect that a  qualified expert  easily          should  have found, the plaintiff's only recourse is likely to be          against the deficient professional.  The discovery rule would not          save the overlooked claim  because reasonable inquiry should have                                                                ______          put the  plaintiff on notice of  it.  See Friedman,  371 Mass. at                                                ___ ________          486 & n.4  (a competent lawyer  would have done title  search and          should have discovered defect).                The discovery rule's protection is limited in another way as          well.  The  rule does not suspend the  running of the limitations          period  pending confirmation  of  the plaintiff's  injury or  its          cause, but simply  stops the  clock until the  occurrence of  "an          event or  events .  . .  that were reasonably  likely to  put the          plaintiff on notice  that someone  may have  caused her  injury,"                                             ___          Bowen, 408 Mass. at 207 (emphasis added).  Thus,  a plaintiff who          _____          in the 1970s was told that her injury may have been caused by her          mother's ingestion of DES was unable to invoke the discovery rule          to save  the lawsuit she filed a decade later, when she felt more          certain of the causal connection.  See id. at 209-10.                                             ___ ___               Applying  these principles  to the  case at  hand, Cambridge          Plating's  ability to invoke the  discovery rule --  and thus the          timeliness of its claims -- turns on when the company should have          known that Napco  might be  responsible for  the water  treatment          system's failing  performance.   In  Section  V, we  discuss  our                                         -18-          conclusion  that this question must  be answered by  the trier of          fact.    See  Riley, 409  Mass.  at  247-48  (jury should  decide                   ___  _____          disputed issues relating to statute of limitations).                                          V.               To survive Napco's motion for summary judgment  based on the          statute  of limitations,  Cambridge Plating  must show  a genuine          issue of material fact as to whether it knew or should have known          of  its claims  before June  22, 1987.9   See  Fidler v.  Eastman                                                    ___  ______     _______          Kodak Co., 714  F.2d 192, 197-98  (1st Cir. 1983); Hoult,  792 F.          _________                                          _____          Supp. at 145; Riley, 409 Mass. at 244, 247.  No one suggests that                        _____          Cambridge  Plating  in  fact  knew the  source  of  the  system's          problems before  early 1989, and  the issue therefore  is whether          there is a factual  dispute over whether the company  should have          realized Napco's possible responsibility before that date.               A  careful analysis of the  record persuades us  that such a          dispute  exists.  In finding that Cambridge Plating was on notice          of its claims in late 1985, the district court  relied heavily on          the company's having  learned at  that time that  the system  was          failing to  bring effluent discharges down  to acceptable levels.          The  court  felt  that   Cambridge  Plating's  knowledge  of  the          deficiencies meant that it knew that the performance warranty was          being breached.  Additionally,  consistent with its understanding                                        ____________________               9  The lawsuit was filed on June  22, 1990.  As discussed in          Section III,  supra, certain of the claims have four-year, rather                        _____          than three-year,  statutes of limitation, and  those claims would          be  timely even  if  Cambridge Plating  learned  of them  a  year          earlier, in  1986.  For the sake  of simplicity, because it makes          no  difference in  the result,  we discuss the  claims as  if all          needed to be filed within three years of their discovery.                                          -19-          of the discovery rule, see Section IV supra, the court ruled that                                 ___            _____          Cambridge Plating was then on notice of the other claims as well.               The system's inadequate performance  in late 1985 strikes us          as  far less portentous.  Beyond doubt, when the system first was          installed,  and throughout  Napco's debugging  process, Cambridge          Plating had no reason to suspect the serious flaws.   Omission of          the  static  mixer  was virtually  impossible  for  anyone but  a          wastewater treatment expert to  discover, both because the device          was  supposed to  be located  inside a  pipe and  because Napco's                                        ______          diagrams  indicated that  it had been  installed.   Moreover, any          deficiencies presumably  were to be resolved  once Napco finished          its finetuning.               When  the  problems persisted  despite  Napco's announcement          that debugging  was complete, two explanations theoretically were          available.  Either  the system  itself was defective,  or it  was          being  operated  improperly.   At  this point,  however,  the two          possibilities were not equally  weighted.  Cambridge Plating knew          that the  system was  technically complex and  required sensitive          operation.   And  Napco's  only response  to Cambridge  Plating's          inquiries was to suggest ways to improve operation.               In these circumstances, we  do not believe Massachusetts law          requires  a finding that Cambridge  Plating was on  notice of the          system's defects.  A plaintiff is sufficiently aware of her cause          of  action,  and thus  should have  discovered  it, once  she has          received  "notice  of  likely cause,"  Fidler,  714  F.2d at  199                                                 ______          (quoted  in  Bowen, 408  Mass. at  207-08).   Accordingly,  as we                       _____                                         -20-          understand the requisite notice,  the statute of limitations will          begin  to run once the plaintiff has enough information to target          the defendant  as a suspect,  though not necessarily  to identify          the  defendant as the culprit.   See Bowen,  408 Mass. at 207-08.                                           ___ _____          We think it within  a factfinder's province to conclude  that, in          late 1985,  Cambridge Plating had no basis for suspecting Napco's          workmanship  and  reasonably  attributed  the  system's  problems          solely to  its own deficient  operation.   If so, the  statute of          limitations would not yet have begun to run.10               Cambridge  Plating  hired new  operators,  but  the problems          persisted.    So, in  late 1986,  the  company engaged  its first          expert evaluation of  the system.   This, too,  resulted in  only          operational suggestions.  Should  this expert have discovered the          defects?   Again, we believe this is a question properly answered          by the trier  of fact.   The record  contains little  information          about  the  first expert,  describing  him only  as  an assistant          instructor  for  a wastewater  treatment  course  at a  community          college who "worked on waste treatment for Hewlett Packard."  See                                                                        ___          Affidavit of Edward Marullo, at 2.   Was he competent to evaluate          the  system?  Would even a well qualified expert necessarily have          uncovered the problem based on what  he knew about the system  at                                        ____________________               10  The facts here contrast  with those in  White v. Peabody                                                           _____    _______          Construction Co.,  386 Mass. 121 (1982),  where plaintiffs sought          ________________          to  recover damages  resulting  from widespread  window and  roof          leaks  allegedly  caused  by  defendants'   improper  design  and          construction  of   a  housing   project.    The   court  rejected          application of  the discovery  rule there because  the plaintiffs          "reasonably should  have known that  widespread water leaks  in a          newly  constructed building  are almost  certainly the  result of          design or construction defects."  Id. at 130.                                            ___                                         -21-          that point?  Was it reasonable to rely on the schematics provided          by Napco showing that a static mixer had been installed?  Perhaps          the  second expert discovered the defects  only because, in light          of the earlier  expert's reasonable work, a more exhaustive study          now appeared necessary.11               Because   the   record   leaves  these   subsidiary   issues          unresolved,  factual  questions  remain as  to  whether Cambridge          Plating should  have known  even by  the end  of 1986  of Napco's          possible  responsibility  for  the  system's failings.    If  the          expert's failure  to discover the defects was  reasonable, a jury          could find that Cambridge Plating continued to deserve protection          from the discovery rule beyond that time.12               Whether  the rule's  impact, assuming  it reached  this far,          continued  on  through the  time of  actual  discovery is  also a          matter  for jury deliberation.  Was it reasonable for the company          to  wait another two years before seeking additional advice?  Was          there a point in  time after Cambridge Plating had  complied with          all of the  first expert's suggestions, still  without any change          in the  system's performance, that the  company reasonably should          have realized that Napco's work may have been to blame?                                        ____________________               11 An affidavit from the second expert, Peter Moleux, states          that, in his opinion, "the defects in the system  could have been          discovered  only by someone  with expertise  and training  in the          field  similar  to mine  and only  after  a lengthy  and thorough          inspection and analysis."  See App. at 179   33.  Moleux reported                                     ___          that he spent "many days" identifying the system's problems.                12  Of  course,  claims  subject  to  four-year  limitations          periods  would be timely even  if the discovery  rule only tolled          the running of the clock through the end of 1986.                                         -22-               In  short,  many  questions   remain.    To  determine  when          Cambridge  Plating "reasonably  should have  discovered" that  it          might have  claims against Napco  requires a  review of  specific          circumstances  about which the  record presently contains sketchy          information.  Consequently, the district court's grant of summary          judgment must be set aside.13               Reversed and remanded. No costs.               _____________________  ________                                        ____________________               13  We  are unpersuaded  by Cambridge  Plating's alternative          theories  that  the  statutes   were  tolled  because  (1)  Napco          concealed  omission of  the  static mixer  and  (2) Napco  had  a          fiduciary duty to disclose the omission but failed to do so.  See                                                                        ___          generally White v. Peabody Construction Co., Inc., 386 Mass. 121,          _________ _____    ______________________________          133-34 (1982).                                         -23-
