Smoking: statute of limitations: plaintiff was a
cigarette smoker for 35 years, from 1953 through 1987. In 1989, she was diagnosed with chronic
obstructive pulmonary disease (COPD), which plaintiff knew was caused by her smoking
habit. Nevertheless, she did not sue the
manufacturers of the cigarettes that she had smoked, and the statutory period
for doing so elapsed. In 1990 or 1991, plaintiff was diagnosed with periodontal
disease, which she knew was caused by her smoking habit. Again, she did not sue the various cigarette
manufacturers, and the statutory period for doing so elapsed. In 2003,
plaintiff was diagnosed with lung cancer.
This time, she sued. We must
decide whether the lawsuit is barred by the statute of limitations, which
requires that a suit be brought within a specified period of time after the
cause of action accrues. The matter comes to us from the United States Court of
Appeals for the Ninth Circuit. (See Cal.
Rules of Court, rule 8.548.) The Ninth Circuit
has asked us to answer two questions:
“(1) Under California law, when may two separate physical injuries
arising out of the same wrongdoing be conceived of as invading two different
primary rights? (2) Under California
law, may two separate physical injuries — both caused by a plaintiff’s use of
tobacco — be considered ‘qualitatively different’ for the purposes of
determining when the applicable statute of limitations begins to run?” (Pooshs
v. Phillip Morris USA, Inc. (9th Cir. 2009) 561 F.3d 964, 966-967 (Pooshs).) In granting the Ninth Circuit’s request, we
restated the two questions in a single question: “When multiple distinct personal injuries
allegedly arise from smoking tobacco, does the earliest injury trigger the
statute of limitations for all claims, including those based on the later
injury?” We hold that two physical injuries — both caused by the same tobacco
use over the same period of time — can, in some circumstances, be considered
“qualitatively different” for purposes of determining when the applicable
statute of limitations period begins to run.
(Grisham v. Philip Morris U.S.A.,
Inc. (2007) 40 Cal.4th 623, 645 (Grisham).) Specifically, when a later-discovered disease
is separate and distinct from an earlier-discovered disease, the earlier
disease does not trigger the statute of limitations for a lawsuit based on the
later disease. This holding is
consistent with the conclusions reached by courts in other jurisdictions
addressing the same issue, often in the context of asbestos-related litigation.
(The leading case is Wilson v. Johns-Manville Sales Corp.
(D.C. Cir. 1982) 684 F.2d 111, 112 (Wilson),
in which a federal Court of Appeals concluded “that time to commence litigation
does not begin to run on a separate and distinct disease until that disease
becomes manifest.” Cases from
jurisdictions throughout the United States have followed Wilson. (See, e.g., Nicolo v. Philip Morris, Inc (1st Cir.
2000) 201 F.3d 29; Jackson v.
Johns-Manville Sales Corp. (5th Cir. 1984) 727 F.2d 506; Goodman v. Mead Johnson & Co. (3d
Cir. 1976) 534 F.2d 566; Agles v. Merck
& Co., Inc. (D.Hawaii 1995) 875 F.Supp. 701; Anderson v. W.R. Grace & Co. (D.Mass. 1986) 628 F.Supp. 1219; Fearson v. Johns-Manville Sales Corp.
(D.D.C. 1981) 525 F.Supp. 671; Sheppard
v. A.C. & S. Co. (Del.Super.Ct. 1985) 498 A.2d 1126, affd. in Keene Corp. v. Sheppard (Del. 1986) 503
A.2d 192; VaSalle v. Celotex Corp. (Ill.App.Ct.
1987) 515 N.E.2d 684; Pierce v.
Johns-Manville Sales Corp. (Md. 1983) 464 A.2d 1020; Board of Trustees v. Mitchell (Md.Ct.Spec.App. 2002) 800 A.2d 803; Larson v. Johns-Manville Sales Corp.
(Mich. 1986) 399 N.W.2d 1; Sweeney v.
General Printing Inc. (N.Y.App.Div. 1994) 621 N.Y.S.2d 132; Marinari v. Asbestos Corp., Ltd.
(Pa.Super.Ct. 1992) 612 A.2d 1021; Shadle
v. Pearce (Pa.Super.Ct. 1981) 430 A.2d 683; Potts v. Celotex Corp. (Tenn. 1990) 796 S.W.2d 678; Pustejovsky v. Rapid-American Corp.
(Tex. 2000) 35 S.W.3d 643; Niven v. E.J.
Bartells Co. (Wn.Ct.App. 1999) 983 P.2d 1193; see also cases cited in Grisham, supra, 40 Cal.4th at p. 643, fn. 12.)We limit our holding to
latent disease cases, without deciding whether the same rule should apply in
other contexts. In addressing the issue presented here, we emphasize that
our role is only to answer the “question of California law” that the Ninth
Circuit posed to us. (Cal. Rules of
Court, rule 8.548(a).) We play no role
in assessing the merits of plaintiff’s factual assertions, which must be
determined in the federal court.
Specifically, plaintiff asserted in the federal district court that her
lung cancer is a disease that is separate and distinct from her other two
smoking-related diseases. Although this
assertion appears plausible on its face, its resolution requires medical
expertise. Here, the factual record was
never developed because the federal court considered plaintiff’s
separate-disease assertion to be irrelevant for purposes of applying the
statute of limitations, and it granted summary judgment for defendants. On plaintiff’s appeal to the Ninth Circuit,
that court then asked us whether plaintiff’s assertion that her diseases are
separate and distinct has any relevance under California statute of limitations
law. The Ninth Circuit’s reference order
states: “For the purposes of summary
judgment . . . it is uncontested that the etiology for lung
cancer is distinct from the etiology for COPD and periodontal disease.” (Pooshs,
supra, 561 F.3d at p. 967.) Therefore, in addressing the issue before us,
we assume plaintiff’s assertion to be true, and we focus solely on its legal
implications. In response to the Ninth Circuit’s inquiry, we conclude that when
a later-discovered latent disease is separate and distinct from an
earlier-discovered disease, the earlier disease does not trigger the statute of
limitations for a lawsuit based on the later disease (Cal. S. Ct., S172023,
Pooshs v. Philip Morris, 05.05.2011).
Thursday, May 5, 2011
Pooshs v. Philip Morris, S172023
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment