Supreme Court of California Justia
Citation 51 Cal. 4th 788, 250 P.3d 181, 123 Cal. Rptr. 3d 578

Pooshs v. Philip Morris

Filed 5/5/11

IN THE SUPREME COURT OF CALIFORNIA

NIKKI POOSHS,
Plaintiff and Appellant,
S172023
v.
9th Cir. No. 08-16338
PHILIP MORRIS USA, INC., et al.,
N.D. Cal. No.
Defendants and Respondents. )
3:04-cv-01221-PJH

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
1


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.1 We

1
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.

(footnote continued on next page)
2


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 . . . [i]t is
uncontested that the etiology for lung cancer is distinct from the etiology for

(footnote continued from previous page)

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.)
3


COPD and periodontal disease.”2 (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.
I
Plaintiff Nikki Pooshs filed this action in San Francisco Superior Court in
January 2004, less than a year after she was diagnosed with lung cancer. The
complaint named various corporate defendants, many of them cigarette
manufacturers. Plaintiff alleged that she smoked cigarettes from 1953 until the
end of 1987, that she was ignorant of many of the dangers associated with
cigarette smoking, and that defendants misled her about those dangers, concealed
from her the addictive properties of tobacco, and took other steps to induce her to
smoke. She asserted 13 theories of recovery, including allegations of negligence,
products liability, misrepresentation, fraud, conspiracy, failure to warn, unfair
competition, and false advertising.
Defendants removed the case to federal court and then filed several motions
to dismiss. After several dismissals, only four cigarette manufacturers and their
public relations agent remained as defendants. These remaining defendants sought
dismissal of the complaint, citing the Ninth Circuit‟s decision in Soliman v. Philip
Morris Inc. (9th Cir. 2002) 311 F.3d 966 (Soliman). In that case, a California
plaintiff alleged that he had smoked cigarettes since the late 1960‟s and could not
quit. (Id. at p. 969.) He claimed nicotine addiction as one of his injuries, in
addition to several respiratory and emotional disorders. (Id. at pp. 969-970, 972.)

2
At oral argument before this court, defendants clarified that this factual
point is “uncontested” only for purposes of the summary judgment issue.
Defendants contend that even if plaintiff‟s diseases are separate and distinct, the
point is irrelevant to the application of the statute of limitations bar, and the
validity of that contention is the legal issue before us.
4


He further claimed that he did not learn that smoking was addictive (and that he
was addicted) until late 1999. In March 2000, he sued various tobacco companies
in state court. (Id. at p. 970.) The Soliman defendants removed the case to federal
court and then moved to dismiss the complaint on statute of limitations grounds.
The defendants doubted that the plaintiff, who had smoked for 32 years, could
have discovered his health problems only months before bringing suit. They
argued that he had constructive knowledge much earlier, and therefore his suit was
time-barred. The district court, applying California law, dismissed the complaint
because of expiration of the statute of limitations period. The plaintiff appealed to
the Ninth Circuit. (Ibid.)
The Ninth Circuit affirmed the district court‟s judgment in Soliman, supra,
311 F.3d 966. The Ninth Circuit observed that the plaintiff alleged addiction as
one of his injuries and he had constructive knowledge of that addiction long before
he filed suit.3 (Soliman, at pp. 972-973.) The court reasoned that the general
public is “presumed by California law to know that smoking causes addiction” (id.
at p. 974) and therefore a “longtime smoker” like the plaintiff may not claim
delayed discovery of that injury (id. at p. 975). Because the plaintiff could be
“charged with this knowledge” long before he filed suit, the Ninth Circuit in
Soliman concluded that the action was time-barred. (Ibid.)
Here, relying on Soliman, supra, 311 F.3d 966, the federal district court
granted defendants‟ motion to dismiss. The court found that “while the plaintiff in

3
In Soliman, supra, 311 F.3d 966, the Ninth Circuit did not decide whether,
under California law, addiction alone is an actionable injury. Instead, the court
relied on the fact that the plaintiff had alleged addiction as an injury. The court
said: “Soliman can‟t claim that his addiction is an appreciable injury and, at the
same time, ask us to ignore it in determining when his claim accrued.” (Id. at
p. 973.)
5


the present case may not claim addiction as an injury in quite so specific a way as
did the plaintiff in Soliman, the allegation that the plaintiff here became addicted
to nicotine and was injured by that addiction runs as a thread throughout the
complaint.” (Pooshs v. Altria Group, Inc. (N.D. Cal. 2004) 331 F.Supp.2d 1089,
1095.) The district court found Soliman to be controlling and dismissed with
prejudice plaintiff‟s claims against defendants.
Plaintiff appealed to the Ninth Circuit, which held the appeal in abeyance
pending our decision in Grisham, supra, 40 Cal.4th 623. In Grisham, we
considered whether the Ninth Circuit in Soliman, supra, 311 F.3d 966, had
correctly construed California law. Grisham addressed these two questions: (1) Is
there a presumption under California law that, at least since 1988, the general
public has been aware of the addictive nature and health dangers of smoking
(thereby barring under the statute of limitations a cause of action for addiction-
based economic losses) and (2) If the cause of action for addiction-based economic
losses is time-barred, is a claim for physical injuries resulting from the same
tobacco use also time-barred? (Grisham, supra, 40 Cal.4th at p. 628.)
With respect to the first question, we held in Grisham, supra, 40 Cal.4th
623, that there is no special presumption that smokers are aware of the dangers of
smoking. We observed, however, that there is a general, rebuttable presumption
that a plaintiff has knowledge of the wrongful causes of an injury. To rebut this
general presumption a plaintiff must make certain specific allegations that the
plaintiff in Grisham had not made and, in light of her other allegations, could not
plausibly make. (Id. at pp. 638-639.) Accordingly, in that case the plaintiff‟s
economic injury claim was time-barred under the applicable statute of limitations.
(Id. at p. 639.)
With respect to the second question in Grisham, supra, 40 Cal.4th 623, we
expressly chose not to decide whether a claim alleging smoking-related physical
6
injury involves a different primary right than a claim alleging smoking-related
economic injury. (Id. at pp. 643, 646.) Instead, we decided the case solely as a
matter of statute of limitations law. We noted that economic injury and physical
injury are “qualitatively different” types of injury (id. at p. 645; see also id. at
p. 643), and we concluded that an appreciable injury of the first type does not
commence the statutory period for suing based on a later-discovered injury of the
second type (id. at p. 644). We did not, however, address in Grisham whether this
same distinction would apply in a case like the one now before us, where both
injuries are physical. (Id. at p. 643.)
While Grisham, supra, 40 Cal.4th 623, was pending before us, defendants
in this case took plaintiff‟s deposition and learned that she had suffered from
significant medical effects from smoking long before she was diagnosed with lung
cancer and long before she filed her current, lung-cancer-based lawsuit.
Specifically, she was diagnosed in 1989 with COPD, which is a diagnosis used to
describe both emphysema and chronic bronchitis. Plaintiff also admitted knowing
as early as 1989 that this pulmonary disease was caused by smoking. And later, in
1990 or 1991, she was diagnosed with periodontal disease, which her periodontist
told her was caused by smoking. She did not sue defendants for either of these
diseases despite knowing that they were caused by smoking.
After we decided Grisham, supra, 40 Cal.4th 623, the Ninth Circuit vacated
the district court‟s judgment in this case and remanded the matter to that court.
Defendants then moved for summary judgment, this time asserting that plaintiff‟s
physical injuries diagnosed in 1989 (COPD) and in 1990 or 1991 (periodontal
disease) commenced the statutory period for bringing her present action, which is
based on the third disease (lung cancer). Having suffered significant physical
injuries with knowledge that smoking was the cause of those injuries, and having
failed to sue defendants within the applicable statutory periods, plaintiff could not
7
— in defendants‟ view — later bring suit and assert that her physical injuries
turned out to be worse than previously thought. Allowing the suit under those
circumstances, defendants asserted, would conflict with the well-settled rule that a
statute of limitations starts to run when the plaintiff suffers “appreciable and actual
harm, however uncertain in amount.” (Davies v. Krasna (1975) 14 Cal.3d 502,
514 (Davies); see also DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1022
(DeRose).)
Plaintiff responded that her three physical injuries (COPD, periodontal
disease, and lung cancer) were separate diseases, and that each was therefore the
basis of a distinct primary right. Plaintiff stated “that COPD is a separate illness,
which does not pre-dispose or lead to lung cancer and that it has nothing
medically, biologically, or pathologically to do with lung cancer.” She further
argued that the primary right at issue here is not the right to be free from the
wrongful exposure to tobacco smoke; rather, it is the right to be free from lung
cancer caused by the wrongful exposure to tobacco smoke, and that this primary
right is different from the right to be free from COPD or from periodontal disease
caused by the wrongful exposure to tobacco smoke. The federal district court, to
which the case had been remanded by the Ninth Circuit, rejected that argument.
In the view of the federal district court, plaintiff‟s various physical injuries
were merely different ways in which she was damaged by a single alleged wrong
(tobacco exposure), like suffering a broken arm and a broken leg from a single car
accident. To draw distinctions among the different types of physical injury (i.e.,
COPD, periodontal disease, and lung cancer) that plaintiff suffered from smoking
and then to allow separate suits for each injury, would — the district court said —
conflict with the rule against splitting a cause of action: “The longstanding rule in
California . . . is that „[a] single tort can be the foundation for but one claim for
8
damages.‟ ” (DeRose, supra, 196 Cal.App.3d at p. 1024, fn. 5.) Accordingly, the
district court granted summary judgment for defendants.
Plaintiff again appealed to the Ninth Circuit, which then asked us for
clarification of California law on the application of the statute of limitations when
two separate diseases arise at different times from the same alleged wrongdoing.
(Pooshs, supra, 561 F.3d at pp. 966-967.) We granted the Ninth Circuit‟s request.
II
A statute of limitations strikes a balance among conflicting interests. If it is
unfair to bar a plaintiff from recovering on a meritorious claim, it is also unfair to
require a defendant to defend against possibly false allegations concerning long-
forgotten events, when important evidence may no longer be available. Thus,
statutes of limitations are not mere technical defenses, allowing wrongdoers to
avoid accountability. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 395-397.)
Rather, they mark the point where, in the judgment of the legislature, the equities
tip in favor of the defendant (who may be innocent of wrongdoing) and against the
plaintiff (who failed to take prompt action): “[T]he period allowed for instituting
suit inevitably reflects a value judgment concerning the point at which the interests
in favor of protecting valid claims are outweighed by the interests in prohibiting
the prosecution of stale ones.” (Johnson v. Railway Express Agency (1975) 421
U.S. 454, 463-464.)
Critical to applying a statute of limitations is determining the point when
the limitations period begins to run. Generally, a plaintiff must file suit within a
designated period after the cause of action accrues. (Code Civ. Proc., § 312.) A
cause of action accrues “when [it] is complete with all of its elements” — those
elements being wrongdoing, harm, and causation. (Norgart v. Upjohn Co., supra,
21 Cal.4th at p. 397.)
9
Application of the accrual rule becomes rather complex when, as here, a
plaintiff is aware of both an injury and its wrongful cause but is uncertain as to
how serious the resulting damages will be or whether additional injuries will later
become manifest. Must the plaintiff sue even if doing so will require the jury to
speculate regarding prospective damages? Or can the plaintiff delay suit until a
more accurate assessment of damages becomes possible? Generally, we have
answered those questions in favor of prompt litigation, even when the extent of
damages remains speculative. Thus, we have held that “the infliction of
appreciable and actual harm, however uncertain in amount, will commence the
statutory period.” (Davies, supra, 14 Cal.3d at p. 514.)
The most important exception to that general rule regarding accrual of a
cause of action is the “discovery rule,” under which accrual is postponed until the
plaintiff “discovers, or has reason to discover, the cause of action.” (Norgart v.
Upjohn Co., supra, 21 Cal.4th at p. 397.) Discovery of the cause of action occurs
when the plaintiff “has reason . . . to suspect a factual basis” for the action. (Id. at
p. 398; see also Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.) “The
policy reason behind the discovery rule is to ameliorate a harsh rule that would
allow the limitations period for filing suit to expire before a plaintiff has or should
have learned of the latent injury and its cause.” (Buttram v. Owens-Corning
Fiberglas Corp. (1997) 16 Cal.4th 520, 531.)
III
Defendants‟ core argument is that plaintiff‟s 1989-diagnosed COPD, either
alone or in combination with the 1990- or 1991-diagnosed periodontal disease,
constituted “appreciable and actual harm” (Davies, supra, 14 Cal.3d at p. 514),
triggering the running of the pertinent statute of limitations on her indivisible
cause of action for smoking-related injury. In 2003, plaintiff was diagnosed with
lung cancer, which led her to sue defendants. As of 1991, defendants assert,
10
plaintiff had suffered actual harm, her damages were not merely nominal,4 and she
knew that the harm she had suffered was from smoking. Therefore, in defendants‟
view, plaintiff should have brought her lawsuit at that time. That she might
eventually develop lung cancer in 2003 was, according to defendants, merely an
uncertainty as to the amount of harm, which did not delay the running of the
statute of limitations. In short, defendants‟ view is that plaintiff could have sued
in 1991 but failed to do so. Because defendants‟ argument depends heavily on the
“appreciable and actual harm” rule we announced in Davies, supra, 14 Cal.3d at
page 514, and then clarified in Grisham, supra, 40 Cal.4th at page 644, we discuss
those cases in detail below.
Unlike this case, Davies, supra, 14 Cal.3d 502, was not a personal injury
case. Rather, Davies involved a cause of action for “breach of confidence” — that
is, the breach of an obligation, imposed by law, to maintain the confidentiality of a
story idea.5 In 1951, the plaintiff, Valentine Davies, submitted a written story in
confidence to the defendant, Norman Krasna, who later incorporated the idea into
a successful Broadway play. (Davies, at pp. 504-505, 511.) Davies knew as early
as 1955 that Krasna had breached his obligation to maintain the confidentiality of
the story (id. at p. 512), and Davies suffered actual harm at that time (because the
breach “ „substantially destroyed the marketability of [the] story‟ ” (id. at p. 514)).
Nevertheless, Davies did not sue Krasna until 1958, when Krasna began profiting

4
According to the United States Department of Health & Human Services,
COPD is the fourth leading cause of death in the United States. (See Centers for
Disease Control and Prevention, Nat. Center for Health Statistics, Leading Causes
of Death <http://www.cdc.gov/nchs/fastats/lcod.htm> [as of May 5, 2011].)
5
This court‟s decision in Davies, supra, 14 Cal.3d 502, did not actually
recognize the validity of this “breach of confidence” cause of action; instead, we
assumed (based on the law of the case) that the plaintiff had stated a valid cause of
action, and we proceeded to address the statute of limitations issue. (Id. at p. 508.)
11


financially from the story. We held that the applicable two-year statute of
limitations began to run in 1955 when Davies first learned of the breach and
suffered “appreciable and actual harm.” In that context, we said: “[N]either
uncertainty as to the amount of damages nor difficulty in proving damages tolls
the period of limitations.” (Ibid.)
Significantly, in Davies, supra, 14 Cal.3d 502, we were considering only a
single type of injury (economic injury based on the misappropriation of
intellectual property), and the issue was whether uncertainty as to the extent of the
damages associated with that single injury delayed the running of the statute of
limitations. Thus, we did not consider in Davies whether “the infliction of
appreciable and actual harm” of one type (for example, economic injury) would
“commence the statutory period” with respect to harm of a completely different
type (for example, physical injury). (Id. at p. 514.) Nor did we consider whether
“the infliction of appreciable and actual harm” in the form of a specific disease
(such as COPD here) would “commence the statutory period” with respect to a
separate and distinct disease (as the lung cancer here is alleged to be). (Ibid.)
Therefore, Davies does not govern this case. We have never stated what
commences the running of the statutory period in a case like this one, in which a
later-discovered physical injury is alleged to be separate from an earlier-
discovered physical injury. Our decision in Grisham, supra, 40 Cal.4th 623,
emphasized the limits of our holding in Davies, supra, 14 Cal.3d 502.
As relevant here, the plaintiff in Grisham, supra, 40 Cal.4th 623, sued
cigarette manufacturers for smoking-related injuries. She contended that the
cigarette manufacturers had wrongfully induced her addiction to tobacco, and she
alleged claims for economic injury (the cost of purchasing cigarettes) and personal
injury (emphysema and periodontal disease). (Id. at pp. 629-631.) We concluded in
Grisham that the economic injury claim was barred by the applicable statute of
12
limitations because the plaintiff knew or should have known about her injury long
before she filed suit. (Id. at pp. 638-639.) That conclusion raised the question
whether the personal injury claims were also barred, on the theory that the plaintiff
had suffered only one indivisible harm and that the physical injuries were simply
another category of damages related to that single harm. In addressing this question
in Grisham, we did not decide whether the two injuries (economic and physical)
implicated two separate primary rights. (Id. at pp. 643, 646.) Instead, we focused
exclusively on the statute of limitations, and we held that appreciable harm in the
form of an economic injury does not begin the running of the statute of limitations
on a suit to recover damages for a physical injury. (Id. at pp. 643-646.) Grisham
interpreted the “appreciable and actual harm” rule of Davies, supra, 14 Cal.3d at
page 514, to be limited to cases involving a single type of injury, and we found no
case applying that rule to a later-discovered injury of a different type. (Grisham, at
p. 644.)6

6
As mentioned, the court in Grisham, supra, 40 Cal.4th 623, concluded the
plaintiff‟s later manifesting claim for physical injury was timely without also
determining whether that claim involved the same primary right as the plaintiff‟s
earlier manifesting claim for economic damage. In so doing, we necessarily,
albeit implicitly, assumed that, even if the plaintiff‟s various claims involved only
a single primary right (as the defendants there asserted), we could still apply the
statute of limitations separately to the plaintiff‟s physical injury claim. (Id. at
pp. 643, 646.) In other words, we necessarily accepted the possibility that a
plaintiff can have a single cause of action that accrues (for statute of limitations
purposes) at different times with respect to different types of harm, thus permitting
some damage claims to proceed although others are time-barred.

To that extent, Grisham, supra, 40 Cal.4th 623, logically supports the
recognition of an exception to the rule that “a single tort can be the foundation of
but one claim for damages.” (Miller v. Lakeside Village Condominium Assn.
(1991) 1 Cal.App.4th 1611, 1622; DeRose, supra, 196 Cal.App.3d 1011, 1024.)
Because the exception is inferred from Grisham‟s holding, it is necessarily limited
to cases presenting the same legal and factual situation, that is, a statute of
limitations defense to a claim alleging a latent disease that is separate and distinct

(footnote continued on next page)
13


In Grisham, supra, 40 Cal.4th 623, we also emphasized the impractical
consequences of a contrary conclusion, relying on Fox v. Ethicon Endo-Surgery,
Inc. (2005) 35 Cal.4th 797 (Fox). There, the plaintiff underwent gastric bypass
surgery. She later sued the surgeon and the hospital for medical malpractice.
During discovery, she learned that her alleged injury might have been caused by a
defective stapler manufactured by a nonparty. The plaintiff then amended her
complaint to add as a defendant the stapler manufacturer, which asserted the
statute of limitations as a defense. (Id. at pp. 803-805.) We concluded in Fox that
knowledge of the facts supporting a medical malpractice cause of action against
one defendant does not necessarily commence the running of the statute of
limitations with respect to a separate products liability cause of action against a
different defendant. (Id. at pp. 813-815.)
Grisham, supra, 40 Cal.4th 623, involved a claim against the same
defendants alleging different injuries, whereas Fox, supra, 35 Cal.4th 797,
involved a claim against different defendants alleging the same injury.
Nevertheless, we held that the policy underlying our holding in Fox was equally
applicable in Grisham. In Grisham, we quoted the following language from Fox:
“ „[I]t would be contrary to public policy to require plaintiffs to file a lawsuit “at a
time when the evidence available to them failed to indicate a cause of action.”

(footnote continued from previous page)

from, and becomes manifest long after, the initial effects of the plaintiff‟s injury.
(Grisham, supra, 40 Cal.4th at p. 644.) Of course, the need for such an exception
in any particular case depends on how the relevant primary rights are defined. If
two primary rights (and hence two causes of action) are alleged, those two causes
of action can accrue independently for purposes of applying the statute of
limitations without the need for an exception to the rule that a single tort supports
only a single claim. (See Code Civ. Proc., § 312.)
14


[Citations.] Were plaintiffs required to file all causes of action when one cause of
action accrued, . . . they would run the risk of sanctions for filing a cause of action
without any factual support. [Citations.] Indeed, it would be difficult to describe
a cause of action filed by a plaintiff, before that plaintiff reasonably suspects that
the cause of action is a meritorious one, as anything but frivolous. At best, the
plaintiff‟s cause of action would be subject to demurrer for failure to specify
supporting facts [citation].‟ ” (Grisham, supra, 40 Cal.4th at pp. 644-645, quoting
Fox, supra, 35 Cal.4th at p. 815.)
Applying that language from Fox, supra, 35 Cal.4th at page 815, to the
facts in Grisham, supra, 40 Cal.4th 623, we rejected a rule that “would compel
cigarette smokers either to file groundless tort causes of action based on physical
injury against tobacco companies as soon as they discovered they were addicted to
cigarettes and had an unfair competition cause of action . . . , or risk losing their
right to sue in tort for such physical injury.” (Id. at p. 645.) Such a requirement,
Grisham said, “would violate the essence of the discovery rule that a plaintiff need
not file a cause of action before he or she „ “has reason at least to suspect a factual
basis for its elements.” [Citations.]‟ [Citation.]” (Ibid.) Furthermore,
“[i]t would directly contravene „the interest of the courts and of litigants against
the filing of potentially meritless claims.‟ [Citation.]” (Ibid.)
In Grisham, supra, 40 Cal.4th 623, we expressly stopped short of deciding
the issue presented here, in which a single wrong gives rise to two injuries of the
same general type (physical injuries), but the two injuries become manifest at
different times and are alleged to be separate and distinct. (Id. at p. 646.)
Nevertheless, we see no reason not to apply to this case the logic of Grisham. In
both cases, the injuries arose at different times and were separate from one
another. In Grisham, the injuries were separate from one another in that one was
15
economic and the other was physical; here, the Ninth Circuit has asked us to
assume that the injuries are three separate diseases. (See pp. 3-4, ante.)
It is critical to consider the posture in which this matter comes to us. To
defeat summary judgment in the federal district court, plaintiff needed to identify
an issue of fact that, if decided in her favor, would allow her to overcome
defendants‟ statute of limitations defense. (See generally Anderson v. Liberty
Lobby, Inc. (1986) 477 U.S. 242, 248; Celotex Corp. v. Catrett (1986) 477 U.S.
317, 322.) The issue of fact that plaintiff identified in the federal district court was
that her lung cancer is a disease that is separate from her earlier-discovered COPD
and periodontal disease. For example, plaintiff stated “that COPD is a separate
illness, which does not pre-dispose or lead to lung cancer and that it has nothing
medically, biologically, or pathologically to do with lung cancer.” It is not our
role to decide or even question the factual validity of that assertion. Rather, our
role is to determine, as a legal matter, whether plaintiff‟s assertion has any
relevance under California law for purposes of applying the statute of limitations,
for that is the question that the Ninth Circuit asked us to decide. In other words,
the Ninth Circuit has asked us to assume plaintiff‟s assertion to be true and to
decide, as a matter of California law, whether two physical injuries that constitute
separate diseases and that become manifest at different times can be considered
“qualitatively different” (Grisham, supra, 40 Cal.4th at p. 645) for purposes of
applying the statute of limitations. The answer is “yes.”
As already discussed (see pp. 14-15, ante), we emphasized in Grisham that
it made little sense to require a plaintiff whose only known injury is economic to
sue for personal injury damages based on the speculative possibility that a then
latent physical injury might later become apparent. (Grisham, supra, 40 Cal.4th at
pp. 644-645.) Likewise, here, no good reason appears to require plaintiff, who
years ago suffered a smoking-related disease that is not lung cancer, to sue at that
16
time for lung cancer damages based on the speculative possibility that lung cancer
might later arise. Nothing we said in Davies, supra, 14 Cal.3d 502, requires such
a rule, and defendants here have cited no case that supports such a rule. Moreover,
although we reaffirm the application of the “appreciable and actual harm” rule (id.
at p. 514) to cases that do not involve latent diseases, application of that rule to bar
plaintiff‟s lung cancer claim before her lung cancer had become manifest would
violate the policy underlying the discovery rule, which, as we noted earlier, is to
prevent “the limitations period . . . [from] expir[ing] before a plaintiff has or
should have learned of the latent injury and its cause.” (Buttram v. Owens-
Corning Fiberglas Corp., supra, 16 Cal.4th at p. 531.)
It is true that here plaintiff‟s COPD involved the same part of the body (the
lungs) as her lung cancer. Nevertheless, as we noted earlier, the Ninth Circuit has
asked that in deciding the statute of limitations issue we accept as true plaintiff‟s
factual assertion “that COPD is a separate illness, which does not pre-dispose or
lead to lung cancer and that it has nothing medically, biologically, or
pathologically to do with lung cancer.” (See p. 16, ante.) Assuming that assertion
to be true, it does not matter that both diseases affect the lungs. The significant
point is that the later-occurring disease (lung cancer) is, according to plaintiff‟s
offer of proof, a disease that is separate and distinct from the earlier-occurring
disease (COPD). Therefore, under the logic of our decision in Grisham, supra, 40
Cal.4th 623, the statute of limitations bar can apply to one disease without
applying to the other.
17

IV
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.
KENNARD, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
SUZUKAWA, J.*

*
Associate Justice, Court of Appeal, Second Appellate District, Division
Four, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
18



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Pooshs v. Philip Morris USA, Inc.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding XXX on certification pursuant to rule 8.548, Cal, Rules of Court
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S172023
Date Filed: May 5, 2011
__________________________________________________________________________________

Court:


County:
Judge:


__________________________________________________________________________________

Counsel:

Brayton ♦ Purcell, Alan R. Brayton, Gilbert L. Purcell and Lloyd F. LeRoy for Plaintiff and Appellant.

Law Office of Holly L. Hostrop and Holly L. Hostrop for Tobacco Trial Lawyers Association as Amicus
Curiae on behalf of Plaintiff and Appellant.

Jones Day, Peter N. Larson, Stephen J. Kaczynski and Ashlie E. Case for Defendants and Respondents R.J.
Reynolds Tobacco Co. and Brown & Williamson Holdings, Inc.

Munger, Tolles & Olson, Daniel P. Collins and David S. Han for Defendant and Respondent Philip Morris
USA Inc.

Shook, Hardy & Bacon and Kevin Underhill for Defendant and Respondent Lorillard Tobacco Co.

Krieg, Keller, Sloan, Reilley & Roman, Stan G. Roman and Tracy M. Clements for Defendant and
Respondent Hill & Knowlton, Inc.

Daniel J. Popeo, Richard A. Samp; Bergeson and Mark E. Foster for Washington Legal Foundation as
Amicus Curiae on behalf of Defendants and Respondents.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Gilbert L. Purcell
Brayton ♦ Purcell
222 Rush Landing Road
Novato, CA 94948
(415) 898-1555

Daniel P. Collins
Munger, Tolles & Olson
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071-1560
(213) 683-9100


Request under California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. As restated by the court, the question presented is: "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 a later injury?"

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 05/05/201151 Cal. 4th 788, 250 P.3d 181, 123 Cal. Rptr. 3d 578S172023Question of Law - Civilsubmitted/opinion due

561 F.3d 964 (2009)


Opinion Authors
OpinionJustice Joyce L. Kennard

Dockets
Apr 13 2009Request to answer question of state law filed
Information only: United States Court of Appeals for the Ninth Circuit  
Apr 13 2009Received:
  Certified copy of General Docket, Appellant's Opening Brief, Apellant's Excerpts of Record, Defendants' Brief, Appellant's Supplemental Excerpts of Record, Appellant's Reply Brief, Appellant's to AC Brief Filed by Washington legal Foundation
Apr 21 2009Filed:
  Letter dated 4-21-2009 from Defendants/Respondents Philip Morris USA, Inc. et al. by Daniel P. Collins, retained counsel
May 4 2009Filed:
  Appellant Pooshs' Response Letter dated 5-4-2009 Gilbert L.Purcell, Brayton Purcell LLP, retained counsel.
May 20 2009Request for certification granted
  The court grants the request, made pursuant to California Rules of Court, rule 8.548, for this court to decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. Pursuant to rule 8.548(f)(5) of the California Rules of Court, this court restates the questions as follows: "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 a later injury?" For the purposes of briefing and oral argument, plaintiff Nikki Pooshs is deemed the petitioner in this court. (Cal. Rules of Court, rule 8.520(a)(6).) George, C.J., was absent and did not participate. Votes: Kennard, A.C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
May 29 2009Letter sent to:
  All counsel re certification of interested entities or persons
Jun 4 2009Certification of interested entities or persons filed
  By Nikki Pooshs, Petitioner by Leroy F. Lloyd, counsel
Jun 10 2009Certification of interested entities or persons filed
  Defendants R. J. Reynolds Tobacco Company and Brown & Williamson Holdings, Inc. (formerly known as Brown & Williamson Tobacco Corporation) by Peter N. Larson, counsel
Jun 12 2009Certification of interested entities or persons filed
  M. Kevin Underhill, counsel for defendant Lorillard Tobacco Company and Lorillard, Inc.
Jun 12 2009Certification of interested entities or persons filed
  Daniel P. Collins, Munger Tolles & Olson LLP, counsel for Philip Morris USA Inc.
Jun 19 2009Opening brief on the merits filed
Plaintiff and Appellant: Pooshs, NikkiAttorney: James Patrick Nevin   Nikki Pooshs, Appellant by Lloyd F. Leroy, counsel
Jun 23 2009Received:
  ERRATA - Appellant's Opening Brief on the Merits -- Complete Page 31 Alan R. Brayton, Brayton and Purcell LLP, counsel.
Jun 25 2009Certification of interested entities or persons filed
  Hill and Knowlton, Inc., respondent Stanley G. Roman, counsel.
Jul 21 2009Answer brief on the merits filed
Defendant and Respondent: Philip Morris USA, Inc.Attorney: Daniel P. Collins Defendant and Respondent: R.J. Reynolds Tobacco CompanyAttorney: Peter N. Larson Defendant and Respondent: Brown & Williamson Holding, Inc..Attorney: Peter N. Larson   Philip Morris USA, Inc., et al., defendants and respondents Daniel P. Colins, counsel for Philip Morris USA Peter N. Larson, counsel for R.J. Reynolds Tobacco Co. and Brown & Williamson Holdings, Inc. CRC 8.25(b)
Aug 10 2009Reply brief filed (case fully briefed)
Plaintiff and Appellant: Pooshs, NikkiAttorney: Alan R. Brayton Attorney: Gilbert L. Purcell Attorney: Lloyd F. Leroy   Nikki Pooshs, plaintiff and appellant Lloyd F. LeRoy, retained counel
Aug 25 2009Application to file amicus curiae brief filed
  Tobacco Trial Lawyers Association in support of appellant Holly L. Hostrop, retained counsel
Sep 3 2009Permission to file amicus curiae brief granted
  The application of Tobacco Trial Lawyers Association for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Sep 3 2009Amicus curiae brief filed
Amicus curiae: Tobacco Trial Lawyers AssociationAttorney: Holly Lee Hostrop   Tobacco Trial Lawyers Association in support of appellant. Holly L. Hostrop, counsel.
Sep 9 2009Application to file amicus curiae brief filed
  Washington Legal Foundation in support of respondents. Mark E. Foster, retained counsel Richard A. Samp, of counsel.
Sep 21 2009Request for extension of time filed
  Respondents' responses to amicus curiae briefs to and including 10-23-2009
Sep 21 2009Permission to file amicus curiae brief granted
  The application of Washington Legal Foundation for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Sep 21 2009Amicus curiae brief filed
Amicus curiae: Washington Legal FoundationAttorney: Daniel J. Popeo Attorney: Mark Edward Foster Attorney: Richard A. Samp   Washington Legal Foundation in support of respondents.
Sep 23 2009Extension of time granted
  On application of respondents and good cause appearing, it is ordered that the time to serve and file respondents' responses to amicus curiae briefs is extended to and including October 23, 2009.
Oct 9 2009Response to amicus curiae brief filed
Plaintiff and Appellant: Pooshs, NikkiAttorney: Alan R. Brayton   by appellant to amicus curiae brief filed by Washington Legal Foundation.
Oct 26 2009Response to amicus curiae brief filed
Defendant and Respondent: Philip Morris USA, Inc.Attorney: Daniel P. Collins Defendant and Respondent: R.J. Reynolds Tobacco CompanyAttorney: Peter N. Larson Defendant and Respondent: Brown & Williamson Holding, Inc..Attorney: Paul Grant Crist Defendant and Respondent: Lorillard Tobacco CompanyAttorney: Michael Kevin Underhill Defendant and Respondent: Hill & Knowlton, Inc.Attorney: Stanley G. Roman   Respondents' response to amicus curiae brief of Tobacco Trial Lawyers Association CRC 8.25(b)
Feb 11 2010Received:
  Letter dated 2-10-2010 from Peter N. Larson, Jones Day, will continue to act as counsel of record, following the retirement of Paul G. Crist from the firm.
Jan 6 2011Case ordered on calendar
  to be argued Tuesday, February 8, 2011, at 9:00 a.m., in San Francisco
Jan 10 2011Change of contact information filed for:
  Stanley Roman, counsel for respondents.
Jan 18 2011Supplemental brief filed
Defendant and Respondent: Philip Morris USA, Inc.Attorney: Daniel P. Collins Defendant and Respondent: R.J. Reynolds Tobacco CompanyAttorney: Peter N. Larson Defendant and Respondent: Brown & Williamson Holding, Inc..Attorney: Peter N. Larson Defendant and Respondent: Hill & Knowlton, Inc.Attorney: Stanley G. Roman  
Jan 26 2011Supplemental brief filed
Plaintiff and Appellant: Pooshs, NikkiAttorney: Lloyd F. Leroy  
Feb 3 2011Argument rescheduled
  to be called and continued to a future oral argument session
Feb 8 2011Cause called and continued
 
Feb 8 2011Argument rescheduled
  to be argued Tuesday, March 8, 2011, at 9:00 a.m., in San Francisco
Feb 7 2011Justice pro tempore assigned
  Hon. Steven C. Suzukawa Second Appellate District, Division Four
Mar 8 2011Cause argued and submitted
 
May 4 2011Notice of forthcoming opinion posted
  To be filed on Thursday, May 5, 2011 at 10 a.m.

Briefs
Jun 19 2009Opening brief on the merits filed
Plaintiff and Appellant: Pooshs, NikkiAttorney: James Patrick Nevin  
Jul 21 2009Answer brief on the merits filed
Defendant and Respondent: Philip Morris USA, Inc.Attorney: Daniel P. Collins Defendant and Respondent: R.J. Reynolds Tobacco CompanyAttorney: Peter N. Larson Defendant and Respondent: Brown & Williamson Holding, Inc..Attorney: Peter N. Larson  
Aug 10 2009Reply brief filed (case fully briefed)
Plaintiff and Appellant: Pooshs, NikkiAttorney: Alan R. Brayton Attorney: Gilbert L. Purcell Attorney: Lloyd F. Leroy  
Sep 3 2009Amicus curiae brief filed
Amicus curiae: Tobacco Trial Lawyers AssociationAttorney: Holly Lee Hostrop  
Sep 21 2009Amicus curiae brief filed
Amicus curiae: Washington Legal FoundationAttorney: Daniel J. Popeo Attorney: Mark Edward Foster Attorney: Richard A. Samp  
Oct 26 2009Response to amicus curiae brief filed
Defendant and Respondent: Philip Morris USA, Inc.Attorney: Daniel P. Collins Defendant and Respondent: R.J. Reynolds Tobacco CompanyAttorney: Peter N. Larson Defendant and Respondent: Brown & Williamson Holding, Inc..Attorney: Paul Grant Crist Defendant and Respondent: Lorillard Tobacco CompanyAttorney: Michael Kevin Underhill Defendant and Respondent: Hill & Knowlton, Inc.Attorney: Stanley G. Roman  
Oct 9 2009Response to amicus curiae brief filed
Plaintiff and Appellant: Pooshs, NikkiAttorney: Alan R. Brayton  
Brief Downloads
application/pdf icon
s172023-1-request-answer-question-state-law.pdf (155798 bytes) - Certification of Question of State Law to CA State Court
application/pdf icon
s172023-2-appellants-opening-brief-on-the-merits.pdf (696964 bytes) - Appellants Opening Brief on the Merits
application/pdf icon
s172023-3-respondents-answer-brief-merits.pdf (395592 bytes) - Respondents Answer Brief on the Merits
application/pdf icon
s172023-4-appellants-reply-brief-merits.pdf (152976 bytes) - Respondents Reply Brief on the Merits
application/pdf icon
s172023-5-respondents-supplemental-brief.pdf (151310 bytes) - Respondents Supplemental Brief
application/pdf icon
s172023-6-appellants-supplemental-brief.pdf (104959 bytes) - Appellants Supplemental Brief
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 24, 2011
Annotated by emma laughlin

Facts

Nikki Pooshs began smoking cigarettes in 1953 and smoked for at least thirty-five years. (The federal court indicates that she stopped smoking in 1991; the California Supreme Court indicates that she stopped smoking in 1987). Pooshs has been diagnosed with three separate illnesses that she believes are all related to her cigarette smoking. In 1989 and again in 1999 Pooshs was diagnosed with chronic obstructive pulmonary disease (COPD), a lung disease. In 1990 Pooshs was diagnosed with periodontal disease (gum disease), and in 2003 she was diagnosed with lung cancer. Pooshs alleges that the lung cancer is a separate disease from the prior two diseases; that is, the previous diseases were not precursors to the lung cancer.

In 2004, within two years of her lung cancer diagnosis, Pooshs filed this action to recover damages for her lung cancer. She listed a number of defendants, including cigarette manufacturers and their public relation agent. She also listed multiple theories of recovery, including negligence, products liability, misrepresentation, fraud, conspiracy, failure to warn, unfair competition, and false advertising.

Defendants claim that Pooshs should be time-barred from her claims because the statute of limitations began running when she was diagnosed with the first smoking related disease in 1989.

Procedural History

Pooshs initially filed in San Francisco Superior Court in 2004. Defendants removed the case to federal court and filed for dismissal, citing Soliman, a Ninth Circuit case. In Soliman, the court held the plaintiff had constructive knowledge that smoking was addictive long before he filed his suit, so his claim against the cigarette manufacturer for marketing an addictive product was time-barred. (Soliman v. Philip Morris Inc., (9th Cir. 2002) 311 F.3d 966). The district court granted the defendants’ motion to dismiss with prejudice, finding that Pooshs’s claims were all premised on her addiction to nicotine, which was time-barred under Soliman.

Pooshs appealed to the Ninth Circuit, which held the case in abeyance while the California Supreme Court decided Grisham. (Grisham v. Philip Morris USA, Inc., (2007) 40 Cal. 4th 623). Grisham addressed whether the Ninth Circuit had properly applied California law in Soliman.

In Grisham, the California Supreme Court held that there is a presumption that a plaintiff has knowledge of the harmful effects of smoking, but that this presumption is rebuttable. The Court then decided a separate statute of limitations issue. The plaintiff claimed two types of harm from smoking cigarettes: economic harm and physical harm. The Court held these are different types of injuries harming separate “primary rights,” and the first injury does not necessarily begin the statute of limitations period for the second injury even though they both arose out of the same wrongdoing. The Court specifically chose not to address the question at issue in this case: whether the first physical injury begins the statute of limitations period for all physical injuries.

After Grisham was decided, the Ninth Circuit Court of Appeals remanded the case back to the district court to reconsider in light of Grisham. The defendants moved for summary judgment, claiming that the plaintiff’s physical injuries in 1989 began the statutory period and that her claims arising from her lung cancer were therefore time-barred. The District Court granted summary judgment for the defendants on the grounds that her first physical injury started the statutory period for all physical injuries.

Pooshs appealed this decision to the Ninth Circuit. In Grisham, the California Supreme Court had explicitly chosen not to address whether one physical injury started the statutory period for all physical injuries arising out of the same wrongdoing, so when this exact question arose in this case, the Ninth Circuit certified the question to the California Supreme Court.

Issue

Does the onset of one physical injury always begin the statutory period for all physical injuries arising out of the same wrongdoing?

Holding

No. When a later discovered latent physical disease is separate and distinct from the earlier-discovered disease, the earlier disease does not trigger the statute of limitations period for a lawsuit based on the later disease.

Analysis

The Court examined the caselaw guiding statute of limitations accrual, and relied upon the policy underlying these cases to allow a new statutory period for a distinct latent disease.

First the Court looked to when the statutory period begins in other situations. Normally the period begins when the cause of action is complete: there has been a wrongdoing, a harm, and causation. (Norgart v. Upjohn Co., 21 Cal.4th 383, 397). However, when the extent of the injury is unclear, or the injury does not manifest until later, the Court has provided some flexibility for the plaintiff. Under the “discovery rule,” the cause of action does not accrue until the plaintiff discovers or has reason to discover the harm. (Norgart, 21 Cal.4th at 397). This allows a plaintiff to sue for a latent disease that manifests years after the wrongdoing; otherwise the plaintiff would always be time-barred and would never have a remedy for a latent disease.

The Court then considered its recent decision in Grisham, where it held that a plaintiff was not required to bring a claim of economic injury at the same time as a claim for physical injury, since physical and economic injuries affected different primary rights. The Court’s rationale in Grisham was the same as its rationale for the discovery rule: at the time of the claim for physical injury, the economic injury had not manifested itself so a claim based on economic injury would be too speculative, and unless the statutory period was flexible enough to account for unknown injuries, the plaintiff would be denied relief.

The Court then cited language from Fox discussing the underlying policy of allowing a later statute of limitations. “It would be contrary to public policy to require plaintiffs to file a lawsuit at a time when the evidence available to them failed to indicate a cause of action.” (Fox v. Ethicon Endo Surgery, Inc., (2005) 35 Cal.4th 797, 815) (internal citations omitted). The Court also repeated the court in Fox, indicating that the plaintiff would have so little factual support for this speculative injury that she would risk being sanctioned for a frivolous lawsuit.

Using this same underlying policy, the Court found that the statute of limitations for a separate physical injury should not necessarily begin at the time of the first physical injury. Such a strict statute of limitations would cause significant problems: it would be too difficult for a plaintiff to predict or win a claim for such a speculative injury. This would violate the policy underlying the discovery rule and Grisham, to prevent “the limitations period… [from] expir[ing] before a plaintiff has or should have learned of the latent injury and its cause.” (Buttram v. Owens Corning Fiberglas Corp., (1997) 16 Cal.4th 520, 531). In holding, the Court found that distinct physical injuries impacted distinct primary rights.

Note: this case is premised on the assumption that Pooshs actually suffered from separate physical injuries; whether the injuries were in fact separate will be an issue for the lower court to decide.

Tags

Cigarettes; Tobacco; Addiction; Diagnosis; Statute of Limitations; Lung Cancer; Physical Injury; Latent Disease; Speculative Injury; Qualitatively Different; Distinct; Primary Rights Theory; Phillip Morris; Pooshs

Related Cases
(Soliman v. Philip Morris Inc., (9th Cir. 2002) 311 F.3d 966).
(Grisham v. Philip Morris USA, Inc., (2007) 40 Cal. 4th 623).
(Norgart v. Upjohn Co., 21 Cal.4th 383, 397).
(Fox v. Ethicon Endo Surgery, Inc., (2005) 35 Cal.4th 797, 815).
(Buttram v. Owens Corning Fiberglas Corp., (1997) 16 Cal.4th 520, 531).

Annotation by Emma Laughlin

Jun 12, 2011
Annotated by samuel roberge

Parties:

  • Plaintiff: Nikki Pooshs
  • Defendants: Philip Morris USA, Inc.; R.J. Reynolds Tobacco Co.; Brown & Williamson Holdings, Inc; Lorillard Tobacco Co.; Hill & Knowlton, Inc.

Facts:

This case involves statutes of limitations, when they are triggered, and—more importantly—when they are not triggered.

Plaintiff, Nikki Pooshs suffered from three separate smoking-related diseases spanning a 14 year period. Specifically, she smoked for over three decades, quitting in 1987. Two years later, she was diagnosed with chronic obstructive pulmonary disease (“COPD”), caused by her smoking habit. However, she did not sue. A few years after that, she was diagnosed with periodontal disease, also linked to her smoking. Again, she did not sue. In 2003, the plaintiff was diagnosed with lung cancer. This time, she sued the above tobacco companies.

Her suit, filed in San Francisco Superior Court, alleged, among other things, that the defendants misled plaintiff about the dangers of cigarettes, concealed the additives in their tobacco, failed to warn her about the dangers of smoking, and falsely advertised.

Because plaintiff smoked for so long, and because her injuries occurred over 14 years, statutes of limitations issues would take center stage. The statute of limitations had lapsed on the COPD claim, as well as on the periodontal disease claim. However, the statute of limitations on her lung cancer claim had not elapsed when she filed suit in 2004. But all of her injuries arose from her smoking habit. Were these three injuries or one injury?

Procedural History

The first thing that the defendants did was remove the suit to the Northern District of California, due to diversity of citizenship. The defendants then filed a motion to dismiss based on an earlier Ninth Circuit case, Soliman v. Philip Morris, Inc. (linked below). In Soliman, tobacco companies won a motion to dismiss against a plaintiff who sued because he was addicted to cigarettes. The Soliman district court, applying California law, held that Soliman’s claim was barred by the statute of limitations, because he had constructive knowledge of tobacco’s addictive properties long before he brought suit. Consequently, Philip Morris and the other defendants argued to the district court that this suit fit within the four corners of Soliman. The district court agreed and granted the motion to dismiss.

Ms. Pooshs appealed to the Ninth Circuit. Meanwhile, the California Supreme Court heard another smoking case, Grisham v. Philip Morris USA, Inc. (linked below), involving statutes of limitations for smoking-related physical injuries versus smoking-related economic injuries. Accordingly, the Ninth Circuit held the instant case in abeyance while the California Supreme Court ruled on Grisham. When the Court ruled on Grisham, it concluded that physical injuries did not commence the statute of limitations for economic injuries. In other words, a physical injury’s statute of limitations will not bar a later-discovered economic injury.
Of course, the instant case involves a series of physical injuries, as opposed to physical and economic, but the Grisham Court nonetheless drew distinctions among injuries for purposes of analyzing statutes of limitations defenses. This concept would be crucial in deciding the instant case. In light of the Grisham ruling, the Ninth Circuit vacated the judgment of the district court and remanded Pooshs to the district court.

Back in district court, the defendants moved for summary judgment based on the fact that all of plaintiff’s injuries arose out of smoking. Allowing plaintiff to sue for the latest injury in a string of smoking-related injuries, defendants argued, would run contrary to the well-settled rule that the statute of limitations clock begins to tick when the plaintiff first suffers appreciable and actual harm, however uncertain in amount. See Norgart v. Upjohn Co. (linked below). The plaintiff, on the other hand, asserted that her three injuries were distinct, each containing a separate statute of limitations. The district court, once again, sided with the defendants. In reaching this conclusion, the court reasoned that plaintiff’s injuries were akin to a car accident causing a broken arm and leg. In that scenario, the car accident would begin the statute of limitations for both injuries.

Again, plaintiff appealed, and the Ninth Circuit certified the below question to the California Supreme Court. In certifying this question, the Ninth Circuit asked the California Supreme Court to assume that plaintiff’s three injuries were separate diseases, because the case was at the summary judgment stage, where factual inferences run in favor of the plaintiff (the non-moving party).

Issue:

When a plaintiff alleges that multiple, distinct personal injuries arise from smoking, does the earliest injury trigger the statute of limitations for all claims, including those based on later injury?

Holding:

No. A smoker suffering from separate and distinct diseases is not confined to the first disease’s statute of limitations.

Analysis

Generally speaking, a plaintiff must file suit within a certain period of time after a cause of action accrues. Cal Code Civil Procedure § 312 (linked below). Accrual occurs when the elements of the cause of action are met. The Court also noted that even if damages are uncertain, a plaintiff must usually sue once the cause of action elements are there. For example, someone negligently hit by a car must sue within the statute of limitations after the accident, even if he or she is not sure of the extent of injuries. All in all, much of the statutes of limitations doctrine favors the prompt bringing of claims.

That said, a plaintiff is excused from promptly bringing a claim if he or she did not have reason to suspect the injury. This exception is known as the discovery rule, and appears to be borrowed from the asbestos cases. For example, even though a plaintiff has inhaled asbestos fiber without protecting equipment, the statute of limitations does not run from that inhalation.

Against that doctrinal backdrop, the defendants argued that Ms. Pooshs knew that her earliest injury was due to smoking. Hence, any other smoking-related injuries merely increased the magnitude of her damages. And, as mentioned above, plaintiffs generally must bring claims when they have a cause of action, even if they are uncertain about the extent of damages.

However, the Court rejected these arguments. Instead, the Court extended Grisham to allow separate statutes of limitations for separate, later-discovered physical diseases. Recall how Grisham allowed two statutes of limitations for a physical injury and an economic injury when one is later-discovered. In extending Grisham, the Court reasoned that policy considerations favored allowing smokers to bring new claims for separate diseases. In particular, allowing smokers one statute of limitations would present to them the Hobson’s choice of filing a groundless claim, or waiting and risking forfeiture of all claims.

In sum, the Court deepened an exception to the accrual rule. Where the plaintiff suffers an injury (smoking) that manifests in separate and distinct diseases, the plaintiff is not required to bring suit at the first sign of injury. Rather, the plaintiff may sue for the latest disease even if the statute of limitations on the first disease has expired.

With that, the Court sent the case back to the Ninth Circuit, to review the district court’s granting of summary judgment for defendants.

Related Cases:

Pooshs v. Philip Morris USA, Inc.

Grisham v. Philip Morris USA, Inc.

Soliman v. Philip Morris Inc.

Norgart v. Upjohn Co.

California Code of Civil Procedure Section 312

Tags
Pooshs, Philip Morris, statute of limitations, accrual rule, discovery rule, COPD, periodontal disease, lung cancer, summary judgment, smoking, smokers, disease, appreciable and actual harm; limitation of actions.