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Nikki Pooshs v. Philip Morris Usa

May 5, 2011

NIKKI POOSHS, PLAINTIFF AND APPELLANT,
v.
PHILIP MORRIS USA, INC., ET AL., DEFENDANTS AND RESPONDENTS.



9th Cir. No. 08-16338 N.D. Cal. No. 3:04-cv-01221-PJH

The opinion of the court was delivered by: Kennard, J.

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.*fn1 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 . . . [i]t is uncontested that the etiology for lung cancer is distinct from the etiology for COPD and periodontal disease."*fn2 (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.) 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.*fn3 (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 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 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). ...


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