Trial Court Santa Clara County Superior Court No.: 1-10-CV-185748. Trial Judge The Honorable Patricia M. Lucas
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Waters Kraus & Paul and Michael B. Gurien for Plaintiff and Appellant.
Arnold & Porter and Maurice A. Leiter for Defendant and Respondent.
In this case, we determine which statute of limitations applies to an action alleging pre-birth injuries due to exposure to hazardous materials or toxic substances that occurred more than 20 years ago. Plaintiff Hanh Nguyen (sometimes Plaintiff) contends that such claims are subject to the two-year limitations period in Code of Civil Procedure section 340.8 for actions “for injury or illness based upon exposure to a hazardous material or toxic substance, ” which she asserts is subject to tolling for minority or mental incapacity. (Unless otherwise stated, all further statutory references are to the Code of Civil Procedure.) Defendant Western Digital Corporation (WDC) argues that such claims are subject to the six-year limitations period in section 340.4 for actions based on birth and pre-birth injuries, which is not subject to tolling for minority or mental incapacity.
Plaintiff was born with agenesis of the corpus callosum (a birth defect affecting the structure of the brain) and other birth defects. She alleges that her birth defects were caused by her mother’s occupational exposure and her (Hanh’s) in utero exposure to hazardous and toxic chemicals at WDC. Plaintiff also alleges that her parents did not know that her birth defects were caused by exposure to hazardous chemicals at WDC until December 2008, when family members heard on the radio that Plaintiff’s attorneys were investigating cases of birth defects caused by chemical exposures in the semiconductor industry.
Plaintiff appeals from a judgment of dismissal after the trial court sustained WDC’s demurrer to the third amended complaint without leave to amend on the ground that the action was barred by the statute of limitations for pre-birth
Injuries in section 340.4. Plaintiff contends the applicable statute of limitations is section 340.8, the limitations period for causes of action based on exposure to hazardous substances (which is subject to tolling for minority and mental incapacity) and that the trial court erred when it applied the limitations period for pre-birth injuries in section 340.4 (which is not subject to such tolling). Plaintiff also contends that (1) she has pleaded sufficient facts to support delayed accrual of her claims until December 2008, or alternatively, until at least December 1998; and (2) WDC is equitably estopped from relying on a statute of limitations defense because it knew the chemicals used in its facility caused reproductive harm, and because it fraudulently concealed the causal connection between the chemical exposure and Plaintiff’s injuries.
Construing both sections 340.4 and 340.8, we hold that claims based on birth or pre-birth injuries that are due to exposure to hazardous materials or toxic substances are subject to the limitations period in section 340.8. We also hold that even though section 340.8 did not take effect until almost 10 years after Plaintiff was born, it applies in this case because the allegations of the third amended complaint support a claim of delayed accrual until December 31, 1998. And since Plaintiff’s claims did not accrue until that date, they were not barred by the six-year limitations period in section 340.4 (pre-birth injuries) on January 1, 2004, when section 340.8 (toxic exposures) went into effect. Moreover, since Plaintiff’s claims were subject to the limitations period in section 340.8 when it took effect, she is entitled to the tolling for minority that applies to section 340.8 claims. Thus, her action filed on October 25, 2010, when she was 16 years old, was timely. We will therefore reverse the judgment and direct the trial court to vacate its previous order and enter a new order overruling the demurrer to Plaintiff’s third amended complaint.
Hanh Nguyen was born on August 11, 1994. She was 16 years old when she filed her original complaint in October 2010 in Santa Clara County Superior Court. In the original and the first amend complaint, Hanh was represented by her mother and guardian ad litem, Lan Tran. Hanh’s older
sister, Kim Nguyen, appeared as guardian ad litem in the second and third amended complaints. Hanh’s father, Liem Nguyen, was named as a plaintiff in earlier complaints, but is not a party to the third amended complaint. (For clarity, and meaning no disrespect, we will refer to the members of the Nguyen and Tran family by their first names. Sometimes, we will refer to Lan Tran and Liem Nguyen jointly as “Parents.” We will refer to Hanh and Liem jointly as “Plaintiffs” when discussing the pleadings that named both of them as plaintiffs.)
Hanh’s mother, Lan, worked for WDC at its Santa Clara manufacturing facility from approximately 1987 until 1998. Lan worked in “clean rooms” and elsewhere at WDC “where she used and/or was exposed for prolonged periods to teratogenic,  and reproductively toxic chemicals” that WDC used to assemble and to manufacture its products. “Teratogenic chemicals are known to cause severe harm to unborn children.” Lan worked at WDC while she was pregnant with Hanh. During Lan’s pregnancy, Hanh “was ‘present’ in ‘clean rooms’ and elsewhere” at WDC “where she was exposed during the crucial months of growth in her mother’s womb, for prolonged periods to teratogenic and reproductively toxic chemicals.”
“Upon information and belief, ” the third amended complaint lists chemicals or classes of chemicals that were commonly used in the semiconductor industry. “Due to the nature of semiconductor manufacturing, multiple chemicals are used at the same time and in the same space, such that exposure to individual chemical substances cannot be separated or singled out in a meaningful way; the impact of exposure must take into account both individual chemicals and... exposure to numerous chemicals simultaneously.”
The third amended complaint alleges that the “ ‘clean rooms’ ” were only clean for WDC’s products, not its employees. There was no ventilation system to protect workers from inhaling fumes emitted by the chemicals, which remained in the recirculated air in the clean rooms. And the protective clothing the employees wore protected the products from the workers and their clothing, but it did not protect the workers from the chemicals. Lan absorbed chemicals that were in the workplace into her body through her skin and by inhalation. The exposure to these chemicals alone or in combination caused Hanh to sustain “birth defects” and “severe and permanent injuries,
including... agenesis of the corpus callosum.” The chemicals listed in the complaint were a substantial factor in causing Hanh’s injuries.
Based on the scientific literature and government bulletins that were available beginning in the early 1980’s, WDC knew or should have known of the reproductively toxic nature of the chemicals used in its facility. In the 1980’s, chemical manufacturers warned semiconductor companies about the toxicity associated with their chemical products. The third amended complaint includes citations to several journal articles, scientific symposiums and presentations, and government bulletins that were published between 1981 and 1996 regarding animal studies on chemicals used in the semiconductor industry. The complaint describes: (1) a 1981 article in the journal Toxicology, which reported that toxicology studies on mice had “demonstrated that ethylene glycol monomethyl ether, ..., caused an increased incidence of fetal malformations and fetal death”; (2) a 1982 study done by the National Institute for Occupational Safety and Health on the effects of 2-ethoxyethanol on pregnant rats that allegedly demonstrated a relationship between exposure to the chemical and miscarriages, skeletal and cardiovascular malformations, and fetal death, the results of which were published in the journal Drug and Chemical Toxicology; (3) a 1983 article in the journal Toxicology describing “the adverse effects of ethylene glycol ethers on the male reproductive system”; and (4) a 1984 article that was a “compilation of over forty scholarly articles addressing the toxicity and reproductive hazards associated with certain glycol ethers, ” which was published in Environmental Health Perspectives.
The third amended complaint also describes three epidemiological studies that examined the incidence of miscarriage among women who worked in the semiconductor industry. These studies include: (1) a 1988 study involving employees at Digital Equipment Corporation, the results of which were reported in the Journal of Occupational Medicine; (2) a 1989 study done at the University of California, Davis on behalf of the Semiconductor Industry Association (SIA) that “evaluated thousands of workers at 14 different companies nationwide” and “generated 11 papers published in the peer reviewed medical literature, ” including three articles in the American Journal of Industrial Medicine; and (3) a study done at Johns Hopkins University on behalf of IBM Corporation, the results of which were published in Occupational Hygiene and the American Journal of Epidemiology in 1996.
In 1983 and again in 1994, the National Institute for Occupational Safety and Health (NIOSH) sponsored two symposiums that included presentations
on the reproductive effects of glycol ethers. Based on animal studies, a May 1983 NIOSH bulletin recommended that two of the chemicals Hanh’s mother was exposed to (2-methoxyethanol and 2-ethoxyethanol) “be regarded in the workplace as having the potential to cause adverse reproductive effects in male and female workers.” A 1982 alert from the California Hazard Evaluation System and Information Service (HESIS) warned that two glycol ethers were known to cause birth defects. HESIS fact sheets issued in 1987 and 1989 “explained that low-level exposure to certain glycol ethers can lead to birth defects.” Those fact sheets also recommended methods for reducing worker exposure. WDC was aware of these studies, articles, bulletins, and alerts before Hanh was conceived. However, none of this information was known to—or even accessible to—Parents before December 2008.
As a semiconductor manufacturer, WDC “knew or should have known of the hazardous nature of the... chemicals and processes used in the ‘clean rooms’ and other areas of its... facility.” “[A]s a matter of good occupational medicine practice, ” WDC had a duty to investigate and understand the reproductive hazards associated with each substance used, and substitute safer substances or provide personal protective equipment and engineering controls. WDC had a statutory duty to disclose material facts relating to the toxicity of many of the chemicals used in its workplace under California's Hazardous Substances Information and Training Act (Lab. Code, § 6360 et seq.; see Cal. Code Regs., tit. 8, § 339). WDC “concealed and/or misrepresented the... reproductively toxic nature of chemicals used [to manufacture] its products, ” and “failed to warn... its employees” of the toxic nature of the chemicals used. WDC also failed to disclose that very low levels of exposure were reproductively toxic. WDC and other semiconductor manufacturers “affirmatively misled and withheld relevant information from their employees and other persons present at their facilities including employees’ unborn children by disregarding and/or downplaying the adverse reproductive, developmental and long-term health implications of multiple exposures to” these chemicals.
“On information and belief, ” Plaintiff alleges that WDC offered health services to its employees, including Lan. These health services included “a detailed review of [her] medical and reproductive history and industrial hygiene assessment and monitoring.” The health care providers included “nurses and physicians affiliated with and/or employed by” WDC who concealed and suppressed material facts from Lan regarding the “reproductively toxic” nature of the chemicals she worked with and “misrepresented by omission that [Lan’s] workplace was safe.”
The third amended complaint alleges that Parents “undertook a reasonable investigation to discover the cause of Hanh’s injuries.” Parents asked Hanh’s treating physicians what the cause was and her doctors said they “were unaware of any cause.” Parents had Hanh undergo a “lymphocyte karyotyping study, which did not reveal a genetic cause of the hydrocephalus or absent corpus collosum [sic].” Hanh underwent “other medical tests, including CT scans, MRI[’]s, and electroencephalograms, none of which determined the cause of her injuries.” “At no time prior to December 2008, did any” of Hanh’s doctors “ever inform, advise, suggest or otherwise imply that parental occupational exposure... was a potential contributing cause of [Hanh’s] injuries and birth defects. Parents reasonably relied on the skill and judgment of Hanh’s doctors and had “no reason to further investigate, inquire into or suspect any occupational cause of [Hanh’s] condition....”
The third amended complaint also alleges that “In or after December 2008, ” when Hanh was 14 years old, unnamed members of her family “heard on the radio that attorneys were investigating cases of birth defects caused by chemical exposures in the semiconductor industry.” Lan and Kim contacted the attorneys and retained them to investigate whether Hanh’s injuries “were caused by parental occupational exposure to... toxic chemicals” at WDC. Through that investigation, Parents “learned for the first time, in or after December 2008, ” that (1) the manufacturing chemicals at WDC were “reproductively toxic”; (2) Lan’s “exposure levels were sufficiently high to cause... birth defects”; and (3) Hanh’s injuries were caused by chemical exposures at WDC. “At no time prior to retaining [counsel], ” did Parents or Kim suspect that Hanh’s injuries were caused by chemical exposures at WDC.
Pleadings Filed in Alameda and Orange Counties
In December 2009, Hanh (by and through her guardian ad litem Lan) and Liem filed a complaint in Alameda County. WDC demurred to the original Alameda County complaint on a variety of grounds, including that it was barred by the statute of limitations. WDC also filed a motion to transfer the action to Orange County since its principal place of business was in Orange County. Instead of opposing the demurrer, Plaintiffs filed a first amended complaint.
The court granted the motion to transfer and the case was transferred to Orange County in May 2010. WDC demurred to the first amended complaint in Orange County. Three days earlier, Plaintiffs had dismissed the entire action.
First Pleading Filed in Santa Clara County and Demurrer to that Complaint
Hanh and Liem filed their original Santa Clara County complaint on October 25, 2010. The only named defendant was WDC. The complaint contained causes of action on behalf of Hanh for negligence, strict liability, willful misconduct, misrepresentation, premises liability, and products liability. It also contained causes of action on behalf of Liem for negligent and intentional infliction of emotional distress.
WDC filed a demurrer, which argued that the complaint failed to state a cause of action because it failed to specify the chemicals at issue and failed on other grounds. WDC did not rely on a statute of limitations defense at that time. Plaintiffs opposed the demurrer. Lan filed an application to be appointed Hanh’s guardian ad litem, which alleged that Hanh sustained “[p]ersonal injuries and mental disability as a result of [her] mother’s exposure to chemicals during and prior to pregnancy” and was “mentally disabled, ” “unable to care for herself, ” and “depends on her parents 100%.”
The court sustained the demurrer with leave to amend on the grounds that (1) the complaint did not specify the chemicals that caused Hanh’s injuries; (2) the cause of action for misrepresentation did not specifically plead fraud; and (3) Liem had failed to state necessary elements to support his emotional distress claims.
First Amended Complaint and Demurrer to First Amended Complaint
In July 2011, Plaintiffs filed their first amended complaint, which contained the same causes of action as the original complaint. WDC demurred again, raising the same issues as before, this time including its statute of limitations defenses. WDC argued that Hanh’s claims were barred by the six-year limitations period in section 340.4 for birth and pre-birth injuries because the complaint was not filed within six years of Hanh’s birth. With respect to Liem’s claims for emotional distress, WDC argued that those claims were barred by the two-year limitations period in section 335.1. WDC also argued that Plaintiffs had failed to plead sufficient facts to demonstrate delayed accrual under the discovery rule.
In opposition, Hanh argued that her claims were subject to the two-year limitations period in section 340.8 for injuries caused by exposure to hazardous materials, not the limitations ...