The Lawletter Vol 35 No 9, June 17, 2011
In a products liability case against some cigarette manufacturers, the California Supreme Court recently addressed an interesting issue regarding the effect that two diseases suffered by the plaintiff had on the application of the statute of limitations. See Pooshs v. Philip Morris, USA, Inc., 250 P.3d 181 (Cal. 2011). The case reached the California Supreme Court on a certified question from the U.S. Court of Appeals for the Ninth Circuit.
The plaintiff had smoked from 1953 through 1987, when she quit. In 1989, she was diagnosed with chronic obstructive pulmonary disease ("COPD"), which she knew had been caused by smoking. She did not, however, sue the manufacturers of the cigarettes she had smoked, and the statute of limitations expired. In 1991, the plaintiff was diagnosed with periodontal disease, which she also knew had been caused by her smoking habit, but again she did not sue, and the statute of limitations lapsed. In 2003, the plaintiff was diagnosed with lung cancer, and she sued. The manufacturers raised the statute of limitations in defense, arguing that the plaintiff's cause of action had accrued in 1989, when she was diagnosed with COPD.
The court analyzed the effect of the statute of limitations from the premise that tobacco use over the same period can cause two separate physical injuries that are qualitatively different. The court determined that when a later-discovered latent disease is separate and distinct from an earlier-discovered disease caused by the same tobacco use, the earlier disease does not trigger the statute of limitations for a lawsuit based upon the later-diagnosed disease. In so holding, the court noted that the discovery rule is the most important exception to the general rule that a plaintiff must file his or her action within the period set forth in the governing statute of limitations. For purposes of the discovery rule, a plaintiff discovers a cause of action when he or she has reason to suspect a factual basis for the action. The court rejected the defendants' argument that the plaintiff's discovery that she suffered from COPD as a result of her cigarette smoking had triggered, as a matter of law, the statute of limitations with respect to a claim based upon the plaintiff's lung cancer.
In reaching this conclusion, the court found that it was critical to consider the posture of the case in the federal district court from which the matter had made its way to the California Supreme Court. The defendants had filed a motion for summary judgment in the federal district court, based upon their statute of limitations defense. In that regard, the California Supreme Court observed that the plaintiff had alleged that her lung cancer was a separate disease from her earlier-discovered COPD. The court stated that it was not its role to decide, or even to question, the factual validity of the plaintiff's assertion. Rather, the court said that its function was to determine, as a legal matter, whether the plaintiff's assertion had any relevance under California law for purposes of applying the statute of limitations. The court answered that query in the affirmative, holding that two physical injuries that constitute separate diseases and that can become manifest at different times can be considered qualitatively different for purposes of applying the statute of limitations. Hence, the plaintiff's knowledge that she suffered from COPD did not trigger the statute of limitations for her lawsuit based upon her later-diagnosed lung cancer.