15 Chap. L. Rev. 707 (No PDF)
Chapman Law Review
DIGEST: POOSHS V. PHILIP MORRIS USA, INC.
James V. Bilek
Copyright (c) 2012 Chapman Law Review; James V. Bilek
When more than one kind of injury of a particular type (physical or economic) allegedly arise from the same actions of a defendant, does the first injury trigger the statute of limitations for the second injury?
In 2004, Plaintiff, Nikki Pooshs, sued several tobacco companies after she was diagnosed with lung cancer. Plaintiff smoked cigarettes from 1953 through 1987, and during that period she was unaware of the many dangerous qualities of cigarettes. She asserted thirteen causes of action, essentially amounting to allegations that the defendants concealed from her the dangers of tobacco, including its addictive qualities. The defendants removed the case to federal court and then filed motions to dismiss based on a prior Ninth Circuit decision, Soliman v. Philip Morris Inc. In Soliman, the plaintiff, a smoker since the 1960s, who claimed to be unaware of the addictive nature of nicotine until 1999, sued multiple tobacco companies in 2000. The Ninth Circuit dismissed the claim because under California law individuals are presumed “‘to know that smoking causes addiction”’ and, as such, the plaintiff was constructively aware of his injuries long before 2000.
Aware of the Soliman decision, the defendants in this matter uncovered information that Plaintiff was diagnosed in 1989 with chronic obstructive pulmonary disease (COPD), a disease that she knew was caused by smoking. Furthermore, she was diagnosed in 1990 with periodontal disease, which she also knew was caused by smoking. Despite this knowledge, Plaintiff chose not to sue for either of these injuries. Defendants moved for summary judgment alleging that Plaintiff’s 1989 and 1990 injuries triggered the statute of limitations for any claims against the tobacco companies, and that Plaintiff cannot now sue alleging her injuries were worse than initially thought. Plaintiff responded by alleging that her COPD, periodontal disease, and lung cancer were actually the basis for three separate causes of action. The district court found for the defendants, holding that Plaintiff’s three “injuries were “merely different ways in which she was damaged by a single alleged wrong.” An appeal to the Ninth Circuit followed which certified to the Supreme Court of California for clarification on how to apply the statute of limitations to various injuries under California law.
In California, a plaintiff must file his or her various causes of action within certain time periods, which are initiated when the causes of action accrue. Generally, a cause of action accrues when its elements are met, namely, harm, causation, and wrongdoing. Even when a plaintiff is uncertain as to the exact amount of damages that will arise from an alleged injury, the fact of injury is enough to start the statute of limitations. However, under the “discovery rule,” accrual is delayed “until the plaintiff ‘discovers, or has reason to discover, the cause of action.”’ A plaintiff is deemed to so discover once a factual basis for the claim may be reasonably suspected.
Defendant here argues that Plaintiff’s cause of action must have accrued in either 1989 or 1990, when Plaintiff was first diagnosed with COPD and periodontal disease, respectively. That Plaintiff was later diagnosed with lung cancer merely evidences the uncertainty in Plaintiff’s damages, which, according to defendants, is irrelevant to the running of the statute of limitations.
In assessing the proper standard to apply, the court first distinguished precedent cases. In Davies v. Krasna, the plaintiff, in 1951, conveyed an idea for a theatrical play to an individual who later, in breach of confidentiality, turned the idea into a profitable production. Although the plaintiff was aware in 1955 of this breach, plaintiff chose not to sue until 1958 when it became more obvious that the production would produce a large amount of profit. The court held the cause of action accrued in 1955, although damages were yet to be definitively ascertained, as “neither uncertainty as to the amount of damages nor difficulty in proving damages tolls the period of limitations.” However, Davies involved only one distinct injury (breach of confidentiality), and did not resolve the question of whether accrual of one type of injury would trigger the statute for an entirely different injury.
In Grisham v. Philip Morris U.S.A., Inc., a plaintiff sued a tobacco company alleging both economic and physical injuries. The issue in Grisham was whether the accrual of one type of injury (economic) necessarily also began the running of the statute of limitations for another type of injury (physical). The court held it does not as “the ‘appreciable and actual harm’ rule of Davies . . . [is] limited to cases involving a single type of injury.” The court stressed the reasonableness of this conclusion by stating that otherwise, a plaintiff would be forced to sue for all possible causes of action, even without factual support, which would likely subject a plaintiff’s attorney to sanctions for filing unmeritorious claims. Thus, in Grisham, the court refused to apply a rule that would force cigarette smokers to file all claims, regardless of factual support, as soon as they realize that they had a single cause of action against tobacco companies.
What Grisham did not decide, however, is when accrual occurs for two physical injuries that are alleged to be entirely distinct. Assuming that COPD, periodontal disease, and lung cancer are three separate diseases, in that none is the cause of the other, the court held that although Plaintiff was aware of the COPD and periodontal disease in 1989 and 1990, respectively, as those are “‘qualitatively different”’ than lung cancer, the accrual of the 1989 and 1990 injuries did not also begin the statute of limitations for the lung cancer cause of action. Just as it would be unfair to require a plaintiff to sue for all possible physical injuries that may be related to an economic injury, as in Grisham, it is unreasonable to require a plaintiff who in 1989 and 1990 suffered an injury from smoking that is not lung cancer, to also at that time sue for injuries arising out of lung cancer damages. A contrary conclusion would run counter to the purpose of the discovery rule, which is “to prevent the limitations period . . . [from] expir [ing] before a plaintiff has or should have learned of the latent injury and its cause.”
The holding in Pooshs will likely allow a greater number of claims to now be filed against cigarette and tobacco companies. Prior to Pooshs, a plaintiff could not sue a defendant where different injuries of the same type arose from the same conduct of a defendant. As stated, this is no longer the case. However, there is still one possible avenue for the tobacco and cigarette companies to pursue in a case like Pooshs. In reaching its holding, the court stressed that the plaintiff’s COPD, periodontal disease, and lung cancer were separate and distinct injuries; hinting that if one were the cause of the other or related in a closer fashion, a contrary conclusion may have been reached. Thus, cigarette and tobacco companies may now find it wise not to attack a plaintiff’s claim on statute of limitations ground, but instead to take a medical route to the claim and establish that the plaintiff’s injuries are not separate and distinct.