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.
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
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.
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
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
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 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.
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.)
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, plaintiff had suffered actual harm, her damages were not merely nominal,
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.
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 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
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 [27 Cal.Rptr.3d 661, 110 P.3d 914] (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
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 economic and the other was physical; here, the Ninth Circuit has asked us to assume that the injuries are three separate diseases. (See p. 793, 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 [91 L.Ed.2d 202, 106 S.Ct. 2505]; Celotex Corp. v. Catrett (1986) 477 U.S. 317, 322 [91 L.Ed.2d 265, 106 S.Ct. 2548].) 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
As already discussed (see pp. 800-801, 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 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.)
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.
Cantil-Sakauye, C. J., Baxter, J., Werdegar, J., Chin, J., Corrigan, J., and Suzukawa, J.,
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 for but one claim for damages." (Miller v. Lakeside Village Condominium Assn. (1991) 1 Cal.App.4th 1611, 1622 [2 Cal.Rptr.2d 796]; see 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 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.)