Unless you are one of those fictional big tobacco executives portrayed in anti-tobacco television commercials, you know that tobacco has been linked to a number of diseases – cancer, emphysema, and heart disease, to name a few. Unfortunately for many tobacco users, these diseases are not exclusive and often do not coordinate among themselves as to when to manifest. As a result, tobacco users plaintiffs, when opting to litigate their usage, face a dilemma. Should they sue cigarette manufacturers upon the first onset of disease or wait for a potentially more dangerous side effect? Recently, the California Supreme Court weighed in with its solution.
In Pooshs v. Philip Morris USA, Inc., No. S172303 (Cal. May 5, 2011), the plaintiff sued a number of cigarette manufacturers in California state court after being diagnosed with lung cancer in 2003. Previously, the plaintiff had been diagnosed with chronic obstructive pulmonary disease (COPD) and periodontal disease in 1989 and 1991, respectively, but chose not to pursue a claim at those times. After the state case was removed to federal court, the judge dismissed the plaintiff’s claims on statute of limitations grounds. Undeterred, the plaintiff appealed to the Ninth Circuit Court of Appeals, which in turn guidance from the California Supreme Court as to the application of the statute of limitations when separate diseases arise at different times from the same alleged wrongdoing.
The defendant manufacturers argued that allowing the plaintiff to bring her claim under these circumstances would violate the standard that a statute of limitations begins to run when the plaintiff suffers “appreciable and actual harm, however uncertain in amount.” The plaintiff argued against the application of that well-settled rule and contended that each of her three ailments was the basis of a distinct primary right. The California Supreme Court ultimately agreed with the plaintiff, holding that “two physical injuries . . . can, in some circumstances, be considered ‘qualitatively different’ . . .” for statute of limitations purposes.
On one hand, the Court’s holding is logical. Each of the plaintiff’s diseases is separate and distinct from the other. It would seem a bit ridiculous to require a plaintiff to sue for potential lung cancer when her only known damages are COPD or periodontal disease. Imagine the flood of litigation if the Court were to make such a requirement. On the other hand, this holding shakes the foundation of the law school paradigm “one tort, one claim for damages.” This is not a case where a plaintiff suffered property damage and later had a claim for personal injury arising out of the same event. Rather, the plaintiff has suffered personal injury – albeit three separate and distinct diseases – arising out of the same cigarette smoking.
While we here at
Abnormal Use do not intend to make light of the seriousness of the damage caused by tobacco use, we must admit the Court’s holding conjures up images of a litigation-themed
Press Your Luck. The opinion did not suggest that the plaintiff intentionally delayed pursuing litigation until she contracted lung cancer, but apparently tobacco users in California now have that option. Hopefully, they won’t land on any whammies while they wait.
