Pooshs v. Philip Morris USA, Inc.
51 Cal. 4th 788
Cal.2011Background
- Plaintiff smoked from 1953 to 1987 and was diagnosed with COPD in 1989, knowing it was smoking-related.
- She was diagnosed with periodontal disease in 1990 or 1991, also claiming it was caused by smoking.
- In 2003 she sued for lung cancer and related injuries, triggering a statute of limitations analysis.
- The Ninth Circuit asked California Supreme Court two questions about accrual when multiple injuries arise from the same tobacco use.
- This Court limited its ruling to latent diseases and held that a later-discovered distinct disease does not toll the limitations for an earlier disease.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two distinct physical injuries can be separate primary rights. | Pooshs asserted COPD and periodontal disease are distinct from lung cancer. | Respondents argued multiple injuries from smoking constitute a single indivisible harm. | Yes; later latent disease can be a separate primary right. |
| Whether a later-discovered disease starts the statute of limitations for an earlier disease. | Each disease tolls independently under discovery rule if distinct. | Earlier injuries trigger the period for all subsequent injuries from the same wrongdoing. | The earlier disease does not trigger the period for the later disease when separate and distinct. |
| What is the governing accrual rule when injuries are latent and discovered at different times? | Latent disease discovery should postpone accrual for later injuries. | Accrual should be tied to the earliest known injury and its harms. | Discovery-rule analysis applies to separate diseases, not to bar later latent injuries. |
| Is Davies’s ‘appreciable and actual harm’ rule controlling for latent disease cases? | Davies should toll for later latent injuries. | Davies applies only to single-type injuries; here they are distinct latent diseases. | Davies does not control; Grisham clarifies the exception is limited to latent, separate injuries. |
| Whether Grisham governs when two latent diseases arise at different times from the same wrong. | Grisham supports separate accrual for distinct injuries. | Grisham does not decide for two same-type injuries; but supports separation when distinct. | Grisham applies to permit separate accrual for distinct latent diseases arising from smoking. |
Key Cases Cited
- Grisham v. Philip Morris U.S.A., Inc., 40 Cal.4th 623 (Cal. 2007) (latency of distinct injuries permits separate accrual for each)
- Davies v. Krasna, 14 Cal.3d 502 (Cal. 1975) (appreciable and actual harm governs single-type injury accrual)
- Soliman v. Philip Morris Inc., 311 F.3d 966 (9th Cir. 2002) (addiction not determinative; discovery implications debated)
- Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797 (Cal. 2005) (preserves discovery rule against cross-defendant actions)
- Norgart v. Upjohn Co., 21 Cal.4th 383 (Cal. 1999) (discovery rule limits accrual start)
- Jolly v. Eli Lilly & Co., 44 Cal.3d 1103 (Cal. 1988) (discovery of cause of action timing framework)