Kennard

SACRAMENTO, Calif. (Legal Newsline) - The California Supreme Court says two physical injuries can, in some circumstances, be considered "qualitatively different" for purposes of determining when the applicable statute of limitations period begins to run.

The Court was asked by the U.S. Court of Appeals for the Ninth Circuit to answer two questions:

- Under California law, when may two separate physical injuries arising out of the same wrongdoing be conceived of as invading two different primary rights?

- Under California law, may two separate physical injuries -- both caused by a plaintiff's use of tobacco -- be considered "qualitatively different" for the purposes of determining when the applicable statute of limitations begins to run?

The plaintiff in the case, Nikki Pooshs, was a cigarette smoker for 35 years, from 1953 to 1987. In 1989, she was diagnosed with chronic obstructive pulmonary disease, or COPD, which she knew was caused by her smoking habit. However, 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, Pooshs was diagnosed with periodontal disease, which she also knew was caused by her smoking habit. Again, she did not sue the various cigarette manufacturers, and the statutory period for doing so elapsed.

Then, in 2003, she was diagnosed with lung cancer. This time, she sued.

The California Supreme Court, in its opinion filed Thursday, concluded 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.

In this case, Pooshs asserted 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.

The Court, in its 20-page opinion written by Justice Joyce L. Kennard, said it wasn't its role to decide or even question the factual validity of the plaintiff's assertion.

"Rather, our role is to determine, as a legal matter, whether plaintiff's assertion has any relevance under California law for purposes of applying the statute of limitations, for that is the question that the Ninth Circuit asked us to decide," it wrote.

Pointing to previous decisions, the Court said no good reason appears to require Pooshs, 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 it might later arise.

The Court said it does not matter that both COPD and the cancer affect the lungs.

"The significant point is that the later-occurring disease (lung cancer) is, according to plaintiff's offer of proof, a disease that is separate and distinct from the earlier-occurring disease (COPD)," it wrote. "Therefore, under the logic of our decision in Grisham, supra, 40 Cal.4th 623, the statute of limitations bar can apply to one disease without applying to the other."

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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