Tobacco Companies Suggest Smokers See Into the Future to Preserve Their Statute of Limitations
Twenty years ago Nikki Pooshs developed periodontal disease and COPD related to smoking. At the time, she decided to live with both of these conditions rather than pursue a remedy in the courts. According to Phillip Morris, now that she has developed lung cancer and wishes to sue for this far more serious–and potentially fatal–disease she is out of luck.
After the Federal District Court in San Francisco sided with the tobacco company’s interpretation of when the clock began ticking on a smoker’s time to file a case for lung cancer, the case was appealed to the Ninth Circuit U.S. Court of Appeals. Facing the question of exactly when a smoker’s time in which to file a case began to run, the Ninth Circuit asked the California Supreme Court for an interpretation of California law. The question asked, as rephrased by the California Supreme Court, was:
“When multiple distinct personal injuries allegedly arise from smoking tobacco, does the earliest injury trigger the statute of limitations for all claims, including those based on a later injury?”
As argued by our senior trial partner, Gilbert Purcell, to the Supreme Court Justices, we believe the answer is “no” and that big tobacco’s position is absurd under existing California law. Their position would require that you file a suit for cancer as soon as you are diagnosed with a less serious disease caused by use of the tobacco company’s products. In essence, your cancer would be entirely speculative, particularly if the first diseases you are diagnosed with would not predispose you to develop cancer at a later date. A lung cancer case where the cancer is not present and there is no clear indication of the potential threat for lung cancer to develop is in reality no case at all.
Under Phillip Morris’ interpretation of California’s “single injury rule,” you could never be compensated for cancer once you were diagnosed with a lesser disease years before the cancer presented itself. As we pointed out in the conclusion to our brief, “To hold otherwise would produce the Kafkaesque result that healthy plaintiffs would be required to file speculative lawsuits for cancer and other injuries that they did not have, and probably will not get, while terminally ill and suffering plaintiffs would be barred from reasonable compensation on the ground they sued too late.”
As expected, although we expressly asked Phillip Morris’ counsel, Daniel Collins of Munger, Tolles & Olson, during oral argument when they believed an individual diagnosed with smoking-induced cancer can timely file suit, they had no answer. Tobacco would like it to be never. As we told the court, make no mistake, if they vote with tobacco in answering the Ninth Circuit’s questions, there will be no individual smoker cancer cases in California.
It is Brayton Purcell’s hope and belief that our fight, in this case, will finally and unequivocally establish that the law in California protects the rights of its citizens to be justly compensated for cancer caused by tobacco as long as they sue for their injuries within the statutory time following the discovery of their cancer. They should not be forced, as the tobacco companies assert, to bring an earlier action for an injury that they don’t yet have, or be barred forever.
