Thursday, April 9, 2009
Statute of limitations issue
Here is a new case from the Ninth Circuit Court of Appeals that is worth keeping an eye on. In Pooshs v. Phillip Morris USA, Inc., ___ F.3d ___ (9th Cir. April 1, 2009), Nikki Pooshs brought suit against the defendants based upon her terminal lung cancer, alleging a variety of theories, including negligence and product liability. Pooshs was diagnosed with lung cancer on January 31, 2003. However, she had been diagnosed with chronic obstructive pulmonary disease in 1989 and periodontal disease in 1990. She filed suit just under a year after she was diagnosed with lung cancer. The issue was whether the statute of limitations started to run on all claims for tobacco-related physical injuries in 1989 and 1990, in which case her claim for lung cancer would be barred. Although the California Supreme Court had alsready answered a series of certified questions from the Ninth Circuit concerning the application of California's statutes of limitations in tobacco-related cases in Grisham v. Philip Morris,151 P.3d 1151, 1161 (Cal. 2007), the court has not answered the specific question at issue in Pooshs. Thus, the Ninth Circuit in Pooshs certified the following issues to the California Supreme Court: (1) Under California law, when may two separate physical injuries arising out of the same wrongdoing be conceived of as invading two different primary rights? (2) 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? This note is an edited version of a comment originally posted by Michael Steenson over at the Products Liability Blog.