Metropolitan News-Enterprise


Friday, February 16, 2007


Page 3


S.C. Rules Against Tobacco Company on Statute of Limitations Issue

State Law Does Not Presume Smokers are Aware That Smoking Is Addictive, Court Says


By Tina Bay, Staff Writer


For the purpose of determining when the limitation period began to run on a tobacco-related personal injury claim, California law does not presume that smokers are aware of the addictiveness or health hazards of smoking, the Supreme Court ruled yesterday.

Instead, the justices concluded, there is a general, rebuttable presumption that smokers suing over tobacco-related injuries have knowledge of the wrongful cause of their injury.

Writing for a unanimous court, Justice Carlos R. Moreno said that “if a plaintiff’s cause of action depends upon delayed discovery of his or her addiction to tobacco in order to be timely, he or she must plead facts showing an inability to have discovered that addiction, such as reasonable reliance on tobacco company misrepresentations.”

The ruling came in response to an inquiry by the Ninth U.S. Circuit Court of Appeals, which is reviewing the dismissal of the case of longtime smoker Leslie J. Grisham’s lawsuit against Philip Morris U.S.A., Inc.

Grisham, who began smoking around 1962 as a young teen, sued the tobacco company in March 2002 in the U.S. District Court for the Central District of California, within a year of being diagnosed with irreversible emphysema and chronic periodontitis.

Throughout her complaint, she alleged that her addiction to cigarettes was a key link in the causal chain leading to her physical injuries, and that she would not have started smoking if she had been aware of the extent to which tobacco was addictive harmful to her health.

Grisham’s suit included a claim under the state’s unfair competition and business practices statute for economic damages based on tobacco addiction.  Though the limitation period for an unfair competition claim is four years, Grisham alleged her unfair competition cause of action was tolled by the fact that she was unaware of her addiction to cigarettes until after learning she was ill with tobacco-related diseases.

She asserted that Philip Morris caused her addiction by inducing her to start smoking through a marketing scheme targeted to young people, and that the company induced young smokers to become addicted by fraudulently concealing the danger and addictive nature of cigarettes and manipulating nicotine levels.

The complaint alleged that Grisham attempted to quit smoking unsuccessfully on a number of occasions, including a period in 1993 and 1994 through participation in Nicotine Anonymous.

Philip Morris moved to dismiss all of Grisham’s claims, arguing they were presumptively barred by the Ninth Circuit’s decision in the case of Soliman v. Philip Morris, Inc. (9th Cir. 2002) 311 F.3d, U.S. The court in Soliman held a plaintiff could not avoid the statute of limitations by claiming ignorance of the risk of nicotine addiction because addiction was “a commonly known risk of smoking and is therefore a danger of which a plaintiff is presumed to be aware.”

Based on Soliman, U.S. District Judge Steven V. Wilson charged Grisham with constructive knowledge of her addiction-based injury, and pointed to her participation in Nicotine Anonymous as evidence that she was aware of her injury at least by 1993. In addition, the judge ruled that her causes of action that were based on physical injury were time-barred because they stemmed from the same tortious conduct that caused her addiction.

On appeal, the Ninth Circuit asked the California Supreme Court to clarify whether state law applied a special presumption of awareness that smoking cigarettes is addictive.  It also asked the justices whether a cause of action for physical injury due to tobacco addiction accrues when a smoker realizes he or she was addicted, even though he or she has not yet been diagnosed with an injury.

Rejecting Philip Morris’ view, the justices rejected Soliman to the extent it held there is a special presumption that smokers are aware that smoking is addictive or harmful.

Moreno explained that the state’s statute of limitations “generally has not recognized special presumptions, conclusive or otherwise, based on some presumed state of common knowledge.”

Moreover, he added, though knowledge of smoking addiction has been widespread, tobacco companies’ misrepresentations of the danger and addictiveness of smoking have also been found to be widespread.

He concluded Grisham’s complaint on its face failed to plead sufficient facts justifying the delay in discovering her smoking addiction, but noted her unfair competition claim might still survive based on a showing that Philip Morris’ wrongful business practices prevented her from discovering her addiction until recently.

As to the statute of limitations on her physical injury claims, the justices held they would not necessarily be time-barred if her addiction-based economic injury claim were barred.

Moreno wrote:

“…Grisham’s discovery of her alleged unfair competition cause of action and related causes of action for economic injury based on smoking addiction did not start the statute of limitations running on her tort causes of action based on later-discovered appreciable physical injury. Rather, these latter causes of action did not begin to accrue until the physical ailments themselves were, or reasonable should have been, discovered.”

Baum, Hedlund, Aristei & Guilford’s Michael L. Baum, who represented Grisham on appeal, told the MetNews the court’s ruling “unties [Wilson’s] hands,”  which the judge concluded were tied by the Soliman decision.

“It enables people to file suit from the date they have a diagnosis of a substantial injury, and the mere fact of being addicted does not bar the suit,” Baum said.

He noted the court recognized that Philip Morris cannot claim its cigarettes only cause harm to a small percentage of smokers, while at the same time asserting that a person should know tobacco is addictive.

“They can’t have it both ways,” he said.

Calls to the company’s appellate counsel were not returned.

The case is Grisham v. Philip Morris U.S.A., Inc., 07 S.O.S. 814.


Copyright 2007, Metropolitan News Company