Metropolitan News-Enterprise


Monday, September 29, 2014


Page 1


Court of Appeal Reinstates Action for Prenatal Injuries


By a MetNews Staff Writer


The Sixth District Court of Appeal has reinstated an action based on prenatal injuries caused by exposure of the plaintiff’s mother to hazardous and toxic chemicals at her workplace in the Silicon Valley during her pregnancy 20 years ago, holding that the applicable statute of limitation was tolled during the plaintiff’s minority.

Santa Clara Superior Court Judge Patricia M. Lucas had sustained a demurrer without leave to amend on the ground that the action was time-barred.

At issue was whether Code of Civil Procedure §340.4, relied upon by Lucas, did preclude the action, or whether §340.8 saved it. The former section sets a six-year time-bar on suits for prenatal injuries, without a tolling provision, while the latter establishes a two-year limit for actions “for injury or illness based upon exposure to a hazardous material or toxic substance,” but does yield to a statute that provides for tolling until the plaintiff reaches adulthood.

Three Opinions

The opinion, by Justice Miguel Márquez, was filed late Thursday and was certified for publication. Two other opinions by Márquez, dealing with the same two statutes of limitations, were also filed that day—one reinstating an action and one proclaiming the lawsuit unsustainable—but were not certified for publication.

The published opinion came in Nguyen v. Western Digital Corporation, 14 S.O.S. 4317.

According to the operative pleading, the plaintiff Hanh Nguyen was born Aug. 11, 1994, with various birth defects, including one affecting the brain, and the injury was ultimately traced to the mother’s exposure, during pregnancy, to chemicals used at the Santa Clara electronics manufacturing plant where she worked.

“In or after December 2008,” the pleading sets forth, members of the child’s family “heard on the radio that attorneys were investigating cases of birth defects caused by chemical exposures in the semiconductor industry.”

The action was filed in Santa Clara Superior Court in October of 2010, when Nguyen was 16.

It was timely, Márquez wrote, because §340.8, which is subject to tolling during minority, is the statute that governs. That’s so, he said, because it applies, by its own terms, to “any civil action for injury or illness based upon exposure to a hazardous material or toxic substance,” with the italicizing of the word “any” being his.

He emphasized:

“The use of the broad term ‘any’ in section 340.8, subdivision (a) indicates that the statute was intended to have a broad application and that it applies to any claim for ‘injury or illness based upon exposure to a hazardous material or toxic substance,’ regardless of the plaintiff’s age at the time of injury.

Enactment in 2004

One possible hitch was that §340.8 did not come into existence until Jan. 1, 2004, with the question being whether the cause of action was, by then, already time-barred under §340.4 (which was in effect at the time of Nguyen’s birth).

While §340.4 does not have a tolling provision, he said, it is subject to the rule that accrual of the cause of action does not commence until there is discovery that a cause of action exists—an awareness of the “injury and its negligent cause.”

It was alleged in the complaint that health care personnel for the employer had assured the mother that her exposure to chemicals had not been the cause of the child’s condition; she left her employment at the plant in 1998, and Márquez assumed a date of Dec. 31 of that year; that was, the jurist said, “the last possible date” when the mother “could have asked medical personnel” at the plant whether the child’s condition “could have been caused by exposure to hazardous chemicals” on the worksite.

“[E]ven though section 340.8 did not take effect until almost 10 years after Plaintiff was born, it applies in this case because the allegations of the third amended complaint support a claim of delayed accrual until December 31, 1998,” Márquez declared.

He went on to say:

“We hold that assuming delayed accrual until December 31, 1998, such that Hanh’s claims ‘were alive’ on January 1, 2004, when section 340.8 took effect, Hanh’s claims were then governed by section 340.8, and are not time-barred.”

Márquez indicated that discovery was not delayed until 2008 when the radio broadcast was heard because the mother’s inquiry to company health providers evidenced that a suspicion had surfaced as to a possible link between the chemicals and the birth defect.

He quoted—and editing by him—a 1988 California Supreme Court opinion saying:

“Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she [or he] must decide whether to file suit or sit on her [or his] rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she [or he] cannot wait for the facts to find her [or him].”

In Ovick v. National Semiconductor, the court reinstated an action by a Megan Ovick, who was born in 1990 with retinoblastoma, an eye cancer. Both parents had been exposed to toxic chemicals at their workplace, and asserted that they did not have any suspicion until 2009 that the exposure could be related to their child’s condition.

It was that year that their former co-workers, Debbie and Michael Studendorff, told them that their attorney was looking into a possible link between the exposure they had to the chemicals and their son’s retinoblastoma.

Under the delayed discovery rule, Márquez said, the action did not accrue until 2009. He wrote:

“The allegations of the third amended complaint show that Parents did not suspect Megan’s cancer was due to their exposure to hazardous chemicals at work. Instead, they suspected the condition was inheritable and asked Megan’s doctor whether they could pass it on to future children and Dr. Egbert recommended Parents undergo genetic testing. Nothing about these facts put Parents on notice that Megan’s cancer was wrongfully caused.”

The parents’ own cause of action for intentional and negligent infliction of emotional distress was not revived. Márquez said it was barred by the exclusive remedy provision of the Workers’ Compensation Act.

The case of Studendorff v. National Semiconductor was brought by Debbie Studendorff and her son, Christopher Studendorff. The judgment of dismissal was affirmed.

There was not delayed discovery because, under the averments in the pleading, the parents, at the time the diagnosis of their child’s condition was made in 1987 “suspected that Christopher’s injuries were caused by chemical exposure in their workplace,” Márquez said.

“We will disregard Plaintiffs’ conclusory allegations that Parents did not suspect wrongdoing before December 2008 because these allegations conflict with the allegations that in October 1987 they asked [defendant National Semiconductor] whether they had worked with or otherwise been exposed to hazardous chemicals. When a complaint contains both general allegations and specific allegations and a conflict or inconsistency exists between those allegations, the specific allegations control over inconsistent general allegations.”


Copyright 2014, Metropolitan News Company