Metropolitan News-Enterprise


Monday, May 16, 2016


Page 1


For Prenatal Injuries:

Delayed-Discovery Rule in Toxics Cases Inapplicable—C.A.




A statute applying the delayed-discovery rule to claims for exposure to toxic substances or hazardous materials does not apply to claims for prenatal injuries, the Court of Appeal for this district ruled Friday.

Div. Eight, in a 2-1 decision, affirmed Los Angeles Superior Court Judge Frederick Shaller’s order dismissing an action against Sony Electronics, Inc. as time-barred. The panel held that Code of Civil Procedure §340.8—which allows a plaintiff to sue up to two years from date of discovery of an injury, or of the physical cause of the injury, or of sufficient facts to put a reasonable person on inquiry notice, and which is tolled during the plaintiff’s minority—did not apply.  

The court instead applied §340.4, which limits the time in which to sue for birth and prenatal injuries to six years, and is not tolled during minority. The author of the opinion, Justice Elizabeth Grimes, acknowledged that the ruling conflicts with the Sixth District decision in Nguyen v. Western Digital Corporation (2014) 229 Cal.App.4th 1522, which applied §340.8 in finding a similar claim to be timely.

Multiple Birth Defects

The suit against Sony was brought by Cheryl Lopez in 2012 on behalf of her daughter Dominique, who recently turned 17. Dominique suffers from multiple birth defects and from developmental delays, which her mother attributes to exposure to toxics while working for Sony during her pregnancy.

Cheryl Lopez worked at a Sony facility in San Diego from 1978 to 2000. Her complaint seeks to hold the company liable for negligence, strict liability, willful misconduct and intentional misrepresentation.

Shaller granted Sony’s motion for summary judgment on statute of limitations grounds in April 2014, six months before the Sixth District decided Nguyen.

Grimes cited legislative history in concluding that the intent of §340.8, which was enacted in 2004, was to codify that existing law relating to delayed discovery applied to toxics cases and disapprove contrary language in one of several Court of Appeal decisions on the subject, by adding specific language to the effect that media coverage alone would not put a potential plaintiff on notice of a claim.

Old Statute

Given that the six-year limitations period for prenatal injury claims had been on the books for six decades before §340.8 was enacted, and there was no reference to such claims in the text or legislative history of the bill, it must be concluded that there was no intent to change the prior law as to such claims, Grimes wrote.

She noted that the statute includes a subdivision reading:

“Nothing in this section shall be construed to limit, abrogate, or change the law in effect on the effective date of this section with respect to actions not based upon exposure to a hazardous material or toxic substance.”

The plaintiff, she said, was arguing “that we read subdivision (d)…to mean the opposite of what it says.”

Presiding Justice Tricia Bigelow concurred in the opinion, while Justice Laurence Rubin dissented and argued that Justice Miguel Márquez was right in his Nguyen opinion.

Rubin wrote:

“My disagreement with the majority is in the final conclusion that it reaches: Even though section 340.8 deals specifically with toxic torts and was enacted after section 340.4, section 340.8 does not mean what it says and is trumped by the shorter statute of limitations of section 340.4 for prenatal and birth injuries. This is so even though, as the majority observes, section 340.4 has its genesis in the 19th century when claims for toxic torts were generally unknown.”

University of San Diego law professor Shaun Martin, discussing the case on his appellate blog Friday, advocated that the Supreme Court review the decision and said the odds of its doing so were “approximately 100 percent,” in light of the seriousness of the issue and the intracourt conflict.

“Whether, and when, a child should be able to sue for birth defects shouldn’t depend on what panel s/he happens to draw on appeal,” he wrote.

Attorneys on appeal were Michael B. Gurien of Waters, Kraus & Paul for the plaintiff and William A. Bossen of Musck, Peeler & Garrett for the defendant.

The case is Lopez v. Sony Electronics, Inc., 16 S.O.S. 2408.


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