Pooshs v. Phillip Morris USA, Inc.

Citations: 561 F.3d 964; 2009 U.S. App. LEXIS 6908; 2009 WL 839311Docket: 08-16338

Court: Court of Appeals for the Ninth Circuit; April 1, 2009; Federal Appellate Court

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Nikki Pooshs is the plaintiff-appellant in a case against multiple defendants, including major tobacco companies and related entities. The United States Court of Appeals for the Ninth Circuit has decided to certify specific legal questions to the California Supreme Court, as the answers are critical to the appeal's outcome and lack clear precedent under California law. The appellate court has stayed all further proceedings in the case pending the California Supreme Court's response, which will dictate the subsequent actions. The court also emphasized the urgent nature of the appeal due to the appellant's terminal illness, requesting an expedited resolution from the California Supreme Court. The case details, including the parties and their legal representation, are specified, and a joint report on the proceedings is required every three months if the questions are accepted.

Case number 08-16338 involves Nikki Pooshs as the petitioner appealing a district court ruling. The legal representation for Pooshs includes David Wayne Fermino, James P. Nevin, and Gilbert L. Purcell from BRAYTON PURCELL, LLP, all located in Novato, California. Phillip Morris is represented by attorneys from MUNGER, TOLLES, OLSON LLP, and SHOOK HARDY, BACON, LLP, based in Los Angeles and San Francisco, respectively. R.J. Reynolds Tobacco Co. and Brown and Williamson Tobacco Corporation have shared counsel from JONES DAY. Lorillard Tobacco Company is also represented by SHOOK HARDY, BACON, LLP. Hill, Knowlton, Inc. has legal counsel from KRIEG KELLER SLOAN REILLEY ROMAN, LLP, while DNA Plant Technology Corp. is represented by MCDONOUGH HOLLAND ALLEN PC and BINGHAM McCUTCHEN, LLP. Safeway, Inc. shares counsel with Phillip Morris.

Two critical questions of California law are certified for the California Supreme Court: (1) when can two physical injuries from the same wrongdoing be seen as violating two different primary rights? (2) can two tobacco-related injuries be considered "qualitatively different" for determining the start of the statute of limitations? The Ninth Circuit is obligated to adhere to California Supreme Court decisions in interpreting state law, as established in Aceves v. Allstate Ins. Co.

The case arises from an injury claimed by Pooshs due to smoking cigarettes from the defendants, involving ten claims governed by California law, including negligence, product liability, various forms of fraud and deceit, conspiracy, and failures to warn related to cigarette use.

The district court ruled that all claims by Pooshs were time-barred, establishing this in Pooshs v. Phillip Morris, USA, Inc. Pooshs had smoked tobacco from 1953 to 1991, initially unaware of its health impacts, with defendants allegedly concealing information regarding smoking's addictive nature and associated health risks. Pooshs was diagnosed with chronic obstructive pulmonary disease (COPD) in 1989 and periodontal disease in 1990, both attributed to smoking, but did not sue for these conditions. In January 2003, she was diagnosed with lung cancer, which has a different cause than COPD and periodontal disease. She filed suit nearly a year later, seeking relief solely for lung cancer. The court held that her awareness of serious smoking-related illnesses in the early 1990s triggered the statute of limitations for her personal injury claim.

The California Supreme Court's Grisham v. Philip Morris addressed the "rule against splitting a cause of action" and its connection to the statute of limitations, noting that the infliction of harm initiates the limitations period. The court acknowledged varying interpretations among California courts regarding whether subsequent injuries from a single wrongdoing can be separately litigated. Some courts have ruled that an earlier injury starts the limitations period for both injuries, while others have allowed later injuries to be pursued even if the earlier ones have become time-barred. The California Supreme Court opted not to resolve the specific issue of whether two distinct injuries from the same wrongdoing could support separate lawsuits.

The Court identified that Grisham had presented two distinct types of injury: serious physical injury and economic injury. The California Supreme Court did not address whether multiple physical injuries could be considered as infringing upon different primary rights or if such injuries, caused by prolonged tobacco use, could establish separate limitations periods. This unresolved question warranted certification for clarity. The outcome of Pooshs's appeal hinges on the California Supreme Court's determination regarding the start of the limitations period linked to her prior diagnoses of chronic obstructive pulmonary disease (COPD) and periodontal disease. If either diagnosis is deemed to initiate the limitations period for all tobacco-related injuries, Pooshs's current lawsuit for damages from terminal lung cancer would be barred, affirming the district court’s dismissal. Conversely, if the limitations period did not commence with those diagnoses, the dismissal would be reversed, allowing for further proceedings. The court directed the clerk to file relevant materials with the California Supreme Court and stayed further proceedings until that court's decision on the certified questions. The panel will regain jurisdiction upon the California Supreme Court's response. Additionally, the court noted that the applicability of the statute of limitations is contingent on the California Supreme Court's ruling. The earlier dismissal by the district court was based on the statute of limitations, and the case was remanded for reconsideration in light of Grisham v. Philip Morris U.S.A. related rulings.