Soliman v. Philip Morris Inc.

Decision Date22 November 2002
Docket NumberNo. 01-15387.,01-15387.
Citation311 F.3d 966
PartiesMaher W. SOLIMAN, Plaintiff-Appellant, v. PHILIP MORRIS INCORPORATED; Philip Morris Companies; R.J. Reynolds Tobacco Company; Council for Tobacco Research USA Inc.; Tobacco Institute, Inc.; Lorillard Tobacco Company; Brown & Williamson Tobacco Corp.; B.A.T. Industries P.L.C.; American Tobacco Company; Liggett Group Incorporated, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Maher W. Soliman, San Francisco, CA, pro se.

Alicia J. Donahue and Patrick J. Gregory of Shook, Hardy & Bacon LLP, San Francisco, CA, for appellees Philip Morris, Inc., and Philip Morris Companies, Inc.

W. Bruce Wold and Shelley L. Brittman of Sedgwick, Detert, Moran & Arnold, San Francisco, CA, for appellees Brown & Williamson Tobacco Corporation, individually and as successor by merger to the American Tobacco Company.

Mary C. Oppedahl of Crosby, Heafey, Roach & May P.C., Oakland, CA, for appellee Tobacco Institute, Inc.

Steven H. Bergman and Mary Elizabeth McGarry of Simpson Thatcher & Bartlett, Los Angeles, CA, and New York, NY, for appellee B.A.T. Industries p.l.c. Thomas G. Scarvie and Richard Shively of Howard, Rice, Nemerovski, Canady, Falk & Rabkin P.C., San Francisco, CA, for appellee R.J. Reynolds Tobacco Company.

Sharon S. Mequet and Daniel J. Friedman of Loeb & Loeb LLP, Los Angeles, CA, for appellee Council for Tobacco Research —U.S.A., Inc.

Appeal from the United States District Court for the Northern District of California, Martin J. Jenkins, District Judge, Presiding. D.C. No. CV-00-1530-MJJ.

Before HALL, KOZINSKI and McKEOWN, Circuit Judges.

OPINION

KOZINSKI, Circuit Judge.

Christopher Columbus's log records the first European encounters with tobacco. His crew observed Indians "carrying a charred, hollow wood in their hands and herbs to smoke in this wood, which they are in a habit of doing."1 Bartolemé de Las Casas, a contemporary who witnessed Columbus's return to Seville, described the consequences:

These muskets as we will call them, they call tabaco. I knew Spaniards on this island of Española (San Domingo) who were accustomed to take it, and being reprimanded by telling them it was a vice, they made reply that they were unable to cease from using it.2

Five centuries later, the Surgeon General came to the same conclusion. In 1988, he formally classified nicotine as addictive, publishing a report whose title, The Health Consequences of Smoking: Nicotine Addiction, left little to the imagination.3 FDA Commissioner David Kessler spent most of the 1990s trying to regulate tobacco products because of the threat that addiction posed to the public health. And, in the fall of 1994, Chandler was berated by Ross, Phoebe and the rest of the gang for his inability to quit.4 In short, the addictive qualities of tobacco are a cultural fixture, and have been for quite some time.

Plaintiff Maher Soliman nevertheless claims he had no idea that cigarettes were addictive for the first thirty-two years that he smoked them. He says that he did not discover the truth until October 1999, when he saw a television interview of Jeffrey Wigand, the industry insider (so to speak) who made damaging revelations of nicotine manipulation by tobacco companies. Soliman sued the tobacco industry for making him an unwitting slave to the leaf, for demolishing his lungs and for causing him psychological distress. The district court dismissed because it found his claims were barred by the statute of limitations.

1. Soliman alleges that he has smoked cigarettes since the late 1960s, when he was fourteen. He is by now addicted to nicotine. He's tried to quit fifty times, but has never lasted more than three days.5 At the time he filed his complaint, he was only forty-six but had the lungs of an eighty-five year old. He suffers from a variety of respiratory disorders, including dyspnea and orthopnea, which impair his lung function and make it hard for him to breathe except in an upright position. He claims that smoking has afflicted him with "physical distress, depression, extreme anguish, nervousness, tension, anxiety and loss of sleep." Am. Compl. ¶ 25. And, still, he continues to smoke, unable to quit.

In October 1999, Soliman watched an MSNBC interview of Jeffrey Wigand, who revealed that the tobacco industry had suppressed information about the harmful effects of smoking. A few months later, he was diagnosed with the abovementioned respiratory disorders and began to research the industry in earnest. He claims that, in the course of this research, he made the discovery that's at the center of this lawsuit: Smoking is addictive. "Only then," claims Soliman, "did [he] discover that smoking was ... an addiction and that he was and is addicted to tobacco product." Am. Compl. ¶ 26. He "could not have discovered, prior to the interview of Mr. Wigand on MSNBC, ... the addictive nature of nicotine in cigarettes and the health hazards of tobacco, because the tobacco industry ha[d] actively and fraudulently concealed and suppressed" that information. Id. ¶ 27. Indeed, Soliman claims, "[t]he addictive nature of nicotine is a defect which is virtually impossible to identify and detect by the consumer." Id. ¶ 30.6

Soliman sued various tobacco companies in state court in March 2000, seeking $100 million in general and compensatory damages, a further $100 million in punitive damages and "equitable relief" in the form of a fund to pay his future medical bills. He invoked a number of theories, including product liability, negligence, breach of warranty, fraud, misrepresentation, conspiracy and intentional infliction of emotional distress. The thread running through his complaint is that cigarettes cause addiction and other health problems, and defendants must pay for inflicting these ailments upon him.

Defendants removed to federal court and, once there, moved to dismiss on the ground that the suit is untimely. Defendants are skeptical of Soliman's claim that, despite having smoked for thirty-two years, he didn't discover any of his health problems until a few months before he filed. They argue that Soliman had at least constructive knowledge much earlier.

The district court denied Soliman's motion to remand to state court and dismissed the complaint as barred by limitations. Soliman filed an amended complaint, but the district court held that the claims were still untimely and dismissed without leave to amend.

2. Soliman observes that the original removal notice was defective because it wasn't signed by all defendants. The district court, however, allowed defendants to cure this defect by amending the notice pursuant to 28 U.S.C. § 1653. "[A] procedural defect existing at the time of removal but cured prior to entry of judgment does not warrant reversal and remand of the matter to state court." Parrino v FHP, Inc., 146 F.3d 699, 703 (9th Cir. 1998).

Soliman also contends there is no complete diversity of citizenship as required by 28 U.S.C. § 1332. Soliman is a citizen of California. None of the named defendants is a citizen of that state, but the complaint lists several "Doe" defendants, whose "capacities and relationship to other Defendants ... are unknown" but who are, Soliman claims, "responsible for the acts complained of." Am. Compl. ¶ 14. In his appellate brief, Soliman for the first time identifies one of the mystery defendants —a company in Oakland, California, which he refers to as "DNA Plant Technology Corporation." Soliman claims that this firm genetically engineered a high-nicotine tobacco plant known as "Y-1" for Brown & Williamson, who grew it in Brazil and then secretly shipped it to the United States. He intends to substitute this newly identified co-conspirator for one of the Does.

The citizenship of fictitious defendants is disregarded for removal purposes and becomes relevant only if and when the plaintiff seeks leave to substitute a named defendant. 28 U.S.C. §§ 1441(a), 1447(e) (superseding Bryant v. Ford Motor Co., 832 F.2d 1080 (9th Cir.1987) (en banc)). Soliman failed to do so before the district court entered judgment against him, and his post-judgment attempt has no jurisdictional significance. See Bryant v. Ford Motor Co., 886 F.2d 1526, 1531 (9th Cir. 1989).

3. We therefore reach the central issue—whether Soliman's claims are timely. Because the district court dismissed the case on the pleadings, we can affirm only if untimeliness is apparent on the face of the liberally construed complaint. See Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 1331 (9th Cir.1996).

Product liability claims are subject to a one-year statute of limitations in California. Cal.Civ.Proc.Code § 340(3). This provision bars untimely personal injury claims based on defective products regardless of the particular legal theory invoked. See Nodine v. Shiley Inc., 240 F.3d 1149, 1153 n. 2 (9th Cir.2001); Clark v. Baxter Healthcare Corp., 83 Cal.App.4th 1048, 1054 n. 2, 100 Cal.Rptr.2d 223 (2000). The statute of limitations normally begins to run when the claim accrues, that is, "when the cause of action is complete with all of its elements." Norgart v. Upjohn Co., 21 Cal.4th 383, 397, 87 Cal.Rptr.2d 453, 981 P.2d 79 (1999); 3 Witkin, California Procedure § 459 (4th ed.1996). When a plaintiff is unaware of his cause of action, the "discovery rule" may postpone accrual until he either discovers or has reason to discover it. Norgart, 21 Cal.4th at 397; 87 Cal.Rptr.2d 453, 981 P.2d 79, 3 Witkin, California Procedure, supra, § 463. A plaintiff "has reason to discover the cause of action when he has reason at least to suspect a factual basis for its elements." Norgart, 21 Cal.4th at 398, 87 Cal.Rptr.2d 453, 981 P.2d 79 (emphasis added).

Soliman argues that the statute of limitations didn't begin to run until he was aware, not only of his injuries, but also of defendants' specific wrongful conduct— in particular,...

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