Christensen v. Philip Morris USA Inc.

• Decision Date: 08 June 2005
• Docket Number: No. 02136 Sept. Term, 2003.,02136 Sept. Term, 2003.
• Citation: 162 Md. App. 616,875 A.2d 823
• Parties: Nona K. CHRISTENSEN, et al. v. PHILIP MORRIS USA INC., et al.
• Court: Court of Special Appeals of Maryland

875 A.2d 823

162 Md. App. 616

Nona K. CHRISTENSEN, et al. v. PHILIP MORRIS USA INC., et al.

No. .

Court of Special Appeals of Maryland.

June 8, 2005.

Edward J. Lilly (Theodore M. Flerlage, Law Offices of Peter G. Angelos, on the brief), Baltimore, MD, for appellant.

Bruce D. Ryder (J. William Newbold, Michael B. Minton, on the brief), St. Louis, MO, (Kathleen M. McDonald, on the brief), Baltimore, MD, for appellee.

Panel: HOLLANDER, SHARER, CHARLES E. MOYLAN, JR., (Retired, specially assigned) JJ.

HOLLANDER, J.

This appeal involves the interplay of the statute of limitations, the discovery rule, and the doctrine of equitable tolling, and the competing policies that support each one. Russell E. Christensen ("Christensen" or the "Decedent"), was diagnosed with lung cancer in mid 1998. Although Christensen had been a cigarette smoker for thirty years, he had ceased smoking more than twenty years before he was diagnosed with lung cancer, from which he died on January 17, 2001, at the age of seventy-three.

On August 13, 2001, Nona Christensen, appellant, the Decedent's widow, individually and as Christensen's personal representative, brought a survival and wrongful death action¹ against a host of tobacco manufacturers and related entities. They include appellees Philip Morris USA Inc. ("Philip Morris");² Lorillard Tobacco Co.; and Liggett Group, Inc. ("Liggett"), manufacturers of cigarette products, and appellees Giant Food, LLC ("Giant"); Crown Service, Inc.; George J. Falter Co., Inc.; and A & A Tobacco Company, Inc., entities involved in the sale and distribution of cigarettes.³ Ms. Christensen sought compensatory and punitive damages based on strict liability (failure to warn), fraudulent misrepresentation, fraud by concealment, loss of consortium, and conspiracy. The suit was amended on September 25, 2002, to add as plaintiffs the Decedent's two adult children: appellants Eric Lowell Christensen (born August 14, 1963) and Lisa Marie Christensen Kelly (born December 10, 1960).

With one exception, all of the appellees in this case had previously been sued in a class action brought in Maryland by smokers, former smokers, and their families. Although Christensen was not a named party in the class action, he was a potential class member. The case sub judice was filed several months after the class action was decertified by the Court of Appeals in Philip Morris Inc. v. Angeletti, 358 Md. 689, 752 A.2d 200 (2000).

Appellees moved for summary judgment in this case, alleging that suit was barred by limitations because the Decedent knew in the Spring of 1998 that he had lung cancer, and thus was on inquiry notice at that time. In response, appellants claimed, inter alia, that Christensen's claim did not accrue until September 1998, when he learned that his cancer was caused by cigarette smoking. Moreover, they suggested that, because Christiansen was an ex-smoker for more than two decades, he lacked sufficient knowledge at the time of diagnosis to link his lung cancer to smoking.

The circuit court granted appellees' motion. Among other things, it concluded that the claims accrued more than three years before suit was filed, and that limitations was not tolled during the pendency of the unsuccessful class action suit.

On appeal, appellants present the following three questions:

I. Did the trial court err in refusing to consider whether the statute of limitations was tolled during the pendency of the Maryland class action tobacco case?

II. Did the trial court err in granting summary judgment in favor of the defendants as to Appellant's survival action on the ground that the action was barred by limitations?

III. Did the trial court err in declaring that Appellant's wrongful death claims were barred by the statute of limitations?

For the reasons set forth below, we shall reverse and remand.

FACTUAL SUMMARY⁴

Christensen was born in 1927 and was well educated. He worked for a period of time as a teacher and then as a school principal. In 1970, he obtained his law degree.

In May 1996, the case of Richardson v. Philip Morris Inc. was filed in the Circuit Court for Baltimore City against various manufacturers of tobacco, their Maryland distributors, and others, seeking damages on behalf of the named plaintiffs and similarly situated "Maryland residents (a) who have suffered or continue to suffer from physical injuries or disease caused by smoking cigarettes or using smokeless tobacco products, and/or (b) who are nicotine dependent and plead addiction as an injury." Philip Morris Inc., 358 Md. at 700, 752 A.2d 200. The Richardson plaintiffs moved for class certification in September 1997. Id. at 701, 752 A.2d 200. In January 1998, pursuant to Md. Rule 2-231(b)(3), the circuit court approved for class action treatment some eight tort and contract causes of action, one consumer protection claim, and one claim for "medical monitoring." Id. Thereafter, the circuit court issued an order certifying two classes. In general, the classes consisted of: a) Maryland residents (or their estates and families) who, as current or former smokers, sustained injury, illness, or death caused by cigarettes, and b) those who were "nicotine dependent persons...." Id. at 701, 752 A.2d 200. Unhappy with the class certification, the defendants filed a petition in the Court of Appeals for a writ of mandamus or prohibition, asking that Court to "direct" the circuit court to vacate the class certification. Id. at 699, 752 A.2d 200.

Christensen was not a named party in Richardson, nor did he move to intervene in the class action. However, he was a potential class member. Moreover, all of the appellees (except Giant) were aware of Christiansen's status as a putative class member. In particular, on May 11, 1999, Christensen provided an affidavit for the plaintiffs in the Richardson case, describing his smoking history and the history of his lung cancer. And, in June 1999, he provided a videotaped de bene esse deposition in the Richardson case. At his deposition, Christensen was represented by appellants' present counsel, who were also the attorneys for the plaintiffs in Richardson.

In an opinion dated May 16, 2000, issued in the Richardson case, the Court of Appeals granted the relief of mandamus and ordered the circuit court to decertify the class. Philip Morris Inc., 358 Md. at 699, 787-88, 752 A.2d 200. Thereafter, on March 13, 2001, the parties in the Richardson case filed a "Stipulation of Dismissal" in the circuit court, in which they agreed that, for the purpose of limitations, any claims reasserted by the named parties within six months of the dismissal would be deemed filed on the same date that Richardson had been filed. The Stipulation, however, did not extend to the claims of the parties in the case sub judice. As noted, the suit at issue here was filed on August 13, 2001.

In September 2003, appellees moved for summary judgment in the case sub judice, claiming that appellants' claims were barred by limitations. According to appellees, Christensen had both actual and inquiry notice of his claims more than three years before suit was filed on August 13, 2001. Appellees asserted, in part:

By his own admission, Mr. Christensen knew before August 13, 1998 that he had lung cancer, which he attributed to smoking, and was thus on notice of his possible claims more than three years before suit was filed. Indeed, Mr. Christensen had reason to suspect, as early as the Fall of 1997 and clearly no later than the Spring of 1998, that he might have been injured by smoking, and was thus on at least inquiry notice of his potential claims by that earlier time. Plaintiffs' survival claims, which were not filed until more than three years later, are thus time-barred.

Further, because any direct claim by Mr. Christensen is time-barred, Plaintiffs' wrongful death claim is also barred. This is a consequence of the plain language of Maryland's Wrongful Death Act, which provides that if the decedent's claim would be barred, any wrongful death claim by his beneficiaries also cannot succeed.

In support of their motion, appellees submitted numerous exhibits, including the Decedent's affidavit and deposition testimony from the Richardson case. Appellees also provided the deposition testimony of the Decedent's physicians and family members, as well as some of his medical records.

In their opposition, appellants argued that Christensen did not have actual or inquiry notice of his lung cancer until September 1998, when he obtained the results of a needle biopsy that was performed on August 13, 1998. Further, they argued that the wrongful death claims were not barred because suit was filed within three years of Christensen's death. In addition, they asserted that "[a]ll statutes of limitations applicable to the action filed by [appellants] were tolled by their membership in the Richardson Tobacco Class Action and no statute of limitations applicable to the Christensen action began to run until class decertification on June 15, 2000." Appellants also submitted additional medical records and deposition testimony.

According to Christensen's affidavit⁵ and deposition, he began smoking cigarettes in 1940 or 1941, when he was fourteen years old, "because it was the thing to do." He changed brands over the years, and eventually his smoking habit increased to two packs a day. At some point during the 1950's or 1960's, Christensen "became aware generally" of the "health hazards associated with cigarette smoking." Moreover, he was familiar with the Surgeon General's warning on the side of the cigarette packaging.

In approximately 1968, Christensen ceased smoking cigarettes in his home, car, and around his family, for a variety of reasons. During the early 1970's, the effects of approximately thirty years of smoking began to affect Christensen's health. He averred in his affidavit that because he "developed an early morning cough," he "attempted to cut back [his...