Grisham v. Philip Morris, Inc.

• Decision Date: 07 October 2009
• Docket Number: No. CV 02-7930 SVW (RCx).,CV 02-7930 SVW (RCx).
• Citation: 670 F.Supp.2d 1014
• Parties: Leslie L. GRISHAM, Plaintiff, v. PHILIP MORRIS, INC., et al., Defendants.
• Court: U.S. District Court — Central District of California

670 F.Supp.2d 1014

Leslie L. GRISHAM, Plaintiff, v. PHILIP MORRIS, INC., et al., Defendants.

No. CV 02-7930 SVW (RCx).

United States District Court, C.D. California.

October 7, 2009.

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Frances M. Phares, Baum Hedlund Aristei Goldman & Menzies, Covington, LA, J. Clark Aristei, Michael L. Baum, Baum Hedlund Aristei Goldman & Menzies, Los Angeles, CA, for Plaintiff.

Dana N. Gwaltney, Frank P. Kelly, III, Ingrid L. Peterson, M. Kevin Underhill, Patrick J. Gregory, Tammy B. Webb, Shook Hardy & Bacon LLP, Peter Nels Larson, Jones Day, J. Leah Castella, Natasha Sen, Bingham McCutchen, San Francisco, CA, Daniel P. Collins, Munger Tolles & Olson LLP, John L. Carlton, Law Office of John L. Carlton, John D. Lombardo, Arnold and Porter, Kevin R. Costello, Ralph A. Campillo, Sedgwick Detert Moran & Arnold, Melanie Ann Hanson Sartoris, AUSA-Office of U.S. Attorney, Los Angeles, CA, Gary Long, Shook Hardy & Bacon LLP, Kansas City, MO, Amanda S. Jacobs, Erin L. Dickinson, Sarah L. Bunce, Stephen Kaczynski, Jones Day, Cleveland, OH, Elizabeth P. Kessler, Kelli Jones Stiles, Jones Day, Columbus, OH, for Defendants.

ORDER (1) DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE STATUTE OF LIMITATIONS DEFENSE [160]; (2) DENYING PLAINTIFF'S MOTION TO STAY CASE PENDING FINAL OUTCOME OF PER CURIUM OPINION AND REQUEST FOR EXPEDITED HEARING [161]; (3) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [174]

STEPHEN V. WILSON, District Judge.

I. INTRODUCTION

The factual and procedural background of this case is set out in the Court's previous orders. (See October 4, 2007 Order Granting and Partially Denying Defendants' Motion to Strike and Partially Granting Dismissal, docket no. 108; April 1, 2003 Order Granting Judgment on the Pleadings in Part and Dismissing in Part, docket no. 67.) The present motions therefore need relatively little introduction.

Plaintiff's basic assertion is that she smoked Defendants' cigarettes and, as a result, now suffers from periodontal disease¹ and Chronic Obstructive Pulmonary Disease.² Specifically, Plaintiff asserts that the chemicals contained in cigarette smoke directly cause these injuries, that Defendants failed to remove or neutralize these harmful chemicals, and that Defendants' conduct has in various other ways caused Plaintiff to smoke more cigarettes than she would have otherwise smoked. By smoking more cigarettes, Plaintiff has been exposed to more of the harmful chemicals that tend to cause periodontal disease and Chronic Obstructive Pulmonary Disease. Plaintiffs causes of action include negligence, strict products liability, false representation, deceit/fraudulent concealment, and breach of express warranty. Plaintiff seeks compensatory and punitive damages.

The parties have filed three significant motions that are now before the Court. In the first motion, Defendants seek summary judgment on basis of the statute of limitations. In the second motion, Plaintiff seeks collateral estoppel on the basis of the Department of Justice's case against the tobacco companies. In the third motion, Defendants seek summary judgment in their favor on some of Plaintiffs claims. Specifically, Defendants seek to establish that cigarettes were not a defective product due to a design defect; that cigarettes were not a defective product due to failing to meet consumer expectations; that Restatement (Second) of Torts § 402A (comment i) bars any products liability cause of action; that Plaintiffs fraudulent concealment/deceit cause of action is preempted and is unsupported by evidence; and that Plaintiffs breach of express warranty cause of action is unsupported by evidence.

II. LEGAL STANDARD GOVERNING SUMMARY JUDGMENT

Rule 56(c) requires summary judgment for the moving party when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir.1997).

The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). That burden may be met by "`showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. Once the moving party has met its initial burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify specific facts that show a genuine issue for trial. See id. at 323-34, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact. Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir.2000). Only genuine disputes "where the evidence is such that a reasonable jury could return a verdict for the nonmoving party" over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.2001) (the nonmoving party must identify specific evidence from which a reasonable jury could return a verdict in its favor).

III. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE BASIS OF STATUTE OF LIMITTIONS

Plaintiff filed her complaint on March 15, 2002. At the time of she filed, the California statute of limitations for personal injury actions was one year. Cal.Code Civ. Proc. § 340(3); see Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir.2004) (successor statute to Cal.Code Civ. Proc. § 340(3) does not apply retroactively).

Plaintiffs complaint asserts that she was diagnosed with the beginning stages of emphysema (used interchangeably with Chronic Obstructive Pulmonary Disease) on March 28, 2001 (First Amended Compl. ¶ 31) and that she was diagnosed with periodontal disease and gingivitis in April 2001 (First Amended Compl. ¶ 32). As alleged, the injuries clearly fall within the applicable limitations period. See Grisham v. Philip Morris U.S.A., Inc., 40 Cal.4th 623, 639, 54 Cal.Rptr.3d 735, 151 P.3d 1151 (2007).

Following discovery, Defendants filed a motion for summary judgment on the basis of the statute of limitations. Their basic contention is that Plaintiffs pleadings are inconsistent with the facts that she now asserts. Defendants point out that the evidence shows that Plaintiff first started suffering periodontal harm at least as early as 1990, not in April 2001 as asserted in the First Amended Complaint. As for Plaintiffs Chronic Obstructive Pulmonary Disease, Defendants argue that the evidence shows that Plaintiff was not diagnosed with Chronic Obstructive Pulmonary Disease until. July 2001, which contradicts Plaintiffs pleaded facts that she was diagnosed in March 2001.

Plaintiffs response is that, even though she was aware that she suffered from periodontal disease, she did not learn of the link between smoking and periodontal disease until March 30, 2002. Accordingly, she asserts that her cause of action did not accrue until she knew that Defendants' conduct was linked to her injuries. This is inconsistent with Plaintiffs First Amended Complaint, which alleges that Plaintiff did not begin to suffer periodontal disease until March 2002. Plaintiffs First Amended Complaint did not allege any facts regarding her delayed discovery of the link between smoking and periodontal disease. However, Plaintiffs First Amended Complaint did allege that Defendants engaged in fraud and concealment to prevent the public from knowing about the health risks of smoking.

Defendants argue that, even if Plaintiff asserts that she was unaware until 2001 that Defendants' conduct caused these injuries, Plaintiff should be barred from introducing evidence to support such assertions because Plaintiff failed to include these arguments in her pleadings. Defendants assert that throughout the time Plaintiff suffered periodontal disease, she was on inquiry notice of her injury's link to cigarette smoking, and her First Amended Complaint bars her from introducing evidence to contradict this claim.

A. LEGAL STANDARD GOVERING STATUTE OF LIMITTIONS

1. Cause of Action Accrual

A "cause of action accrues at the time when the cause of action is complete with all of its elements.'" Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 806-807, 27 Cal.Rptr.3d 661, 110 P.3d 914 (2005). Generally, this means that "an action accrues on the date of injury," provided that the injured party "suspects . . . that someone has done something wrong" that would cause the injury. Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 1109-10, 245 Cal.Rptr. 658, 751 P.2d 923 (1988). As reiterated by the Supreme Court of California, there is a "general, rebuttable presumption, that plaintiffs `have knowledge of the wrongful cause of an injury.'" Grisham v. Philip Morris USA, Inc., 40 Cal.4th 623, 638, 54 Cal.Rptr.3d 735, 151 P.3d 1151 (2007) (quoting Fox, 35 Cal.4th at 808, 27 Cal.Rptr.3d 661, 110 P.3d 914).

In addressing these questions, it is essential to keep in mind that "[t]he statute of limitations is an affirmative defense, and defendant has the burden of proving the action is time-barred." Gallardo v. DiCarlo, 203 F.Supp.2d 1160, 1169 (C.D.Cal.2002) (citing O'Connor v. Boeing N. Am., Inc., 92 F.Supp.2d 1026, 1037 (C.D.Cal.2000); California Sansome Co. v. U.S. Gypsum, 55 F.3d 1402, 1407 (9th Cir.1995)) (applying California law).

As a corollary to the general accrual rule, the "discovery rule" effectively "postpones accrual of a claim until the `plaintiff discovers, or has reason to discover, the cause of action.'...