Nguyen v. W. Digital Corp.

• Citation: 229 Cal.App.4th 1522,177 Cal.Rptr.3d 897
• Decision Date: 25 September 2014
• Docket Number: H038934
• Court: California Court of Appeals
• Parties: Hanh NGUYEN, a Minor, etc., Plaintiff and Appellant, v. WESTERN DIGITAL CORPORATION, Defendant and Respondent.

229 Cal.App.4th 1522

177 Cal.Rptr.3d 897

Hanh NGUYEN, a Minor, etc., Plaintiff and Appellant,

v.WESTERN DIGITAL CORPORATION, Defendant and Respondent.

H038934

Court of Appeal, Sixth District, California.

Filed September 25, 2014

See 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 573.

Santa Clara County Superior Court, Superior Court No.: 1–10–CV–185748, The Honorable Patricia M. Lucas, Trial Judge.

Waters Kraus & Paul, Michael B. Gurien, El Segundo, for Hanh Nguyen, a Minor, etc.: Plaintiff and Appellant.

Arnold & Porter, Maurice A. Leiter, Los Angeles, for Western Digital Corporation: Defendant and Respondent.

Márquez, J.

In this case, we determine which statute of limitations applies to an action alleging pre-birth injuries due to exposure to hazardous materials or toxic substances that occurred more than 20 years ago. Plaintiff Hanh Nguyen (sometimes Plaintiff) contends that such claims are subject to the two-year limitations period in Code of Civil Procedure section 340.8 for actions “for injury or illness based upon exposure to a hazardous material or toxic substance,” which she asserts is subject to tolling for minority or mental incapacity. (Unless otherwise stated, all further statutory references are to the Code of Civil Procedure.) Defendant Western Digital Corporation (WDC) argues that such claims are subject to the six-year limitations period in section 340.4 for actions based on birth and pre-birth injuries, which is not subject to tolling for minority or mental incapacity.

Plaintiff was born with agenesis of the corpus callosum (a birth defect affecting the structure of the brain) and other birth defects. She alleges that her birth defects were caused by her mother's occupational exposure and her (Hanh's) in utero exposure to hazardous and toxic chemicals at WDC. Plaintiff also alleges that her parents did not know that her birth defects were caused by exposure to hazardous chemicals at WDC until December 2008, when family members heard on the radio that Plaintiff's attorneys were investigating cases of birth defects caused by chemical exposures in the semiconductor industry.

Plaintiff appeals from a judgment of dismissal after the trial court sustained WDC's demurrer to the third amended complaint without leave to amend on the ground that the action was barred by the statute of limitations for pre-birth injuries in section 340.4. Plaintiff contends the applicable statute of limitations is section 340.8, the limitations period for causes of action based on exposure to hazardous substances (which is subject to tolling for minority and mental incapacity) and that the trial court erred when it applied the limitations period for pre-birth injuries in section 340.4 (which is not subject to such tolling). Plaintiff also contends that (1) she has pleaded sufficient facts to support delayed accrual of her claims until December 2008, or alternatively, until at least December 1998; and (2) WDC is equitably estopped from relying on a statute of limitations defense because it knew the chemicals used in its facility caused reproductive harm, and because it fraudulently concealed the causal connection between the chemical exposure and Plaintiff's injuries.

Construing both section 340.4 and section 340.8, we hold that claims based on birth or pre-birth injuries that are due to exposure to hazardous materials or toxic substances are subject to the limitations period in section 340.8. We also hold that even though section 340.8 did not take effect until almost 10 years after Plaintiff was born, it applies in this case because the allegations of the third amended complaint support a claim of delayed accrual until December 31, 1998. And since Plaintiff's claims did not accrue until that date, they were not barred by the six-year limitations period in section 340.4 (pre-birth injuries) on January 1, 2004, when section 340.8 (toxic exposures) went into effect. Moreover, since Plaintiff's claims were subject to the limitations period in section 340.8 when it took effect, she is entitled to tolling for minority that applies to section 340.8 claims. Thus, her action filed on October 25, 2010, when she was 16 years old, was timely. We will therefore reverse the judgment and direct the trial court to vacate its previous order and enter a new order overruling the demurrer to Plaintiff's third amended complaint.

Facts¹

Hanh Nguyen was born on August 11, 1994. She was 16 years old when she filed her original complaint in October 2010 in Santa Clara County Superior Court.² In the original and the first amend complaint, Hanh was represented by her mother and guardian ad litem, Lan Tran. Hanh's older sister, Kim Nguyen, appeared as guardian ad litem in the second and third amended complaints. Hanh's father, Liem Nguyen, was named as a plaintiff in earlier complaints, but is not a party to the third amended complaint. (For clarity, and meaning no disrespect, we will refer to the members of the Nguyen and Tran family by their first names. Sometimes, we will refer to Lan Tran and Liem Nguyen jointly as “Parents.” We will refer to Hanh and Liem jointly as “Plaintiffs” when discussing the pleadings that named both of them as plaintiffs.)

Hanh's mother, Lan, worked for WDC at its Santa Clara manufacturing facility from approximately 1987 until 1998. Lan worked in “clean rooms” and elsewhere at WDC “where she used and/or was exposed for prolonged periods to teratogenic,³ and reproductively toxic chemicals” that WDC used to assemble and to manufacture its products. “Teratogenic chemicals are known to cause severe harm to unborn children.” Lan worked at WDC while she was pregnant with Hanh. During Lan's pregnancy, Hanh “was ‘present’ in ‘clean rooms' and elsewhere” at WDC “where she was exposed during the crucial months of growth in her mother's womb, for prolonged periods to teratogenic and reproductively toxic chemicals.”

“Upon information and belief,” the third amended complaint lists chemicals or classes of chemicals that were commonly used in the semiconductor industry. “Due to the nature of semiconductor manufacturing, multiple chemicals are used at the same time and in the same space, such that exposure to individual chemical substances cannot be separated or singled out in a meaningful way; the impact of exposure must take into account both individual chemicals and ... exposure to numerous chemicals simultaneously.”

The third amended complaint alleges that the “ ‘clean rooms' ” were only clean for WDC's products, not its employees. There was no ventilation system to protect workers from inhaling fumes emitted by the chemicals, which remained in the re-circulated air in the clean rooms. And the protective clothing the employees wore protected the products from the workers and their clothing, but it did not protect the workers from the chemicals. Lan absorbed chemicals that were in the workplace into her body through her skin and by inhalation. The exposure to these chemicals alone or in combination caused Hanh to sustain “birth defects” and “severe and permanent injuries, including ... agenesis of the corpus callosum.” ⁴ The chemicals listed in the complaint were a substantial factor in causing Hanh's injuries.

Based on the scientific literature and government bulletins that were available beginning in the early 1980's, WDC knew or should have known of the reproductively toxic nature of the chemicals used in its facility. In the 1980's, chemical manufacturers warned semiconductor companies about the toxicity associated with their chemical products. The third amended complaint includes citations to several journal articles, scientific symposiums and presentations, and government bulletins that were published between 1981 and 1996 regarding animal studies on chemicals used in the semiconductor industry. The complaint describes: (1) a 1981 article in the journal Toxicology, which reported that toxicology studies on mice had “demonstrated that ethylene glycol monomethyl ether, ..., caused an increased incidence of fetal malformations and fetal death”; (2) a 1982 study done by the National Institute of Occupational Safety and Health on the effects of 2–ethoxyethanol on pregnant rats that allegedly demonstrated a relationship between exposure to the chemical and miscarriages, skeletal and cardiovascular malformations, and fetal death, the results of which were published in the journal Drug and Chemical Toxicology; (3) a 1983 article in the journal Toxicology describing “the adverse effects of ethylene glycol ethers on the male reproductive system”; and (4) a 1984 article that was a “compilation of over forty scholarly articles addressing the toxicity and reproductive hazards associated with certain glycol ethers,” which was published in Environmental Health Perspectives.

The third amended complaint also describes three epidemiological studies that examined the incidence of miscarriage among women who worked in the semiconductor industry. These studies include: (1) a 1988 study involving employees at Digital Equipment Corporation, the results of which were reported in the Journal of Occupational Medicine; (2) a 1989 study done at the University of California at Davis on behalf of the Semiconductor Industry Association (SIA) that “evaluated thousands of workers at 14 different companies nationwide” and “generated 11 papers published in the peer reviewed medical literature,” including three articles in the American Journal of Industrial Medicine; and (3) a study done at Johns Hopkins University on behalf of IBM Corporation, the results of which were published in Occupational Hygiene and the American Journal of Epidemiology in 1996.

In 1983 and again in 1994, the National Institute of Occupational Safety and Health (NIOSH) sponsored two symposiums that included presentations on the reproductive effects of glycol ethers. Based on animal studies, a May 1983 NIOSH bulletin recommended that two of the chemicals Hanh's ...