and the treatment will cost several hundred thousand dollars she was never warned of this although the defendants knew of it but we show you at page one ninety four of our appendix are excerpts of record volume one what an adequate warning would be and if canadian children get this from the defendants but american children don't get this warning it's a picture of a mouth that's deteriorating grossly under the suffering of the periodontal disease caused with the loss of teeth and bones the question before the court is whether the court below properly granted judgement on the pleadings in reliance on the solomon case and i have two points to make today ten seventy seven two nine eight ten seventy seven in a watch sites about four of your cases and the standard is that if you have a prior case that attempted to evaluate california law and there are subsequent developments that call that case into question you are at liberty to look at the subsequent developments and to rule that the prior case did not accurately state california law so now the question is do we have subsequent developments and the answer is yes we definitely do those are a california supreme court decision which has been discussed this morning called quitely that was yes and i can present these to you and you have to decide which way you want to go with it whether you can decide this you feel as a matter of state law today or whether you want the california supreme court to help you and we either way is fine with us yeah i don't believe it is because i believe that by the time we're finished you'll at least agree that there is a question about california law that's all the mind does not resolve and you well yes you may or may not because of the case before solomon this contrary to solomon so you have a conflict within the within the circuit but it is definitely possible for you to say that solomon does not resolve the issues in this case in miscreation periodontal disease which were diagnosed in two thousand and one timely within one year of the filing of the suit there's no dispute about that so the question that's in this case that was not resolved in solomon is whether she may recover and whether her for the based on the timely filing of a complaint within one year of the diagnosis of the disease that i just referred to the two diseases that i just referred to solomon may be fairly read as a case limited to addiction that he claimed that he had been subjected to addiction and that the defendants had not disclosed that honestly to him and that he did not know about his addiction until he saw this movie or a press release about jeffrey wygant insider who went public with the industry knowledge about addictions in  ninety nine and the california courts have in brandon g one eleven callout forth limited solomon as follows and i'm quoting brandon g want to live in california for thirty six at the most and i'm quoting solomon stands for the proposition that a person who suffers harm from a product is thereby put on notice that an earlier representation of the product will cause no harm was false and in the content of solomon that means that he he said you didn't tell me that it was addicting or you said it would be healthy and that was contrary to the fact that the direction then he became addicted and what our court says in brandon g says well at least you know at that point in time that the representation about you know addiction was false that does not apply here when arc when my client became aware that she had the voluntary disease and the periodontal disease she sued immediately she sued timely so this case raises a question that was not in solomon if you read solomon the way i'm suggesting that i think it should be read it has to do only with addiction that's why the judge in solomon started back with that sixteen forty counter blast about tobacco being addictive and everybody knows it's addictive that that's the california standard so knowledge of health risks is not sufficient to start the statute of limitations and there's no you know it's a question of fact as to whether my client would have had knowledge about pulmonary  this issue close quote and what they reject solomon on is the issue of common knowledge of the risks of tobacco the very basis on which the judgment on the pleading against my client common knowledge of the risks now what quitely had before it was a full trial whitely had before at the evidence that's been referred to here by my predecessors of the fraud in the affirmative misrepresentations by the tobacco industry that smoking is healthy and safe and that you don't have to worry about any diseases and we're researching it and if we find any diseases we'll let you know so you can rest assured and rely on us and b implication do not trust any of the criticisms or health warnings that the government is putting out and the judgement in whitely rested on the jury's acceptance of what i just said that the industries this information carried the day with the consumer even though and prevailed over contrary accurate information about health risks so the very premise of the solomon decision has been rejected in the whitely case and and i mentioned brandon which also confines solomon in a way that would not support our judgment in the third development is this the california legislature in two thousand and three enacted a new statute of limitations the c p three forty point eight c c p three forty point eight it has to do with the statue of limitations on toxic exposures the point i want to make is in the course of that they said here's our intent our intent is to enact a statute that says you don't have to sue until you know that something wrong hole happened and they had a bad reaction to the latex gloves for several months or years but did not have toxic shock until more than a year later and clarke allowed that suit even though it was filed more than a year after the adverse reactions because clarke said our standard is that the plaintiff has to no have known more than a year ago that something wrongful occurred in the creation or the design of the latex glove now how does that apply that applies to our case as follows there is no evidence that my client knew of anything wrongful about what the tobacco companies did with respect to addiction she didn't know that they injected ammonia and other additives into the tobacco to intensify the addiction she didn't know that by approaching her when she was twelve and thirteen years old as a mere child th pharmacologically her addiction would be all the more intense because she started it as a twelve or thirteen year old and that therefore she would have much more trouble quitting when she's an adult the statistics show that most smokers are smokers by the time they're twenty if the defendants don't catch and by the time they're twenty they're going to be smoke free and that's a pharmacological fact that the defendants knew about causing minors to commit an illegal act to smoke cigarettes because of the pharmacology of it was she didn't know that so my point is the legislature has reaffirmed since all of mine that the standard for triggering a statute of limitations is the knowledge of or reason to know of wrongful conduct and that evidence is not here they did not present that evidence this in the district court this judgement does not rest on the plaintiff's knowledge or reason to know of the defendant's wrongful conduct more than a year before she sued  decision and its premises now now that now you're free look at california law afresh because of these later developments i mean i thought you said that some women didn't solomon doesn't apply because of the question that justice gould asked about is there a new issue here that wasn't insolvent the answer is yes the issue is did her later developing diseases did she have reason to know fully and open the door to all of california law what you find is four california supreme court decisions that support the two disease rule and those are hamilton in twenty two caliber fourth which was an asbestos disease mesothelioma and they said these are separate diseases they have separate causes of action they have separate statutes of limitation hamilton it's two thousand case twenty two california i'm going to cite ten cases that were not presented to the solomon court electronically you can get mr solomon street and see that none of these ten cases were presented that you were misled in the solomon case about the state of california law the second california case  potter in six cal fourth potter allows a plaintiff who has a toxic exposure and where the for the fear of cancer is based on a reasonable probability of getting cancer to sue for the fear before the cancer develops and implicit in potter allowing the plaintiff to sue for the fear of cancer is also allowing the plaintiff to sue for the cancer when it did later develops to suit two conditions two statutes of seventy four now let me go to two appellate cases that one has been cited one both have been cited martina's for an opinion by justice scouse at when he was on the court of appeal later became a supreme court judge one of the most brilliant judges california's ever had miscarriage of justice to throw the plaintiff out on the cataract claim which developed eighteen or twenty years later simply because there was a there was a significant but different injury eighteen years earlier and he points out the said he would have been laughed out of court yes thank you your honor i make one last discussion of the miller case which is a case that i think my colleague is going to rely on militarism old case miller is not this case because in miller the disease was the same disease the only reason the plaintiffs sued late was because of the misdiagnosis and what i hope you'll pay attention to and ask your staff to bring to your attention is the concurring opinion of justice earl johnson in the miller case again one of our brightest appellate judges a former professor at u and what he pointed out is to disney's rule he said our majority opinion in miller is not inconsistent with the two disease rule and he cited many cases from out of state that support the two disease rule and the majority did not disagree with him they just simply didn't discuss the two disease rule so miller has a case that supports this thank you all reserve my minute are binding in the absence of some basis there's been no intervening california supreme court decision that would allow a panel to set it aside and indeed as i argued earlier i think you can look at it as well as data that's how it's been described and even in the mix we need case there was presented and intervening some intervening california appellate decisions the panel said none of pertinent but then dropped a footnote indicating we found a case on our own from an intermediate california appellate court that would be controlling and then rejected it said we don't think the california supreme court will by this will adopt this rule and therefore it provides no basis for questioning our prior panel's decision i'm not saying that i think cumulation of a body of intermediate appellate could never provide a basis for raising the question concerning certification but we're not even close to that here because all you have is admittedly dicta in whiteley and i say explain before whitely although it does not admit that it on its own terms because it recognized that what rightly itself was saying on common knowledge was inconsistent with one another court of appeal had said in barker and it said while barker was picked up because the issue only goes so so far it only goes to the issue of common knowledge it doesn't address any of the other issues that were addressed in solomon and indeed the key issue about whether what you do when you're confronted with a procedure it rested stache limitations holding on and indeed the way it construes the statute of limitations in hamilton it found that in fact it had never still as of the time of the so that the decision had not yet been trigger and it also found that any issue about claims of living had been waived in the case so it does not in any way provide a basis for questioning the california state hearings to when injury will end it shows that the california legislature knows how to change the law when it wants to the fact that another statute was cited three eighty three forty point eight again is only program indication that the legislature knows how to change the one or where it thinks that it leads to unfair knows but there is nothing solomon that has been pointed to that provides any basis for undermining the conclusions that another panel of this court reached on the questions of california law that were presented there i would point out while i'm on the two injury rule that with field is not in fact a way to injury case i don't i don't think whitfield has very much to do with the and i don't think you get to it because it's a crease solomon case in any event but just for clarification because it was brought up in the twenty eight days for admission the decision in the new case has a discussion of diagnosed with anorexia in october of one nine hundred sixty three and in fact she had a brain tumor and the only issue that was relevant substantial limitations was when the claim against the county had accru under the government code and the issue it's very clear from the facts is whether or not there was a time lag in one nine hundred sixty four i believe it was with respect to when she became aware that th accounting was involved in the mouth practice as opposed to just the doctors because the doctors had been stupid first the county was added later in the counties that it was too late to add them to the suit so it is not a true injury case at all  again i don't think it's an important issue but i wanted to clarify for the record since i'm not previously had an opportunity to do that also this court's opinion in the narrow dean case which we cited specifically applies to the one injury rule in california in the context of fraud claim so again i think we don't have any basis for questioning california sit here and say to the one injury rule but this case is also not a suitable vehicle for  certification because of its posture here we have a case where nicotine nicotine addiction was specifically alleged as an injury that's in paragraphs thirty three to thirty five of the complaint but complain again as in injury moreover as judge wilson noted in his opinion at page five of his opinion he notes that in their own opposition even though they were trying to contest the issue of appreciable injury that in fact the plaintiff here actually characterized edition as one of her three quote appreciable injuries he recognized that in the opposition and noted that in his order so if there were if there were ever a suitable vehicle for certifying to the california supreme court and that there's no basis to do that this is not the right case in which to do that because a case in which the pla has alleged it so specifically as an injury saw on a monetary recovery and then made that kind of a comment in her own opposition is not does not really present the kinds of issues on which certification is being sought here moreover this case is in a second respect even stronger than solomon because in solomon the court had to address the issue of basically constructive knowledge here however there is actual knowledge right on the face of the complaint the complaint makes clear that she had knowledge of her addiction to nicotine at the time that she doing nicotine anonymous in one nine hundred ninety three that's entire graph thirty five of the complaint and applies it might if there were ever a case in which would be appropriate to certify the questions it would be where in fact there is a a stronger basis for questioning whether there was an appreciable injury or whether or not such a claim had been asserted but where these kinds of allegations are made on the plea to i'm a knowledge is there on the face of the complaint that's not a suitable vehicle for certification i also think that the experience in famed case with certification also counsels against doing so in the spain case the eleventh circuit certified some of the same questions that ms grisham is asking to be certified to the california supreme court indeed her brief notes that fact in the opening brief and what happened is there was essentially three years of delay in getting the response and the response was a fractured majority in which only asians didn't fact run starts or run when the addiction occurred although they're very short statement so concurrence it's very clear that what they were doing was taking the same approach that this court took in solomon and that is in effect the majority position of the alabama supreme court that came back to really eleventh circuit in spain and so for the three years of certification all that came back is the same answer that this court reached  which is that you don't need to get into the underlying or question of whether or not addiction is an appreciable injury when it is all over the face of the complaint in this respect and you can just then say that the statute of limitations applies from that point forward and then again with a one injury rule it clearly bars all of the claims for relief at this point the other arguments that the plaintiff has offered for distinguishing solomon are also unavailing plaintiff alleges that she was not diagnosed with periodontal disease until two thousand and one the solomon case because solomon made a similar allegation on page nine seventy two of the court's decision the court notes quote he was diagnosed with it's not clear in january two thousand and three that that was the basis for i trying to say that the complaint was timely in the court rejects that there's simply no basis for distinguishing clear with the citation to american tobacco as i described in the canonical case that there is not a need to know every single risk that can occur and once it is known that the product all of the injuries here stem from addiction that is is very clear in the complaint that everything is alleged to follow from the direction it is the agent that mediates and ultimately leads to all of  of harms that it was certain again reflecting the logic of solomon but making this not really a true to injury case so even if there are two injury rule applied this is not really a to injury rule emerge but here everything a merge is from addiction and then injuries are asserted to follow from that economic injuries and a variety of physical injuries in hamilton in the because if something is simply a matter of further manifestation of a prior injury it's pretty clear that that's going to be covered by the one injury rule so you need to separate them out and have them be separate manifestation but here that isn't true because everything is alleged to be ultimately caused by addiction but in many a man it's very very clear because of the miller case that which solomon appropriately relied upon that california is a one injury state and that there is not a sufficient basis in the intervening law since solomon to raise any question as to california sit here and see to it indeed what datapoints there are suggest that any change needs to come from the legislature and not from a and not from a panel of this court again we also are progre our papers the various tolling arguments that that have been made solomon relied on constructive knowledge but again here we have actual knowledge so if anything case is on all fours with that she always says that the fact that even there being controlling adverse precedent through a claim does not mean that the statue of limitations is told and so the fact that the claim would have failed or might have been viewed as failing under the law at the time is not a basis for tolling the statue of limitations under california law that is in fact exactly what jolley says as we've cited in our papers unless the court has any further questions i would submit you here on or hope i can do what you asked about whether we had to rely on only supreme court cases and the answer is no intermediate subsequent appellate decisions are sufficient grounds to overcome or avoid a prior decision that's what in re watch said case the wagner case and the richmond case chevron wagner and richmond acknowledged richmond's not published but the reason it wasn't published under our publication rule is that it didn't make a significant contribution to the law because california law illness that progressed and was mis diagnosed there was no second disease in miller and justice johnson's concurring opinion which i commend you to read makes clear that in a proper two disease case which is what we have here disease one addiction disease to periodontal disease much later in time a pulmonary disease much later in time only manifest in two thousand and one justice johnson makes clear in his concurring decision the california law would validate two diseases in california council referred to the hamilton case that's correct here is the test and ask yourself if we didn't meet it these days diseases quote developed by means of wholly different mechanisms at widely different rate affected different tissues and organs manifested themselves at different times and by different symptoms and carried a very different outcomes we have two diseases here and our complaint was timely thank you