FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NIKKI POOSHS, 

Plaintiff-Appellant,

v.

PHILLIP MORRIS USA, INC.; PHILIP

MORRIS COMPANIES, INC. R.J.

REYNOLDS TOBACCO HOLDINGS,

INC.; R.J. REYNOLDS TOBACCO

COMPANY; NABISCO GROUP No. 08-16338

HOLDINGS CORP.; NABISCO INC.; D.C. No.

BROWN AND WILLIAMSON TOBACCO 3:04-cv-01221-PJH

CORPORATION, individually and as Northern District of

successor by merger to The California,

American Tobacco Company and San Francisco

its predecessors in interest; BRITISH 

ORDER AMERICAN TOBACCO COMPANY PLC; CERTIFYING THE LORILLARD TOBACCO COMPANY;

QUESTION TO LORILLARD INC.; LIGGETT GROUP THE STATE INCORPORATED; LIGGETT & MYERS SUPREME COURT INC.; LIGGETT AND MYERS TOBACCO OF CALIFORNIA COMPANY; VECTOR GROUP LTD.;

HILL & KNOWLTON INC TOBACCO

INSTITUTE, INC.; COUNCIL FOR

TOBACCO RESEARCH USA

INCORPORATED; DNA PLANT

TECHNOLOGY, CORPORATION;

SAFEWAY INC.,

Defendants-Appellees. 

Filed April 1, 2009

3899
Before: Betty B. Fletcher and M. Margaret McKeown,

Circuit Judges, and William T. Hart,* District Judge.

ORDER

PER CURIAM: 

We certify to the California Supreme Court the questions

set forth in Part II of this order. The answer to the certified

questions depend upon California law, and the answers are

determinative to the outcome of the present appeal. We find

no clear controlling precedent in the decisions of the California Supreme Court. The answer provided by the California

Supreme Court to the certified questions will be followed by

this court. 

All further proceedings in this case are stayed pending final

action by the California Supreme Court, and this case is withdrawn from submission until further notice from this court. If

the California Supreme Court accepts the certified questions,

the parties shall file a joint report three months after the date

of acceptance and every three months thereafter, advising us

of the status of the proceedings. We note that this appeal was

brought before us on an expedited basis and respectfully

request that the California Supreme Court also consider an

expedited resolution in light of appellant’s terminal illness. 

I. CAPTION AND COUNSEL 

A. CASE TITLE, NUMBER, AND DESIGNATION

OF PETITIONER

The caption of this case is as follows:

*The Honorable William T. Hart, Senior District Judge for the Northern

District of Illinois, sitting by designation. 

3900 POOSHS v. PHILLIP MORRIS USA, INC.
NIKKI POOSHS, 

Plaintiff - Appellant, 

v. 

PHILLIP MORRIS USA, INC.; PHILIP MORRIS COMPANIES, INC. R.J. REYNOLDS TOBACCO HOLDINGS,

INC.; R.J. REYNOLDS TOBACCO COMPANY; NABISCO

GROUP HOLDINGS CORP.; NABISCO INC.; BROWN

AND WILLIAMSON TOBACCO CORPORATION, individually and as successor by merger to The American Tobacco

Company and its predecessors in interest; BRITISH AMERICAN TOBACCO COMPANY PLC; LORILLARD

TOBACCO COMPANY; LORILLARD INC.; LIGGETT

GROUP INCORPORATED; LIGGETT & MYERS INC.;

LIGGETT AND MYERS TOBACCO COMPANY; VECTOR GROUP LTD.; HILL & KNOWLTON INC TOBACCO

INSTITUTE, INC.; COUNCIL FOR TOBACCO

RESEARCH USA INCORPORATED; DNA PLANT TECHNOLOGY, CORPORATION; SAFEWAY INC., 

Defendants - Appellees. 

The case number of this appeal is 08-16338. Nikki Pooshs

is deemed the petitioner in this request because she appealed

the district court’s ruling on these issues. 

B. NAMES AND ADDRESSES OF COUNSEL FOR

THE PARTIES

For Nikki Pooshs: David Wayne Fermino, BRAYTON

PURCELL, LLP, 222 Rush Landing Road, Novato, CA

94948-6169; James P. Nevin, BRAYTON PURCELL, LLP,

222 Rush Landing Road, Novato, CA 94948-6169; Gilbert L.

Purcell, BRAYTON PURCELL, LLP, 222 Rush Landing

Road, Novato, CA 94948-6169. 

For Phillip Morris: Daniel Paul Collins, MUNGER, TOLLES & OLSON LLP, 35th Floor, 355 South Grand Avenue,

POOSHS v. PHILLIP MORRIS USA, INC. 3901
Los Angeles, CA 90071-1560; James Lee Dumas, SHOOK

HARDY & BACON, LLP, Suite 600, 333 Bush St., San Francisco, CA 94104-2828; Jenny Bown, SHOOK HARDY &

BACON, LLP, Suite 600, 333 Bush St., San Francisco, CA

94104-2828; Alicia J. Donahue, SHOOK HARDY &

BACON, LLP, Ste. 600, 333 Bush St., San Francisco, CA

94104-2828; Chris Johnson, Esquire, SHOOK HARDY &

BACON, LLP, Suite 600, 333 Bush St., San Francisco, CA

94104-2828. 

For R.J. Reynolds Tobacco Co.: Paul Crist, JONES DAY,

901 Lakeside Avenue, Cleveland, OH 44114; Ashlie Case,

JONES DAY, North Point 901 Lakeside Ave., Cleveland, OH

44114; Peter N. Larson, JONES DAY, 26th Floor, 555 California Street, San Francisco, CA 94104. 

For Brown and Williamson Tobacco Corporation: Ashlie

Case (see above); Paul Crist (see above); Peter N. Larson (see

above). 

For Lorillard Tobacco Company: Kevin Underhill,

SHOOK HARDY & BACON, LLP, Suite 600, 333 Bush St.,

San Francisco, CA 94104-2828; Jenny Brown, Esquire,

SHOOK HARDY & BACON, LLP, Suite 600, 333 Bush St.,

San Francisco, CA 94104-2828; Alicia J. Donahue (see

above); James Lee Dumas (see above); Chris Johnson (see

above). 

For Hill & Knowlton, Inc.: Stanley G. Roman, KRIEG

KELLER SLOAN REILLEY & ROMAN, LLP, 4th Floor,

114 Sansome St., San Francisco, CA 94104; Tracy M. Clements, KRIEG KELLER SLOAN REILLEY & ROMAN, LLP,

4th Floor, 114 Sansome St. San Francisco, CA 94104. 

For DNA Plant Technology Corp.: J. Leah Castella,

MCDONOUGH HOLLAND & ALLEN PC, 9th Floor, 1901

Harrison Street, Oakland, CA 94612; Raymond C. Marshall,

3902 POOSHS v. PHILLIP MORRIS USA, INC.
BINGHAM McCUTCHEN, LLP, Three Embarcadero Center,

San Francisco, CA 94111-4067. 

For Safeway, Inc.: James Lee Dumas (see above).

II. QUESTIONS OF LAW

By this order we certify to the California Supreme Court

for decision the dispositive1 questions of state law before us:

(1) Under California law, when may two separate physical

injuries arising out of the same wrongdoing be conceived of

as invading two different primary rights? 

(2) Under California law, may two separate physical injuries

—both caused by a plaintiff’s use of tobacco—be considered

“qualitatively different” for the purposes of determining when

the applicable statute of limitations begins to run? 

Our phrasing of the questions should not restrict the California Supreme Court’s consideration of the issues involved.

We will accept the decision of the California Supreme Court,

which is the highest authority on the interpretation of California law. Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1164 (9th

Cir. 1995) (holding that the Ninth Circuit is bound to follow

the holdings of the California Supreme Court when applying

California law). 

III. STATEMENT OF FACTS

This diversity case arises from an injury suffered by

plaintiff-appellant Nikki Pooshs as the alleged result of smoking cigarettes manufactured and marketed by defendantsappellees. The ten remaining claims, which the parties agree

1We conclude that whether Pooshs’s lawsuit can proceed at this juncture

depends entirely upon the decision provided by the California Supreme

Court. If either Pooshs’s 1989 diagnosis of chronic obstructive pulmonary

disease or her 1990 diagnosis of periodontal disease started the limitations

period for all tobacco related physical injuries, then Pooshs’s current suit

for damages caused by her terminal lung cancer will be time-barred. 

POOSHS v. PHILLIP MORRIS USA, INC. 3903
are governed by the substantive law of California, are: (1)

negligence; (2) product liability; (3) misrepresentation; (4)

fraud and deceit (intentional misrepresentation); (5) fraud and

deceit (concealment); (6) fraud and deceit (false promise); (7)

fraud and deceit (negligent misrepresentation); (8) concert of

action (conspiracy); (9) pre-1969 failure to warn; and (10)

off-label failure to warn.2 On summary judgment,3 the district

court held that all of Pooshs’s claims are time-barred. See

Pooshs v. Philip Morris, USA, Inc., 2008 WL 2220422 (N.D.

Cal. May 27, 2008) (“Pooshs II”). 

For the purposes of summary judgment, the following facts

were accepted as true. Pooshs smoked tobacco products from

1953 until 1991. When Pooshs started smoking, she was

unaware of the potential impact smoking would have on her

health. The defendants’ conduct contributed to this by concealing facts about the addictive nature of smoking and the

associated health hazards. In 1989, Pooshs was diagnosed

with chronic obstructive pulmonary disease (“COPD”).

Pooshs believed the COPD was caused by smoking. In 1990,

Pooshs was diagnosed with periodontal disease. Her periodontist told her the disease was directly caused by smoking.

Pooshs did not bring suit against the defendants for either of

these ailments. On January 31, 2003, Pooshs was diagnosed

2Counts (2), (9), and (10) were not brought against defendant Hill &

Knowlton. 

3The district court previously dismissed the case based on application

of the statute of limitations. See Pooshs v. Altria Group, Inc., 331 F. Supp.

2d 1089 (N.D. Cal. 2004). While that ruling was pending on appeal, the

parties jointly moved to remand the case to the district court for further

consideration in light of Grisham v. Philip Morris U.S.A., Inc., 40 Cal. 4th

623, 151 P.3d 1151 (2007). Grisham concerned certified questions from

two Ninth Circuit cases involving statute of limitations issues for tobaccorelated personal injuries. See Grisham v. Philip Morris U.S.A., 403 F.3d

631 (9th Cir. 2005) (per curiam). See also Grisham v. Philip Morris

U.S.A., 482 F.3d 1131 (9th Cir. 2007) (per curiam) (remanding appeal following California Supreme Court ruling on certified questions). Following

the remand of the first appeal, defendants moved for summary judgment.

3904 POOSHS v. PHILLIP MORRIS USA, INC.
with lung cancer. It is uncontested that the etiology for lung

cancer is distinct from the etiology for COPD and periodontal

disease. Just under a year later, Pooshs filed the present suit

seeking relief for the lung cancer only. The district court held

that Pooshs’s claims were time-barred because her “awareness by the early 1990s that she suffered from serious

smoking-related illnesses started the statute of limitations running as to her personal injury claim.” Pooshs v. Phillip Morris

USA, Inc., 2008 WL 2220422, 16 (N.D. Cal. 2008). 

IV. THE NEED FOR CERTIFICATION 

In Grisham v. Philip Morris, the California Supreme Court

discussed the “rule against splitting a cause of action” and its

relationship to the rule that “the infliction of appreciable and

actual harm, however uncertain in amount, will commence the

running of the statute of limitations.” 151 P.3d 1151, 1161

(Cal. 2007) (quoting Davies v. Krasna, 535 P.2d 1161 (Cal.

1975)) (internal quotes omitted). The Court recognized that

“[t]hese two rules may intersect . . . when a single wrongdoing gives rise to two or more different injuries, manifesting at

different times, raising the question whether the two injuries

are invasions of two different primary rights.” Grisham, 151

P.3d at 1162. The California Supreme Court also recognized

that different courts in California have responded differently

to the issues created by the intersection of these two rules

when an earlier injury and a later injury can both be traced to

a single source. Id. Specifically, “[s]ome courts have held that

the earlier injury, even if less serious than the later injury, sets

the statute running as to both injuries, and expiration of the

statute on the earlier injury bars a suit on the later one.” Id.

(citing Miller v. Lakeside Vill. Condo Ass’n., 1 Cal. App. 4th

1611 (1991) (sickness from exposure to mold in condominium unit started limitations period for later sickness of greater

severity which was also caused by the initial exposure); and

DeRose v. Carswell, 196 Cal. App. 3d 1011 (1987) (injuries

from rape started limitations period for later psychological

problems stemming from the rape)). However, “[o]ther courts

POOSHS v. PHILLIP MORRIS USA, INC. 3905
have found that, under various theories, suit on a later manifesting injury was not time-barred even when suit on the earlier injury would be.” Grisham, 151 P.3d 1162 (citing

Zambrano v. Dorough, 179 Cal. App. 3d 169, 174 (1986)

(tubal pregnancy which led to hospitalization was a “different

type” of injury than later hysterectomy even though they were

both caused by problems stemming from the same misdiagnosis); and Martinez-Ferrer v. Richardson-Merrell, Inc., 105

Cal. App. 3d 316, 326-327 (1980) (concluding that severe

dermatitis was a different type of injury than cataracts that

developed 16 years later even though both conditions were

caused by the same drug)). 

After recognizing this split of authority among California

courts, the California Supreme Court declined to address the

specific issue that arises in this appeal: “whether and under

what circumstances two different physical injuries arising out

of the same wrongdoing can give rise to two separate lawsuits

. . . .” Grisham, 151 P.3d at 1163. Instead, the Court resolved

the issue before it by determining that Grisham had alleged

two “different types of injury, one serious physical injury or

injuries, the other an economic injury.” Id. Consequently, the

California Supreme Court did not resolve whether two physical injuries may be thought of as invading different primary

rights, and when, if ever, two physical injuries that were both

caused by prolonged use of tobacco products may give rise to

separate limitations periods. Because the Court specifically

reserved this question, we view this case as particularly

appropriate for certification. 

The California Supreme Court’s resolution of the certified

questions will necessarily determine the outcome of Pooshs’s

pending appeal. See Cal. Rules of Court 29.8(a)(1). If the

Court decides that, under California law, either Pooshs’s 1989

diagnosis of COPD or her 1990 diagnosis of periodontal disease started the limitations period for all tobacco related physical injuries, then Pooshs’s current suit for damages caused by

her terminal lung cancer will be time-barred, and we will

3906 POOSHS v. PHILLIP MORRIS USA, INC.
affirm the district court’s dismissal of Pooshs’s complaint.

Conversely, if the California Supreme Court concludes that

the limitations period did not begin with either of Pooshs’s

prior diagnoses, we will reverse the district court’s dismissal

of Pooshs’s claims and remand for further proceedings consistent with the decision of the California Supreme Court. 

V. ACCOMPANYING MATERIALS

The clerk of this court is directed to file in the California

Supreme Court, under official seal of the United States Court

of Appeals for the Ninth Circuit, copies of all relevant briefs

and excepts of record, and an original and ten copies of this

request with a certificate of service on the parties pursuant to

California Rules of Court 29.8(b)(1), (c), (d). 

Further proceedings before us are stayed pending the California Supreme Court’s decision whether it will accept

review, and if so, our receipt in due course of the decision to

the certified questions of California law. These cases are withdrawn from submission until further order from this court.

The panel will resume control and jurisdiction of these cases

upon receiving a decision from the California Supreme Court

or upon that court’s decision to decline to answer the certified

questions. The parties shall file a joint report informing this

court whether the California Supreme Court will decide the

certified questions, after that decision is made. If the California Supreme Court accepts the certified questions, the parties

shall file a joint status report to our court every three months

after the date of acceptance, or more frequently if circumstances warrant. 

IT IS SO ORDERED.

POOSHS v. PHILLIP MORRIS USA, INC. 3907


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