1

Filed 5/5/11

IN THE SUPREME COURT OF CALIFORNIA

NIKKI POOSHS, )

)

Plaintiff and Appellant, )

) S172023

v. )

) 9th Cir. No. 08-16338

PHILIP MORRIS USA, INC., et al., )

) N.D. Cal. No.

Defendants and Respondents. ) 3:04-cv-01221-PJH

____________________________________)

Plaintiff was a cigarette smoker for 35 years, from 1953 through 1987. In 

1989, she was diagnosed with chronic obstructive pulmonary disease (COPD), 

which plaintiff knew was caused by her smoking habit. Nevertheless, she did not 

sue the manufacturers of the cigarettes that she had smoked, and the statutory 

period for doing so elapsed.

In 1990 or 1991, plaintiff was diagnosed with periodontal disease, which 

she knew was caused by her smoking habit. Again, she did not sue the various 

cigarette manufacturers, and the statutory period for doing so elapsed.

In 2003, plaintiff was diagnosed with lung cancer. This time, she sued. We 

must decide whether the lawsuit is barred by the statute of limitations, which 

requires that a suit be brought within a specified period of time after the cause of 

action accrues.

The matter comes to us from the United States Court of Appeals for the 

Ninth Circuit. (See Cal. Rules of Court, rule 8.548.) The Ninth Circuit has asked 

us to answer two questions: “(1) Under California law, when may two separate 
2

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?” (Pooshs v. Phillip Morris USA, Inc. (9th Cir. 

2009) 561 F.3d 964, 966-967 (Pooshs).) In granting the Ninth Circuit‟s request, 

we restated the two questions in a single question: “When multiple distinct 

personal injuries allegedly arise from smoking tobacco, does the earliest injury 

trigger the statute of limitations for all claims, including those based on the later 

injury?”

We hold that two physical injuries — both caused by the same tobacco use 

over the same period of time — can, in some circumstances, be considered 

“qualitatively different” for purposes of determining when the applicable statute of 

limitations period begins to run. (Grisham v. Philip Morris U.S.A., Inc. (2007) 40 

Cal.4th 623, 645 (Grisham).) Specifically, when a later-discovered disease is 

separate and distinct from an earlier-discovered disease, the earlier disease does 

not trigger the statute of limitations for a lawsuit based on the later disease. This 

holding is consistent with the conclusions reached by courts in other jurisdictions 

addressing the same issue, often in the context of asbestos-related litigation.1 We 

 

1 The leading case is Wilson v. Johns-Manville Sales Corp. (D.C. Cir. 1982) 

684 F.2d 111, 112 (Wilson), in which a federal Court of Appeals concluded “that 

time to commence litigation does not begin to run on a separate and distinct 

disease until that disease becomes manifest.” Cases from jurisdictions throughout 

the United States have followed Wilson. (See, e.g., Nicolo v. Philip Morris, Inc.

(1st Cir. 2000) 201 F.3d 29; Jackson v. Johns-Manville Sales Corp. (5th Cir. 1984) 

727 F.2d 506; Goodman v. Mead Johnson & Co. (3d Cir. 1976) 534 F.2d 566; 

Agles v. Merck & Co., Inc. (D.Hawaii 1995) 875 F.Supp. 701; Anderson v. W.R. 

Grace & Co. (D.Mass. 1986) 628 F.Supp. 1219; Fearson v. Johns-Manville Sales 

Corp. (D.D.C. 1981) 525 F.Supp. 671; Sheppard v. A.C. & S. Co. (Del.Super.Ct. 

(footnote continued on next page)
3

limit our holding to latent disease cases, without deciding whether the same rule 

should apply in other contexts.

In addressing the issue presented here, we emphasize that our role is only to 

answer the “question of California law” that the Ninth Circuit posed to us. (Cal. 

Rules of Court, rule 8.548(a).) We play no role in assessing the merits of 

plaintiff‟s factual assertions, which must be determined in the federal court. 

Specifically, plaintiff asserted in the federal district court that her lung cancer is a 

disease that is separate and distinct from her other two smoking-related diseases. 

Although this assertion appears plausible on its face, its resolution requires 

medical expertise. Here, the factual record was never developed because the 

federal court considered plaintiff‟s separate-disease assertion to be irrelevant for 

purposes of applying the statute of limitations, and it granted summary judgment 

for defendants. On plaintiff‟s appeal to the Ninth Circuit, that court then asked us 

whether plaintiff‟s assertion that her diseases are separate and distinct has any 

relevance under California statute of limitations law. The Ninth Circuit‟s 

reference order states: “For the purposes of summary judgment . . . [i]t is 

uncontested that the etiology for lung cancer is distinct from the etiology for 

 

(footnote continued from previous page)

1985) 498 A.2d 1126, affd. in Keene Corp. v. Sheppard (Del. 1986) 503 A.2d 192; 

VaSalle v. Celotex Corp. (Ill.App.Ct. 1987) 515 N.E.2d 684; Pierce v. JohnsManville Sales Corp. (Md. 1983) 464 A.2d 1020; Board of Trustees v. Mitchell

(Md.Ct.Spec.App. 2002) 800 A.2d 803; Larson v. Johns-Manville Sales Corp.

(Mich. 1986) 399 N.W.2d 1; Sweeney v. General Printing Inc. (N.Y.App.Div. 

1994) 621 N.Y.S.2d 132; Marinari v. Asbestos Corp., Ltd. (Pa.Super.Ct. 1992) 

612 A.2d 1021; Shadle v. Pearce (Pa.Super.Ct. 1981) 430 A.2d 683; Potts v. 

Celotex Corp. (Tenn. 1990) 796 S.W.2d 678; Pustejovsky v. Rapid-American 

Corp. (Tex. 2000) 35 S.W.3d 643; Niven v. E.J. Bartells Co. (Wn.Ct.App. 1999) 

983 P.2d 1193; see also cases cited in Grisham, supra, 40 Cal.4th at p. 643, fn. 

12.)
4

COPD and periodontal disease.”2 (Pooshs, supra, 561 F.3d at p. 967.) Therefore, 

in addressing the issue before us, we assume plaintiff‟s assertion to be true, and we 

focus solely on its legal implications.

I

Plaintiff Nikki Pooshs filed this action in San Francisco Superior Court in 

January 2004, less than a year after she was diagnosed with lung cancer. The 

complaint named various corporate defendants, many of them cigarette 

manufacturers. Plaintiff alleged that she smoked cigarettes from 1953 until the 

end of 1987, that she was ignorant of many of the dangers associated with 

cigarette smoking, and that defendants misled her about those dangers, concealed 

from her the addictive properties of tobacco, and took other steps to induce her to 

smoke. She asserted 13 theories of recovery, including allegations of negligence, 

products liability, misrepresentation, fraud, conspiracy, failure to warn, unfair 

competition, and false advertising.

Defendants removed the case to federal court and then filed several motions 

to dismiss. After several dismissals, only four cigarette manufacturers and their 

public relations agent remained as defendants. These remaining defendants sought 

dismissal of the complaint, citing the Ninth Circuit‟s decision in Soliman v. Philip 

Morris Inc. (9th Cir. 2002) 311 F.3d 966 (Soliman). In that case, a California 

plaintiff alleged that he had smoked cigarettes since the late 1960‟s and could not 

quit. (Id. at p. 969.) He claimed nicotine addiction as one of his injuries, in 

addition to several respiratory and emotional disorders. (Id. at pp. 969-970, 972.) 

 

2 At oral argument before this court, defendants clarified that this factual 

point is “uncontested” only for purposes of the summary judgment issue. 

Defendants contend that even if plaintiff‟s diseases are separate and distinct, the 

point is irrelevant to the application of the statute of limitations bar, and the 

validity of that contention is the legal issue before us.
5

He further claimed that he did not learn that smoking was addictive (and that he 

was addicted) until late 1999. In March 2000, he sued various tobacco companies 

in state court. (Id. at p. 970.) The Soliman defendants removed the case to federal 

court and then moved to dismiss the complaint on statute of limitations grounds. 

The defendants doubted that the plaintiff, who had smoked for 32 years, could 

have discovered his health problems only months before bringing suit. They 

argued that he had constructive knowledge much earlier, and therefore his suit was 

time-barred. The district court, applying California law, dismissed the complaint 

because of expiration of the statute of limitations period. The plaintiff appealed to 

the Ninth Circuit. (Ibid.)

The Ninth Circuit affirmed the district court‟s judgment in Soliman, supra, 

311 F.3d 966. The Ninth Circuit observed that the plaintiff alleged addiction as 

one of his injuries and he had constructive knowledge of that addiction long before 

he filed suit.3 (Soliman, at pp. 972-973.) The court reasoned that the general 

public is “presumed by California law to know that smoking causes addiction” (id.

at p. 974) and therefore a “longtime smoker” like the plaintiff may not claim 

delayed discovery of that injury (id. at p. 975). Because the plaintiff could be 

“charged with this knowledge” long before he filed suit, the Ninth Circuit in 

Soliman concluded that the action was time-barred. (Ibid.)

Here, relying on Soliman, supra, 311 F.3d 966, the federal district court 

granted defendants‟ motion to dismiss. The court found that “while the plaintiff in 

 

3 In Soliman, supra, 311 F.3d 966, the Ninth Circuit did not decide whether, 

under California law, addiction alone is an actionable injury. Instead, the court 

relied on the fact that the plaintiff had alleged addiction as an injury. The court 

said: “Soliman can‟t claim that his addiction is an appreciable injury and, at the 

same time, ask us to ignore it in determining when his claim accrued.” (Id. at 

p. 973.)
6

the present case may not claim addiction as an injury in quite so specific a way as 

did the plaintiff in Soliman, the allegation that the plaintiff here became addicted 

to nicotine and was injured by that addiction runs as a thread throughout the 

complaint.” (Pooshs v. Altria Group, Inc. (N.D. Cal. 2004) 331 F.Supp.2d 1089, 

1095.) The district court found Soliman to be controlling and dismissed with 

prejudice plaintiff‟s claims against defendants.

Plaintiff appealed to the Ninth Circuit, which held the appeal in abeyance 

pending our decision in Grisham, supra, 40 Cal.4th 623. In Grisham, we 

considered whether the Ninth Circuit in Soliman, supra, 311 F.3d 966, had 

correctly construed California law. Grisham addressed these two questions: (1) Is 

there a presumption under California law that, at least since 1988, the general 

public has been aware of the addictive nature and health dangers of smoking 

(thereby barring under the statute of limitations a cause of action for addictionbased economic losses) and (2) If the cause of action for addiction-based economic

losses is time-barred, is a claim for physical injuries resulting from the same 

tobacco use also time-barred? (Grisham, supra, 40 Cal.4th at p. 628.)

With respect to the first question, we held in Grisham, supra, 40 Cal.4th 

623, that there is no special presumption that smokers are aware of the dangers of 

smoking. We observed, however, that there is a general, rebuttable presumption 

that a plaintiff has knowledge of the wrongful causes of an injury. To rebut this 

general presumption a plaintiff must make certain specific allegations that the 

plaintiff in Grisham had not made and, in light of her other allegations, could not 

plausibly make. (Id. at pp. 638-639.) Accordingly, in that case the plaintiff‟s 

economic injury claim was time-barred under the applicable statute of limitations. 

(Id. at p. 639.)

With respect to the second question in Grisham, supra, 40 Cal.4th 623, we 

expressly chose not to decide whether a claim alleging smoking-related physical 
7

injury involves a different primary right than a claim alleging smoking-related 

economic injury. (Id. at pp. 643, 646.) Instead, we decided the case solely as a 

matter of statute of limitations law. We noted that economic injury and physical 

injury are “qualitatively different” types of injury (id. at p. 645; see also id. at 

p. 643), and we concluded that an appreciable injury of the first type does not 

commence the statutory period for suing based on a later-discovered injury of the 

second type (id. at p. 644). We did not, however, address in Grisham whether this 

same distinction would apply in a case like the one now before us, where both 

injuries are physical. (Id. at p. 643.)

While Grisham, supra, 40 Cal.4th 623, was pending before us, defendants 

in this case took plaintiff‟s deposition and learned that she had suffered from 

significant medical effects from smoking long before she was diagnosed with lung 

cancer and long before she filed her current, lung-cancer-based lawsuit. 

Specifically, she was diagnosed in 1989 with COPD, which is a diagnosis used to 

describe both emphysema and chronic bronchitis. Plaintiff also admitted knowing 

as early as 1989 that this pulmonary disease was caused by smoking. And later, in 

1990 or 1991, she was diagnosed with periodontal disease, which her periodontist 

told her was caused by smoking. She did not sue defendants for either of these 

diseases despite knowing that they were caused by smoking.

After we decided Grisham, supra, 40 Cal.4th 623, the Ninth Circuit vacated 

the district court‟s judgment in this case and remanded the matter to that court. 

Defendants then moved for summary judgment, this time asserting that plaintiff‟s 

physical injuries diagnosed in 1989 (COPD) and in 1990 or 1991 (periodontal 

disease) commenced the statutory period for bringing her present action, which is 

based on the third disease (lung cancer). Having suffered significant physical 

injuries with knowledge that smoking was the cause of those injuries, and having 

failed to sue defendants within the applicable statutory periods, plaintiff could not 
8

— in defendants‟ view — later bring suit and assert that her physical injuries 

turned out to be worse than previously thought. Allowing the suit under those 

circumstances, defendants asserted, would conflict with the well-settled rule that a 

statute of limitations starts to run when the plaintiff suffers “appreciable and actual 

harm, however uncertain in amount.” (Davies v. Krasna (1975) 14 Cal.3d 502, 

514 (Davies); see also DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1022 

(DeRose).)

Plaintiff responded that her three physical injuries (COPD, periodontal 

disease, and lung cancer) were separate diseases, and that each was therefore the 

basis of a distinct primary right. Plaintiff stated “that COPD is a separate illness, 

which does not pre-dispose or lead to lung cancer and that it has nothing 

medically, biologically, or pathologically to do with lung cancer.” She further 

argued that the primary right at issue here is not the right to be free from the 

wrongful exposure to tobacco smoke; rather, it is the right to be free from lung 

cancer caused by the wrongful exposure to tobacco smoke, and that this primary 

right is different from the right to be free from COPD or from periodontal disease

caused by the wrongful exposure to tobacco smoke. The federal district court, to 

which the case had been remanded by the Ninth Circuit, rejected that argument.

In the view of the federal district court, plaintiff‟s various physical injuries 

were merely different ways in which she was damaged by a single alleged wrong 

(tobacco exposure), like suffering a broken arm and a broken leg from a single car 

accident. To draw distinctions among the different types of physical injury (i.e., 

COPD, periodontal disease, and lung cancer) that plaintiff suffered from smoking 

and then to allow separate suits for each injury, would — the district court said —

conflict with the rule against splitting a cause of action: “The longstanding rule in 

California . . . is that „[a] single tort can be the foundation for but one claim for 
9

damages.‟ ” (DeRose, supra, 196 Cal.App.3d at p. 1024, fn. 5.) Accordingly, the 

district court granted summary judgment for defendants.

Plaintiff again appealed to the Ninth Circuit, which then asked us for 

clarification of California law on the application of the statute of limitations when 

two separate diseases arise at different times from the same alleged wrongdoing. 

(Pooshs, supra, 561 F.3d at pp. 966-967.) We granted the Ninth Circuit‟s request.

II

A statute of limitations strikes a balance among conflicting interests. If it is 

unfair to bar a plaintiff from recovering on a meritorious claim, it is also unfair to 

require a defendant to defend against possibly false allegations concerning longforgotten events, when important evidence may no longer be available. Thus, 

statutes of limitations are not mere technical defenses, allowing wrongdoers to 

avoid accountability. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 395-397.) 

Rather, they mark the point where, in the judgment of the legislature, the equities 

tip in favor of the defendant (who may be innocent of wrongdoing) and against the 

plaintiff (who failed to take prompt action): “[T]he period allowed for instituting 

suit inevitably reflects a value judgment concerning the point at which the interests 

in favor of protecting valid claims are outweighed by the interests in prohibiting 

the prosecution of stale ones.” (Johnson v. Railway Express Agency (1975) 421 

U.S. 454, 463-464.)

Critical to applying a statute of limitations is determining the point when 

the limitations period begins to run. Generally, a plaintiff must file suit within a 

designated period after the cause of action accrues. (Code Civ. Proc., § 312.) A 

cause of action accrues “when [it] is complete with all of its elements” — those 

elements being wrongdoing, harm, and causation. (Norgart v. Upjohn Co., supra, 

21 Cal.4th at p. 397.)
10

Application of the accrual rule becomes rather complex when, as here, a 

plaintiff is aware of both an injury and its wrongful cause but is uncertain as to 

how serious the resulting damages will be or whether additional injuries will later 

become manifest. Must the plaintiff sue even if doing so will require the jury to 

speculate regarding prospective damages? Or can the plaintiff delay suit until a 

more accurate assessment of damages becomes possible? Generally, we have 

answered those questions in favor of prompt litigation, even when the extent of 

damages remains speculative. Thus, we have held that “the infliction of 

appreciable and actual harm, however uncertain in amount, will commence the 

statutory period.” (Davies, supra, 14 Cal.3d at p. 514.)

The most important exception to that general rule regarding accrual of a 

cause of action is the “discovery rule,” under which accrual is postponed until the 

plaintiff “discovers, or has reason to discover, the cause of action.” (Norgart v. 

Upjohn Co., supra, 21 Cal.4th at p. 397.) Discovery of the cause of action occurs 

when the plaintiff “has reason . . . to suspect a factual basis” for the action. (Id. at 

p. 398; see also Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.) “The 

policy reason behind the discovery rule is to ameliorate a harsh rule that would 

allow the limitations period for filing suit to expire before a plaintiff has or should 

have learned of the latent injury and its cause.” (Buttram v. Owens-Corning 

Fiberglas Corp. (1997) 16 Cal.4th 520, 531.)

III

Defendants‟ core argument is that plaintiff‟s 1989-diagnosed COPD, either 

alone or in combination with the 1990- or 1991-diagnosed periodontal disease, 

constituted “appreciable and actual harm” (Davies, supra, 14 Cal.3d at p. 514), 

triggering the running of the pertinent statute of limitations on her indivisible 

cause of action for smoking-related injury. In 2003, plaintiff was diagnosed with 

lung cancer, which led her to sue defendants. As of 1991, defendants assert, 
11

plaintiff had suffered actual harm, her damages were not merely nominal,4 and she 

knew that the harm she had suffered was from smoking. Therefore, in defendants‟ 

view, plaintiff should have brought her lawsuit at that time. That she might 

eventually develop lung cancer in 2003 was, according to defendants, merely an 

uncertainty as to the amount of harm, which did not delay the running of the 

statute of limitations. In short, defendants‟ view is that plaintiff could have sued 

in 1991 but failed to do so. Because defendants‟ argument depends heavily on the 

“appreciable and actual harm” rule we announced in Davies, supra, 14 Cal.3d at 

page 514, and then clarified in Grisham, supra, 40 Cal.4th at page 644, we discuss 

those cases in detail below.

Unlike this case, Davies, supra, 14 Cal.3d 502, was not a personal injury 

case. Rather, Davies involved a cause of action for “breach of confidence” — that 

is, the breach of an obligation, imposed by law, to maintain the confidentiality of a 

story idea.5 In 1951, the plaintiff, Valentine Davies, submitted a written story in 

confidence to the defendant, Norman Krasna, who later incorporated the idea into 

a successful Broadway play. (Davies, at pp. 504-505, 511.) Davies knew as early 

as 1955 that Krasna had breached his obligation to maintain the confidentiality of 

the story (id. at p. 512), and Davies suffered actual harm at that time (because the 

breach “ „substantially destroyed the marketability of [the] story‟ ” (id. at p. 514)). 

Nevertheless, Davies did not sue Krasna until 1958, when Krasna began profiting 

 

4 According to the United States Department of Health & Human Services, 

COPD is the fourth leading cause of death in the United States. (See Centers for 

Disease Control and Prevention, Nat. Center for Health Statistics, Leading Causes 

of Death <http://www.cdc.gov/nchs/fastats/lcod.htm> [as of May 5, 2011].)

5 This court‟s decision in Davies, supra, 14 Cal.3d 502, did not actually 

recognize the validity of this “breach of confidence” cause of action; instead, we 

assumed (based on the law of the case) that the plaintiff had stated a valid cause of 

action, and we proceeded to address the statute of limitations issue. (Id. at p. 508.)
12

financially from the story. We held that the applicable two-year statute of 

limitations began to run in 1955 when Davies first learned of the breach and 

suffered “appreciable and actual harm.” In that context, we said: “[N]either 

uncertainty as to the amount of damages nor difficulty in proving damages tolls 

the period of limitations.” (Ibid.)

Significantly, in Davies, supra, 14 Cal.3d 502, we were considering only a 

single type of injury (economic injury based on the misappropriation of 

intellectual property), and the issue was whether uncertainty as to the extent of the 

damages associated with that single injury delayed the running of the statute of 

limitations. Thus, we did not consider in Davies whether “the infliction of 

appreciable and actual harm” of one type (for example, economic injury) would 

“commence the statutory period” with respect to harm of a completely different 

type (for example, physical injury). (Id. at p. 514.) Nor did we consider whether 

“the infliction of appreciable and actual harm” in the form of a specific disease 

(such as COPD here) would “commence the statutory period” with respect to a 

separate and distinct disease (as the lung cancer here is alleged to be). (Ibid.) 

Therefore, Davies does not govern this case. We have never stated what 

commences the running of the statutory period in a case like this one, in which a 

later-discovered physical injury is alleged to be separate from an earlierdiscovered physical injury. Our decision in Grisham, supra, 40 Cal.4th 623, 

emphasized the limits of our holding in Davies, supra, 14 Cal.3d 502.

As relevant here, the plaintiff in Grisham, supra, 40 Cal.4th 623, sued 

cigarette manufacturers for smoking-related injuries. She contended that the 

cigarette manufacturers had wrongfully induced her addiction to tobacco, and she 

alleged claims for economic injury (the cost of purchasing cigarettes) and personal 

injury (emphysema and periodontal disease). (Id. at pp. 629-631.) We concluded in 

Grisham that the economic injury claim was barred by the applicable statute of 
13

limitations because the plaintiff knew or should have known about her injury long 

before she filed suit. (Id. at pp. 638-639.) That conclusion raised the question 

whether the personal injury claims were also barred, on the theory that the plaintiff 

had suffered only one indivisible harm and that the physical injuries were simply 

another category of damages related to that single harm. In addressing this question 

in Grisham, we did not decide whether the two injuries (economic and physical) 

implicated two separate primary rights. (Id. at pp. 643, 646.) Instead, we focused 

exclusively on the statute of limitations, and we held that appreciable harm in the 

form of an economic injury does not begin the running of the statute of limitations 

on a suit to recover damages for a physical injury. (Id. at pp. 643-646.) Grisham

interpreted the “appreciable and actual harm” rule of Davies, supra, 14 Cal.3d at 

page 514, to be limited to cases involving a single type of injury, and we found no 

case applying that rule to a later-discovered injury of a different type. (Grisham, at 

p. 644.)6

 

6 As mentioned, the court in Grisham, supra, 40 Cal.4th 623, concluded the 

plaintiff‟s later manifesting claim for physical injury was timely without also 

determining whether that claim involved the same primary right as the plaintiff‟s 

earlier manifesting claim for economic damage. In so doing, we necessarily, 

albeit implicitly, assumed that, even if the plaintiff‟s various claims involved only 

a single primary right (as the defendants there asserted), we could still apply the 

statute of limitations separately to the plaintiff‟s physical injury claim. (Id. at 

pp. 643, 646.) In other words, we necessarily accepted the possibility that a 

plaintiff can have a single cause of action that accrues (for statute of limitations 

purposes) at different times with respect to different types of harm, thus permitting 

some damage claims to proceed although others are time-barred.

To that extent, Grisham, supra, 40 Cal.4th 623, logically supports the 

recognition of an exception to the rule that “a single tort can be the foundation of 

but one claim for damages.” (Miller v. Lakeside Village Condominium Assn.

(1991) 1 Cal.App.4th 1611, 1622; DeRose, supra, 196 Cal.App.3d 1011, 1024.)

Because the exception is inferred from Grisham‟s holding, it is necessarily limited 

to cases presenting the same legal and factual situation, that is, a statute of 

limitations defense to a claim alleging a latent disease that is separate and distinct 

(footnote continued on next page)
14

In Grisham, supra, 40 Cal.4th 623, we also emphasized the impractical 

consequences of a contrary conclusion, relying on Fox v. Ethicon Endo-Surgery, 

Inc. (2005) 35 Cal.4th 797 (Fox). There, the plaintiff underwent gastric bypass 

surgery. She later sued the surgeon and the hospital for medical malpractice. 

During discovery, she learned that her alleged injury might have been caused by a 

defective stapler manufactured by a nonparty. The plaintiff then amended her 

complaint to add as a defendant the stapler manufacturer, which asserted the 

statute of limitations as a defense. (Id. at pp. 803-805.) We concluded in Fox that 

knowledge of the facts supporting a medical malpractice cause of action against 

one defendant does not necessarily commence the running of the statute of 

limitations with respect to a separate products liability cause of action against a 

different defendant. (Id. at pp. 813-815.)

Grisham, supra, 40 Cal.4th 623, involved a claim against the same

defendants alleging different injuries, whereas Fox, supra, 35 Cal.4th 797, 

involved a claim against different defendants alleging the same injury. 

Nevertheless, we held that the policy underlying our holding in Fox was equally 

applicable in Grisham. In Grisham, we quoted the following language from Fox: 

“ „[I]t would be contrary to public policy to require plaintiffs to file a lawsuit “at a 

time when the evidence available to them failed to indicate a cause of action.” 

 

(footnote continued from previous page)

from, and becomes manifest long after, the initial effects of the plaintiff‟s injury.

(Grisham, supra, 40 Cal.4th at p. 644.) Of course, the need for such an exception 

in any particular case depends on how the relevant primary rights are defined. If 

two primary rights (and hence two causes of action) are alleged, those two causes 

of action can accrue independently for purposes of applying the statute of 

limitations without the need for an exception to the rule that a single tort supports 

only a single claim. (See Code Civ. Proc., § 312.)
15

[Citations.] Were plaintiffs required to file all causes of action when one cause of 

action accrued, . . . they would run the risk of sanctions for filing a cause of action 

without any factual support. [Citations.] Indeed, it would be difficult to describe 

a cause of action filed by a plaintiff, before that plaintiff reasonably suspects that 

the cause of action is a meritorious one, as anything but frivolous. At best, the 

plaintiff‟s cause of action would be subject to demurrer for failure to specify 

supporting facts [citation].‟ ” (Grisham, supra, 40 Cal.4th at pp. 644-645, quoting 

Fox, supra, 35 Cal.4th at p. 815.)

Applying that language from Fox, supra, 35 Cal.4th at page 815, to the 

facts in Grisham, supra, 40 Cal.4th 623, we rejected a rule that “would compel 

cigarette smokers either to file groundless tort causes of action based on physical 

injury against tobacco companies as soon as they discovered they were addicted to 

cigarettes and had an unfair competition cause of action . . . , or risk losing their 

right to sue in tort for such physical injury.” (Id. at p. 645.) Such a requirement, 

Grisham said, “would violate the essence of the discovery rule that a plaintiff need 

not file a cause of action before he or she „ “has reason at least to suspect a factual 

basis for its elements.” [Citations.]‟ [Citation.]” (Ibid.) Furthermore, 

“[i]t would directly contravene „the interest of the courts and of litigants against 

the filing of potentially meritless claims.‟ [Citation.]” (Ibid.)

In Grisham, supra, 40 Cal.4th 623, we expressly stopped short of deciding 

the issue presented here, in which a single wrong gives rise to two injuries of the 

same general type (physical injuries), but the two injuries become manifest at 

different times and are alleged to be separate and distinct. (Id. at p. 646.) 

Nevertheless, we see no reason not to apply to this case the logic of Grisham. In 

both cases, the injuries arose at different times and were separate from one 

another. In Grisham, the injuries were separate from one another in that one was 
16

economic and the other was physical; here, the Ninth Circuit has asked us to 

assume that the injuries are three separate diseases. (See pp. 3-4, ante.)

It is critical to consider the posture in which this matter comes to us. To 

defeat summary judgment in the federal district court, plaintiff needed to identify 

an issue of fact that, if decided in her favor, would allow her to overcome 

defendants‟ statute of limitations defense. (See generally Anderson v. Liberty 

Lobby, Inc. (1986) 477 U.S. 242, 248; Celotex Corp. v. Catrett (1986) 477 U.S. 

317, 322.) The issue of fact that plaintiff identified in the federal district court was 

that her lung cancer is a disease that is separate from her earlier-discovered COPD 

and periodontal disease. For example, plaintiff stated “that COPD is a separate 

illness, which does not pre-dispose or lead to lung cancer and that it has nothing 

medically, biologically, or pathologically to do with lung cancer.” It is not our 

role to decide or even question the factual validity of that assertion. Rather, our 

role is to determine, as a legal matter, whether plaintiff‟s assertion has any 

relevance under California law for purposes of applying the statute of limitations, 

for that is the question that the Ninth Circuit asked us to decide. In other words, 

the Ninth Circuit has asked us to assume plaintiff‟s assertion to be true and to 

decide, as a matter of California law, whether two physical injuries that constitute 

separate diseases and that become manifest at different times can be considered 

“qualitatively different” (Grisham, supra, 40 Cal.4th at p. 645) for purposes of

applying the statute of limitations. The answer is “yes.”

As already discussed (see pp. 14-15, ante), we emphasized in Grisham that 

it made little sense to require a plaintiff whose only known injury is economic to 

sue for personal injury damages based on the speculative possibility that a then 

latent physical injury might later become apparent. (Grisham, supra, 40 Cal.4th at 

pp. 644-645.) Likewise, here, no good reason appears to require plaintiff, who 

years ago suffered a smoking-related disease that is not lung cancer, to sue at that 
17

time for lung cancer damages based on the speculative possibility that lung cancer 

might later arise. Nothing we said in Davies, supra, 14 Cal.3d 502, requires such 

a rule, and defendants here have cited no case that supports such a rule. Moreover, 

although we reaffirm the application of the “appreciable and actual harm” rule (id.

at p. 514) to cases that do not involve latent diseases, application of that rule to bar 

plaintiff‟s lung cancer claim before her lung cancer had become manifest would 

violate the policy underlying the discovery rule, which, as we noted earlier, is to 

prevent “the limitations period . . . [from] expir[ing] before a plaintiff has or 

should have learned of the latent injury and its cause.” (Buttram v. OwensCorning Fiberglas Corp., supra, 16 Cal.4th at p. 531.)

It is true that here plaintiff‟s COPD involved the same part of the body (the 

lungs) as her lung cancer. Nevertheless, as we noted earlier, the Ninth Circuit has 

asked that in deciding the statute of limitations issue we accept as true plaintiff‟s 

factual assertion “that COPD is a separate illness, which does not pre-dispose or 

lead to lung cancer and that it has nothing medically, biologically, or 

pathologically to do with lung cancer.” (See p. 16, ante.) Assuming that assertion 

to be true, it does not matter that both diseases affect the lungs. The significant 

point is that the later-occurring disease (lung cancer) is, according to plaintiff‟s 

offer of proof, a disease that is separate and distinct from the earlier-occurring 

disease (COPD). Therefore, under the logic of our decision in Grisham, supra, 40 

Cal.4th 623, the statute of limitations bar can apply to one disease without 

applying to the other.
18

IV

In response to the Ninth Circuit‟s inquiry, we conclude that when a laterdiscovered latent disease is separate and distinct from an earlier-discovered 

disease, the earlier disease does not trigger the statute of limitations for a lawsuit 

based on the later disease.

KENNARD, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

SUZUKAWA, J.*

 

* Associate Justice, Court of Appeal, Second Appellate District, Division 

Four, assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Pooshs v. Philip Morris USA, Inc.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding XXX on certification pursuant to rule 8.548, Cal, Rules of Court

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S172023

Date Filed: May 5, 2011

__________________________________________________________________________________

Court:

County:

Judge:

__________________________________________________________________________________

Counsel:

Brayton ♦ Purcell, Alan R. Brayton, Gilbert L. Purcell and Lloyd F. LeRoy for Plaintiff and Appellant. 

Law Office of Holly L. Hostrop and Holly L. Hostrop for Tobacco Trial Lawyers Association as Amicus 

Curiae on behalf of Plaintiff and Appellant.

Jones Day, Peter N. Larson, Stephen J. Kaczynski and Ashlie E. Case for Defendants and Respondents R.J. 

Reynolds Tobacco Co. and Brown & Williamson Holdings, Inc.

Munger, Tolles & Olson, Daniel P. Collins and David S. Han for Defendant and Respondent Philip Morris 

USA Inc.

Shook, Hardy & Bacon and Kevin Underhill for Defendant and Respondent Lorillard Tobacco Co.

Krieg, Keller, Sloan, Reilley & Roman, Stan G. Roman and Tracy M. Clements for Defendant and 

Respondent Hill & Knowlton, Inc.

Daniel J. Popeo, Richard A. Samp; Bergeson and Mark E. Foster for Washington Legal Foundation as 

Amicus Curiae on behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Gilbert L. Purcell

Brayton ♦ Purcell

222 Rush Landing Road

Novato, CA 94948

(415) 898-1555

Daniel P. Collins

Munger, Tolles & Olson

355 South Grand Avenue, 35th Floor

Los Angeles, CA 90071-1560

(213) 683-9100