Opinion
CV 03-4717 SVW (CWx)
November 4, 2003
ORDER GRANTING JUDGMENT ON THE PLEADINGS
I. INTRODUCTION
This tobacco-related products liability action was filed in California state court, alleging a host of state law causes of action. Defendants removed to this Court based on diversity of citizenship, pursuant to 28 U.S.C. § 1332 (a)(1) and 1441(a).
On September 8, 2003, the Court denied Plaintiff's Motion to Remand, concluding that in-state Defendants Stater Bros, Markets and Safeway Stores, Inc. were fraudulently joined.
Now before the Court is a Motion by the Defendants, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown Williamson Tobacco Corporation, and the American Tobacco Company, in addition to Stater Bros, and Safeway, for Judgment on the Pleadings as to All Claims.See Fed.R.Civ.P. 12(c).
For the reasons set forth below, Defendants' Motion for Judgment on the Pleadings is GRANTED.
II. FACTUAL/PROCEDURAL BACKGROUND
The essence of Plaintiff Janis Simpson's suit is that the Defendants misled Plaintiff as to the ill effects of smoking, that Plaintiff thereby began smoking and became addicted to Defendants' cigarettes, that Plaintiff smoked for over three decades, and that Plaintiff was recently diagnosed with lung cancer as a result of her smoking.
Plaintiff asserts numerous common-law product liability claims, as well as statutory claims for unfair business practices and false and misleading advertising.
III. DISCUSSION
A. Legal Standard
"A judgment on the pleadings is properly granted when, taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law." Flowers v. First Hawaiian Bank. 295 F.3d 966, 969 (9th Cir. 2002). The Court assumes the truthfulness of facts alleged in the complaint, and draws all inferences in favor of the responding party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 239 (9th Cir. 1989).
B. Statute of Limitations
Defendants argue that Plaintiff's claims are time-barred. The statutes of limitations for the various causes of action asserted in this case are one, three, and four years. See Cal. Civ. Proc. Code. § 340(3) (one year, product liability claims); Cal. Bus. Prof. Code § 17208 (four years, governing the unfair business practices claims); Cal. Civ. Proc. Code § 338(a) (three years, probably governing the advertising claims). Much of this case is governed by Soliman v. Philip Morris. Inc., 311 F.3d 966 (9th Cir. 2002), which affirmed the dismissal of a similar suit. Indeed, the facts are virtually identical. Soliman alleged that he smoked cigarettes since the late 1960s, when he was fourteen. Id. at 969. Simpson alleges she began to smoke at age fourteen, in the 1960s. (Compl. ¶¶ 71, 73.) Soliman attempted to quit smoking fifty times, but never succeeded. Soliman. 311 F.3d at 970. Simpson continued to smoke up until the time of her lung cancer diagnosis on December 24, 2001. (Compl. ¶¶ 71.) Soliman alleged that cigarettes caused his addiction and other health problems, including respiratory disorders such as dyspnea and orthopnea. Soliman, 311 F.3d at 970. Simpson alleges that cigarettes caused her addiction and lung cancer. (Compl. ¶ 71, 74.)
Soliman alleged, and Simpson alleges, that smoking, addiction, and consequent smoking-related infirmities resulted from concerted efforts on the part of the tobacco industry to conceal the health effects and addictive nature of smoking. Soliman, 311 F.3d at 970. (See, e.g., Compl. ¶¶ 31, 126-29, 137, 164.) Soliman sued for his addiction and other smoking-related injuries on a number of California common law theories, including product liability, negligence, breach of warranty, fraud, misrepresentation and conspiracy. Soliman, 311 F.3d at 970. So does Simpson, though Simpson adds statutory claims relating to unlawful business practices and false or misleading advertising, and, as discussed below, Simpson does not expressly sue on the basis of her addiction. (Compl. ¶ 140-91.)
The dispositive question considered by the court in Soliman was whether plaintiff's claims were timely. California product liability claims are subject to a one-year statute of limitations. Cal. Civ. Proc. Code § 340(3). "This provision bars untimely personal injury-claims based on defective products regardless of the particular legal theory invoked."Soliman, 311 F.3d at 971 (citing Nodine v. Shiley Inc., 240 F.3d 1149, 1153 n. 2 (9th Cir. 2002); Clark v. Baxter Healthcare Corp., 83 Cal.App.4th 1048, 1054 n. 2, 100 Cal.Rptr.2d 223 (2000)).
"The statute of limitations normally begins to run when the claim accrues, that is, "when the cause of action is complete with all of its elements.'" Soliman, 311 F.3d at 971 (quoting Norgart v. Upjohn Co., 21 Cal.4th 383, 397, 87 Cal.Rptr.2d 453 (1999)). Thus, the primary issue before the Soliman court related to when the claims accrued. Under California law, a plaintiff "need not be aware of the specific `facts' necessary to establish the claim." Jolly v. Eli Lilly Co., 44 Cal.3d 1103, 1111, 245 Cal.Rptr. 658 (1988). Rather, the claim accrues "when, simply put, [the plaintiff] at least `suspects . . .
that someone has done something wrong' to him." Norgart, 21 Cal.4th at 397 (quoting Jolly, 44 Cal.3d at 1110).
The Ninth Circuit held that the relevant date was not when Soliman knew of a particular smoking-related injury, "but when he should have known ofany significant injury from defendants' wrongful conduct." Soliman, 311 F.3d at 972. "Although a right to recover nominal damages will not trigger the running of the period of limitation, the infliction of appreciable and actual harm, however uncertain in amount, will commence the statutory period." Davies v. Krasna, 14 Cal.3d 502, 514, 121 Cal.Rptr. 705 (1975). Thus, the injury that Soliman "should have known about first is the one that starts the statute of limitations."Soliman, 311 F.3d at 972. Soliman alleged addiction as one of his distinct injuries. Soliman, 311 F.3d at 972. As a result, the statute of limitations began to run when Soliman had knowledge of his addiction, Soliman, 311 F.3d at 973. Soliman alleged that he did not have knowledge of his addiction until after he was diagnosed with dyspnea and orthopnea in January 2000 — within the limitations period. Id. at 972.
The Ninth Circuit began with the premise that actual or constructive knowledge of a significant injury commences the limitations period. Id. at 973. The court engaged in a thorough analysis regarding the well-known risks of smoking, including addiction, and concluded that a reasonable person in Soliman's position would have at least suspected he was addicted long before the action was filed. Id. at 969, 973-75. "[N]icotine's addictiveness is a matter of public record, and addiction is a predictable consequence of using an addictive product." Id. at 975.
It is not as clear that Simpson alleges addiction as a distinct injury. Soliman does not specifically allege that addiction is a compensable injury. However, like in Soliman, the "thread running through [Simpson's] complaint is that cigarettes cause addiction and other health problems, and defendants must pay for inflicting these ailments upon [her]." 311 F.3d at 970. (See Compl. ¶ 27 ("[Defendants' conspiracy] resulted in Plaintiff being unaware the extent to which smoking was a hazard to Plaintiff's health, that the nicotine therein would addict him [sic] to smoking, or that CIGARETTE DEFENDANTS manipulated nicotine levels and targeted youth, including Plaintiff, so as to hook youth before majority and then assert adult "free choice" as a defense once so hooked. This conspiracy proximately and legally caused the injuries he has sustained and the damages plaintiffs [sic] claim herein. As a result, Plaintiff has now developed, and will die in the future from, cancer caused by Plaintiff's addiction to smoking.")) In addition, Simpson prays specifically for disgorgement of profits gained by Defendants from "the continuing and ongoing sale of cigarettes to plaintiff as an addicted adult, whom defendants illegally and unfairly addicted to cigarettes as a minor, and who continued to purchase them as an adult because of [her] addiction." (Compl. Prayer ¶ 8; see also Compl. ¶¶ 154-62 (alleging Defendants' unjust enrichment from selling cigarettes to Simpson and other unfairly addicted adults).) Simpson also laments the money she spent on cigarettes as a result of her addiction. "As a proximate result of CIGARETTE DEFENDANTS' intentional misrepresentations as heretofore described, Plaintiff was initially induced as a minor and then forced by Plaintiff's ongoing addiction as an unfairly addicted adult, to spend a total sum currently unknown to Plaintiff on cigarettes." (Compl. ¶ 188.) In short, much of the complaint revolves around the allegation that, as is stated close to the very beginning, "[Defendants] have intentionally conspired to mislead, deceive and confuse the government, and the public, including plaintiff, concerning the harmful and debilitating effects smoking has on the health of individuals, that nicotine in cigarettes is a powerfully addictive substance, and that they intentionally manipulated levels of nicotine delivery in cigarettes to ensure that smokers remain addicted and continue to buy their products." (Compl. ¶ 5.)
Nonetheless, Simpson's not pleading addiction as a distinct injury may affect application of Soliman — insofar as it relates to the statute of limitations — to this case. In Soliman, the Ninth Circuit noted that addiction "might conceivably be a cognizable theory of recovery under California law." 311 F.3d at 972 (emphasis added). The inescapable inference is that addiction might not be a cognizable theory of recovery. The Soliman court declined to decide that issue because "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 973. But where, as here, there is no claim that addiction is an appreciable injury, the same argument cannot necessarily be made.
In the handful of federal district court cases to follow Soliman, the plaintiffs alleged addiction as a distinct injury. For instance, inGrisham v. Philip Morris, a case decided by this Court, "Grisham allege[d] three separate, distinct and appreciable injuries: periodontal disease, COPD, and addiction . . . " No. CV-02-7930, slip op. at 5 (C.D. Cal. April 1, 2003). See also Baker v. Philip Morris, No. CV-98-1684, slip op. at 6 (S.D. Cal. May 29, 2003) ("Plaintiff, moreover, alleges that he has suffered the distinct injury of addiction in each of his three causes of action."); cf. Lee v. Philip Morris, No. CV-02-05270, slip op. at 5 (Aug. 4, 2003) (finding that the statute of limitations was triggered when the plaintiff became aware of his emphysema, and that his subsequent diagnosis with lung cancer did not begin a new limitations period).
Bearing these cases in mind, it is helpful to return to the general rule stated in Soliman, that the statute of limitations runs from the time "when [the plaintiff] should have known of any significant injury from defendants' wrongful conduct." Soliman, 311 F.3d at 972. Nominal damages will not start the running of the clock, but any actual, appreciable harm, no matter how small, will trigger the statute of limitations. Davies v. Krasna, 14 Cal.3d 502, 514, 121 Cal.Rptr. 705 (1975). The question, therefore, is whether addiction was a significant injury to Simpson.
Under the Ninth Circuit's Soliman analysis, the question is not merely whether addiction would be a significant injury in some abstract sense. Rather, the determination is necessarily informed by how the plaintiff has pled addiction. Soliman was essentially judicially estopped from claiming that addiction was not a significant injury because he had pled it as such. Soliman, 311 F.3d at 973. Here, though Simpson does not plead addiction as a distinct injury, her complaint announces at every turn how Defendants got her addicted to smoking. (See, e.g., Compl. ¶ 5 ("Had plaintiff known the true facts concerning the magnitude of the health risks of smoking, the addictive nature of nicotine, the intentional manipulation of nicotine levels in cigarettes by CIGARETTE DEFENDANTS . . ., plaintiff would never have started smoking. By the time plaintiff was aware that there were indeed deadly health risks associated with smoking, plaintiff was addicted, which addiction was intentionally maintained by the purposeful actions of CIGARETTE DEFENDANTS.")) In light of these assertions, Simpson is estopped from now arguing that addiction caused her no appreciable harm even though she has not alleged addiction as an injury in precisely the same way as Soliman did.
Alternatively, as noted above, the Soliman court acknowledged that addiction may be a theory of recovery under California law. 311 F.3d at 972. "Tobacco addiction entails physical loss of control and — as any California restaurant-goer can attest — social ostracism. Some putative class actions have been premised entirely on the theory that addiction itself is an injury."Id., citing Castano v. Am. Tobacco Co., 84 F.3d 734, 747 n. 24 (5th Cir. 1996). In Castano, the plaintiffs were "seeking compensation solely for the injury of nicotine addiction. The gravamen of their complaint is the novel and wholly untested theory that the defendants fraudulently failed to inform consumers that nicotine is addictive and manipulated the level of nicotine in cigarettes to sustain their addictive nature." 84 F.3d at 737. They sought to certify a nationwide class of all nicotine-addicted persons and their estates, representatives, administrators, spouses, children, and relatives. Id. Similarly, in Chamberlain v. American Tobacco Co. Inc., the plaintiffs filed a case against tobacco companies and retailers "on behalf of themselves and a purported class of other Ohio residents who are either addicted, or are in danger of becoming addicted, to cigarettes." 70 F. Supp.2d 788, 791 (N.D. Ohio 1999). In that case, the plaintiffs alleged eleven causes of action regarding the defendants' knowledge of nicotine's addictiveness and manipulation of nicotine levels. Id. But neither the Castano court nor the Chamberlain court decided whether addiction was, indeed, a cognizable injury. In Small v. Lorillard Tobacco Co., Inc., the implied that addiction would be a cognizable injury, but, once again, did not decide that issue. See 252 A.D.2d 1, 7, 679 N.Y.S.2d 593, 599 (N.Y.App. 1998) ("If plaintiffs do not prove addiction, they cannot show that they were harmed by defendants' deceptive exploitation of the addictive properties of nicotine to maintain their customer base.")
The Alabama Supreme Court, on the other hand, recently decided this very question. Spain v. Brown Williamson Tobacco Corp., _ So.2d _, 2003 WL 21489727 (Ala.). In Spain, the court answered certified questions from the Eleventh Circuit in a wrongful death action against tobacco companies for the deceased's death as a result of lung cancer. Id. at *1-2. One of the questions posed was "When does the Alabama statute of limitations for claims brought under the AEMLD [Alabama Extended Manufacturer's Liability Doctrine], and claims premised on negligence, wantonness, breach of warranty and conspiracy begin to run in a smoking products liability case?" Id. at *1. In answering this question, the court considered whether addiction to cigarettes is a compensable tort. Id. at 10. First, the court discussed five cases the cigarette manufacturers cited in support of their contention that addiction is not a compensable injury. Id. The court rejected all of these cases for that proposition, noting that four out of five cases did not reach this question and that the fifth case was an unpublished opinion of an Illinois trial court, and therefore was unpersuasive. Id. The court went on to find that nicotine addiction is a compensable injury and that it will start the running of the statute of limitations regardless of whether the plaintiff pleads it as a compensable injury:
Castano; Mitchell v. Brown Williamson Tobacco Corp., 294 F.3d 1309 (11th Cir. 2002) (the cigarette manufacturers had cited the unpublished district court decision in this case); Emig v. American Tobacco Co., 184 F.R.D. 379 (D. Kan.) 1998); and Lyons v. American Tobacco Co., No. Civ. A 96-0881-BH-S (S.D. Ala. Sept. 30 1997).
Addiction to nicotine is a compensable injury, at a minimum, in terms of the costs of supporting an addiction. Assuming no other physical injury has previously manifested itself, the economic loss attributable to supporting an addiction is the first injury a smoker addicted to cigarettes sustains, regardless of whether a plaintiff frames the complaint to seek damages for that economic loss. That other damages might follow, including, but not limited to, injury to the person, such as shortness of breath, loss of the sense of taste and/or smell, coughing, and throat irritation, as well as medical expenses, should not defeat the commencement of the running of the applicable statutory limitations period. Artful pleading such as is presented here, where Spain disavows seeking a recovery for all pre-cancer injuries, should not defeat the operation of the first-injury rule,Id. at *11 (emphasis added). As a result, the Alabama Supreme Court held that "the statutory limitations period begins to run at the moment a smoker recognizes that he or she has become addicted." Id. at *12. This Court finds this line of reasoning persuasive and is unswayed by Plaintiff's protestations that any injury resulting from addiction is merely nominal.
A final alternative basis for finding that the statute of limitations must run from the time when Simpson knew or should have known of her addiction is that artful pleading will not prevent the running of the statute of limitations. The Spain court espoused this view, finding that "[a]rtful pleading such as is presented here, where Spain disavows seeking a recovery for all pre-cancer injuries, should not defeat the operation of the first-injury rule." 2003 WL 21489727, *11. Courts including the Ninth Circuit have reached the same conclusion in a variety of cases. See, e.g., Venegas v. Wagner, 704 F.2d 1144, 1146 n. 1 (9th Cir. 1983) ("The statute of limitations cannot be avoided merely by artful pleading."); Stumpf v. Albracht, 982 F.2d 275 (8th Cir. 1992) ("If parties were permitted to circumvent the statute of limitations via artful pleading, the statute of limitations would serve no purpose."); Torres v. McLaughlin, 1996 WL 680274, *3 (E.D. Pa. 1996) ("artful pleading will not avoid statute of limitations difficulties"); Medtronic. Inc. v. Shope, 135 F. Supp.2d 988, 991 n. 3 (D. Minn. 2001) ("Defendant may not, by artful pleading, escape the reach of the statute of limitations."). Simpson's Complaint alleges that the Defendants unfairly addicted her to cigarettes and wrongly profited from that addiction and that she has been harmed as a result of the addiction. Like in Spain, Simpson's artful pleading will not stop the statute of limitations from accruing.
The Court finds that addiction caused Simpson actual and appreciable harm — or at the very least Simpson has alleged that addiction caused her such harm — and, as a result, that the statute of limitations began to run from the time at which Simpson knew or should have known of her addiction to smoking cigarettes. This conclusion is supported by each of the three alternative lines of reasoning detailed above: first, even though Simpson does not specifically plead addiction as a compensable injury, her Complaint relies on allegations of Defendants' unfairly addicting her to smoking to such an extent that she is estopped from saying that addiction caused her no appreciable harm; second, although the California Supreme Court has not decided the issue, addiction would seem to be a cognizable injury under California law; and third, Simpson cannot avoid the statute of limitations through artful pleading.
The next question is when Simpson knew or should have known of her addiction. Not only may Simpson be charged with the same constructive knowledge of addiction with which Soliman was charged, but she also alleges to have become addicted soon after she started smoking, "Starting at age approximately fourteen, plaintiff was smoking several cigarettes per day and quickly became addicted. Plaintiff's childhood addiction to cigarettes kept plaintiff smoking into adulthood." (Compl. ¶ 71.) Though Simpson does not specifically say when she knew of her addiction, it is hard to imagine that she could identify when she became addicted unless she became aware of that addiction around that time. Thus, Simpson, like Soliman, has been aware of her addiction for years, alleges that her addiction constitutes a significant injury, and is thus time-barred under Soliman from bringing her addiction and other smoking-related personal injury claims.
C. Plaintiff's Objections
Plaintiff argues that Soliman does not govern for three reasons: 1) Soliman was a pro se plaintiff; and 2) the Soliman court failed to apply the two-injury rule. First, Plaintiff argues that Soliman is not governing authority because it was brought by a pro se plaintiff. (Pl.'s Opp. at 8.) Plaintiff presents no authority for this contention. Furthermore, there is no indication that this fact affected the Ninth Circuit's ruling in any way.
Second, Plaintiff contends that, even if addiction is a substantial injury that was alleged in this case, Plaintiff's lung cancer claims should nonetheless not be time-barred because of California's supposed two-injury rule. Plaintiff claims that the Soliman court failed to consider the two-injury rule and, as a result, that case cannot stand for the proposition that the two-injury rule does not apply in tobacco cases. (Pl.'s Opp. at 9.) But this issue was necessarily decided bySoliman. Soliman brought claims for both addiction and certain smoking-related illnesses. The Ninth Circuit concluded that because Soliman's addiction claim was time-barred, so were any other claims arising from the same allegedly tortious conduct. Soliman, 311 F.3d at 972. "`If the statute of limitations bars an action based upon harm immediately caused by defendant's wrongdoing, a separate cause of action based on a subsequent harm arising from that wrongdoing' is normally barred." Id. (quotingMiller v. Lakeside Vill. Condo. Ass'n. 1 Cal.App.4th 1611, 1622, 2 Cal.Rptr.2d 796 (1991)). Notwithstanding this conclusion, Simpson argues that this Court should adopt the "two-injury rule" enunciated inMartinez-Ferrer v. Richardson-Merrell, Inc., 105 Cal.App.3d 316, 164 Cal.Rptr. 591 (1980). First, this Court is bound to follow Soliman regardless of the normative merit of its conclusions. Second, the more recent Miller case, upon which Soliman relies, distinguished and criticized Martinez-Ferrer as "disregarding the rule against splitting a cause of action." Miller, 1 Cal.App.4th at 1625. Accordingly, Soliman is dispositive of this argument.
Plaintiff, however, argues that Soliman has been undermined by two subsequent cases in California appellate courts, and therefore should not govern. However, this Court cannot ignore Ninth Circuit precedent solely on the authority of two California appellate court decisions. This Court is bound by Ninth Circuit precedent interpreting state law absent "any subsequent interpretation from the [state's] courts that [its] interpretation was incorrect." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 884 n. 7 (9th Cir. 2000). It does not matter if the Ninth Circuit's decision is incorrect. Brewster v. County of Shasta, 112 F. Supp.2d 1185, 1191 (E.D. Cal. 2000), aff'd, 275 F.3d 803 (9th Cir. 2001), cert. denied sub nom Shasta County v. Brewster, 537 U.S. 814 (2002). "[W]hen a panel is considering a governing question of state law on which a prior panel has ruled, the subsequent panel's obligation to follow that ruling is not alleviated by intervening decisions of intermediate state appellate courts unless such `subsequent state court decisions . . . are clearly contrary to a previous decision of this court.'" F.D.I.C. v. Abraham, 137 F.3d 264, 268-69 (5th Cir. 1998) (citations omitted) (emphasis in original).
In Brewster, the district court noted that two California Court of Appeal cases suggested that a Ninth Circuit case regarding whether county sheriffs act for the state or for the county "may no longer be viable." 112 F. Supp.2d at 1191. Nonetheless, the court, noting that other decisions seemed to support the Ninth Circuit case, determined that "this court will follow [the Ninth Circuit's] holding unless overruled by a court which binds this court." Id. In a footnote, the court expounded this general rule: "While in the absence of other evidence, the opinions of California courts of appeal on questions of California law cannot simply be ignored, a conflicting decision of the Ninth Circuit obligates adherence by this court to the Circuit's decision and rejection of the non-binding California precedent." Id. at 1188 n. 5 (internal citations and quotation marks omitted).
Furthermore, even if this court could ignore Ninth Circuit precedent on the basis of contrary state appellate court authority, the California appellate court cases Simpson cites, Henley v. Philip Morris Inc., 2003 WL 22211589 (Cal.Ct.App.), and Souders v. Philip Morris Inc., 104 Cal.App.4th 15 (2002), did not even decide the issue of when a cause of action accrues in tobacco injury cases. Though it is true that both cases allowed smokers' personal injury claims to go forward even though the plaintiffs had smoked for many years prior to diagnosis with smoking-related ailments, neither case directly addressed the issue of the statute of limitations and how claims of addiction affect its accrual. Nor did either case mention Soliman. Therefore, even if this Court were empowered to follow intermediate state cases rather than the Ninth Circuit, it could not find that these cases had sufficiently undermined Soliman to render it inapplicable. Thus, Soliman is controlling.
Because the statute of limitations determination is dispositive, it is unnecessary to address the parties' other arguments.
IV. CONCLUSION
Therefore, Defendants' Joint Motion for Judgment on the Pleadings as to All Claims [44] is GRANTED.
IT IS SO ORDERED AND ADJUDGED.