California Supreme Court Gives
Green Light to Tobacco Cases

 Unanimous opinion knocks out Ninth Circuit decision that
time-barred all cigarette-caused disease litigation in the Golden State

 

 BACKGROUND
 

Tobacco companies benefited from a decade of legal immunity from claims by injured cigarette smokers from 1988-1998.  After the legislature corrected this situation, the first four trials against tobacco companies brought by injured smokers resulted in findings of industry liability and punitive damages.  These were:

 

• February 1999: Henley v. Philip Morris - $51.5 million

• March 2000:  Whiteley v. R.J. Reynolds and Philip Morris - $21.75 million

• June 2001:  Boeken v. Philip Morris - $3.05 billion

• October 2002:   Bullock v. Philip Morris - $28 billion

 

Although the amount of punitive damages was subsequently reduced and the second of these cases, Whiteley, is being retried right now in San Francisco after being overturned on a technicality, it was clear that well-informed California juries were to be deeply feared by the tobacco industry.

 

In 2000, an injured smoker and correspondence law school student named Mark Soliman sued on his own behalf and represented himself on appeal before the U.S. Court of Appeals for the Ninth Circuit.  The appeal interrupted the encouraging start of California tobacco litigation  (Soliman v. Philip Morris Inc., 311 F.3d 966, (2002).  The resulting decision meant that sick smokers could not sue for their injuries because the statute of limitations began to run at the time the smoker realized or should have realized that he was addicted. Because most cigarette-caused diseases manifest themselves decades after the victim is addicted to the nicotine in the product, virtually all pending cases were be time-barred and attorneys could no longer represent cancer-stricken customers of Big Tobacco.

 

The California Supreme Court accepted a transfer of 2 cases pending before the appeals court that ruled in Soliman, Grisham v. Philip Morris and Cannata v. Philip Morris. While the Court's rulings in regard to the two plaintiffs, Ms. Grisham and Ms. Cannata, are mixed, the importance of today's unanimous opinion and the reason the case was taken up by the state's highest court, is to dismiss the peculiar notion that the addiction that usually occurs within weeks of smoking initiation marks the start of the 2 year statute of limitations for filing a personal injury claim.

 

Justice Moreno writes:

We reject the proposition advanced by defendants, based on Soliman v. Philip Morris, Inc. (9th Cir. 2002) 311 F.3d 966 (Soliman), that the statute of limitations should have commenced on the physical injury claims as soon as Grisham discovered or should have discovered she was addicted to cigarettes.

COMMENTARY

Richard Daynard, Professor of Law at Northeastern University in Boston, noted that, "the California Supreme Court just changed the light from red to green and a high volume of tobacco litigation traffic is about to roar into California Courtrooms."

 

Mark Gottlieb, Director of the Tobacco Products Liability Project at Northeastern University School of Law, stated that, "contrary to many analysts proclamations, the time is ripe for a major resurgence in individual cigarette cases.  State supreme court rulings in Massachusetts, Florida, and now California have transformed the litigation landscape.  Coupled with a federal court's finding last summer that the tobacco industry has violated federal racketeering laws and disclosures that the industry has increased nicotine levels in the years after settling litigation with the states, it is becoming clear that the industry is going to have to devote even more substantial resources fighting these cases and, eventually, paying out awards until they stop selling an unreasonably dangerous and addictive product."