On May 5, 2011, the California Supreme Court ended big tobacco’s campaign to deny Californians injured by cigarettes access to justice. In the case of Nikki Pooshs, big tobacco had successfully argued in the lower court that a lung cancer victim could not sue them because the victim’s time to do so had expired decades before when the victim experienced a lesser tobacco injury. The case was brought on appeal before the Federal Ninth Circuit Court of Appeals to challenge the lower court's ruling. (Pooshs v. Phillip Morris USA, Inc. (9th Cir. 2009) 561 F.3d 964)

The Ninth Ciruit Court, in order to clarify the issue, asked Certified Questions of the California Supreme Court, which the Court combined into one:
“When multiple distinct personal injuries allegedly arise from smoking cigarettes tobacco, does the earliest injury trigger the statute of limitations for all claims, including those based on a later injury?”

In answering the question, the California Supreme Court stated:
"In response to the Ninth Circuit’s inquiry, we conclude that when a later-discovered 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."

This is a distinct victory for Nikki Pooshs and an important decision clarifying the law in California concerning latent and distinct diseases in tobacco. If the Court had ruled the other way, as tobacco wanted, it would have basically eviscerated the rights of cancer victims—whose cancer was directly caused by tobacco use—for redress for latent injuries. It often takes years for lung cancer from tobacco use to appear and may be preceded by lesser injuries that would not predispose a person to developing cancer down the road.

Senior trial partner of Brayton Purcell, Gilbert Purcell stated: “Nikki Pooshs’ fight to survive so that this issue could once and for all be determined for all individual smokers in California shows her resolve. All Californians victimized by the tobacco industry owe her a huge debt of gratitude.”
An Uphill Battle Against Big Tobacco to Win Her Day in Court Twenty years ago Nikki Pooshs developed periodontal disease and COPD related to smoking cigarettes. At the time, she decided to live with both of these conditions rather than pursue a remedy in the courts. According to Phillip Morris, when she later developed lung cancer and timely sued for this far more serious—and potentially fatal—disease she is out of luck.

Big tobacco’s position was absurd under existing California law. Their position would require that you file a suit for cancer as soon as you are diagnosed with a less serious disease caused by use of the tobacco company’s products. In essence, your cancer would be entirely speculative, particularly if the first diseases you are diagnosed with would not predispose you to develop cancer at a later date. A lung cancer case where the cancer is not present and there is no clear indication of the potential threat for lung cancer to develop is in reality no case at all.

Under Phillip Morris’ interpretation of California’s “single injury rule,” you could never be compensated for cancer once you were diagnosed with a lesser disease years before the cancer presented itself. As we pointed out in the conclusion to our brief, “To hold otherwise would produce the Kafkaesque result that healthy plaintiffs would be required to file speculative lawsuits for cancer and other injuries that they did not have, and probably will not get, while terminally ill and suffering plaintiffs would be barred from reasonable compensation on the ground they sued too late.”

With advent of the California Supreme Court decision, Mr. Purcell stated, “Now tobacco must defend its products in California on the merits instead of tortured statute of limitations arguments never intended by California lawmakers. Like the Engle progeny cases being courageously tried throughout Florida, we look forward to California juries getting to hear the sordid story that is big tobacco.”

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