California Supreme Court Ends Big Tobacco’s Campaign to Deny Smokers Justice

Supreme Court Decision Forces Tobacco Companies to Defend Smokers’ Cases on Merits

On May 5, 2011, the California Supreme Court ended big tobacco’s campaign to deny Californians injured by tobacco 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.

The Ninth Circuit 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 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 LLP, 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.”

With advent of the California Supreme Court decision, according to Mr. Purcell, “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 hear the sordid story that is big tobacco.”