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More than 40 years ago, at age 13, Leslie Grisham was already hooked on smoking, convinced doing it would make her part of the cool crowd. Even as subsequent scientific evidence revealed smoking could cause serious health problems, the Los Angeles-area woman claims she was misled by industry ads proclaiming cigarettes safe. Five years ago, however, Grisham’s faith was shattered when she was diagnosed with severe periodontal disease, which doctors said had been caused by toxins in cigarette smoke. She sued Philip Morris USA Inc. and Brown & Williamson Tobacco Corp., accusing them of deceiving her for four decades about the safety of their products. On Wednesday, the California Supreme Court will hear arguments in Grisham’s case to resolve an unsettled point of law in the vast realm of smoking suits. At what point, the court must decide, are longtime smokers who relied on manufacturers’ false safety claims required to file suit � when health problems emerge or much earlier, when smokers realize they’re addicted? Millions of dollars in damages hinge on the court’s decision. If the justices find that the statute of limitations tolls upon awareness of addiction, thousands of already sick smokers could be left with no recourse, while manufacturers’ exposure to damages would be sharply limited. Manufacturers consider addiction a disease in itself, and contend that all smoking-related claims accrue at that point. However, plaintiff lawyers, knowing damages for addiction could be hard to prove, contend there are two statutes of limitations � one at the time of addiction knowledge and another when an actual disease develops.
Based on court documents, it appears Munger, Tolles & Olson partner Daniel Collins will argue that smokers shouldn’t be allowed to wait decades to sue over use of products that the surgeon general declared hazardous in 1966, and addic-tive in 1988.

Kentfield appellate specialist Daniel Smith, who will argue Grisham’s case, said last week that the court’s ruling will be critical for ailing smokers who were lulled by ads into a sense of security only to develop emphysema, lung cancer, periodontal disease and other serious illnesses. Tobacco manufacturers, he said, “misled the public by undermining truthful statements and attacking scientific conclusions as not yet being established. They effectively blunted the truth.” Smith, a solo practitioner, will share the lectern with Santa Monica lawyer Martin Stanley, a solo practitioner who represents Maria Cannata, an emphysema victim who began smoking about the same time as Grisham. Both plaintiffs are seeking damages not only for their medical bills, but also for smoking cessation programs and the cost of all the cigarettes they purchased over the years. Daniel Collins, a partner in Los Angeles’ Munger, Tolles & Olson who is scheduled to present the industry’s position on Wednesday, didn’t return several calls seeking comment. But based on his court documents, it appears he will argue that smokers shouldn’t be allowed to wait decades to sue over use of products that the surgeon general declared hazardous in 1966, and addictive in 1988. “Indeed, Grisham’s complaint makes clear that she had actual knowledge of ‘deadly health risks associated with smoking’ long before her complaint was filed,” Collins wrote, “and that she knew she was ‘addicted’ no later than 1993 � nine years before she filed suit.” Grisham’s and Cannata’s case was referred to the state Supreme Court last year by the Ninth Circuit U.S. Court of Appeals, which noted different federal and California court interpretations about the statute of limitations in tobacco cases. “The two lines of tobacco precedent in federal and state court,” the Ninth Circuit held, “may suggest that California law presumes a general public awareness of the risks of smoking, but that an individual plaintiff, in an appropriate case, can overcome this presumption and receive a jury determination on whether [his or her] reliance on cigarette manufacturers’ misrepresentations are justifiable.” The case had reached the Ninth Circuit after a Los Angeles federal court dismissed Grisham’s and Cannata’s case as being time barred. That decision was based on the Ninth Circuit’s 2002 ruling in Soliman v. Philip Morris Inc., 311 F.3d 966, which held that the statute of limitations “began to run not when [the plaintiff] was first diagnosed with injuries stemming from his tobacco use, but ‘when he should have known of any significant injury from [the companies'] wrongful conduct.’” The court said that included when smokers realized they were addicted. Since then, however, two state appellate court cases � 2004′s Whiteley v. Philip Morris Inc., 117 Cal.App.4th 635, and 2005′s Boeken v. Philip Morris Inc., 127 Cal.App.4th 1640 � have held that a manufacturer’s fraudulent statements might be more important than a smoker’s awareness of addiction. A common-knowledge defense to fraud claims, the rulings held, raises a question of fact for a jury to decide. “Our holdings in Soliman bind us,” the Ninth Circuit said in Grisham’s case, “but at the same time we do not wish to ignore the intervening decisions of California’s intermediate appellate courts.” The Ninth Circuit judges stated that they would dismiss Grisham’s and Cannata’s claims if the California Supreme Court decides the two women “cannot overcome the presumed awareness that smoking causes addiction and other health problems.” In his court documents for Grisham, Smith argued that California law doesn’t presume a smoker’s awareness of addiction, nor does it deem addiction a trigger for the statute of limitations. “It is illogical to absolve the industry from liability simply because addiction arose years before serious disabling injuries occurred or were diagnosed,” he wrote. In his answer brief for the manufacturers, Collins insists that it would be ridiculous to let career smokers � aware of tobacco’s dangers through accounts in the media, reports by the surgeon general and massive public health campaigns � claim ignorance about the risks of smoking. “In light of the overwhelming common knowledge of the dangers and addictiveness of smoking since at least 1988 (and well before),” he wrote, “consumers are presumed to be aware of those risks for statute-of-limitations purposes.” The case, which will be heard in Los Angeles, is Grisham v. Philip Morris U.S.A. Inc., S132772.

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