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The California Supreme Court agreed Wednesday to decide whether sick and dying smokers — relying on industry claims that smoking was safe — are barred from suing tobacco manufacturers if they wait until a health problem is diagnosed. The justices took the case 5-0, with Justice Kathryn Mickle Werdegar absent, at the request of the 9th U.S. Circuit Court of Appeals, which had noticed that current federal case law on the statute of limitations in tobacco cases appears to differ from recent rulings by California’s appellate courts. “The two lines of tobacco precedent in federal and state court,” the 9th Circuit wrote on March 29, “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.” Maria Cannata and Leslie Grisham, smokers since they were minors in the 1960s, sued Philip Morris USA and Brown & Williamson Tobacco Corp. after each developed serious health problems, including irreversible emphysema. A Los Angeles federal court dismissed their claims after ruling that both were time-barred by the California statute of limitations. The decision was based on the 9th Circuit’s 2002 ruling in Soliman v. Philip Morris, 311 F.3d 966, which held that California law presumes plaintiffs’ awareness that smoking causes addiction and other health problems, thereby nullifying any claims that the smokers justifiably relied on industry claims of safety. In that case, the 9th Circuit declared 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.’” That includes, the court held, when smokers realize they are addicted. Since then, however, two appeal court rulings in California have indicated that a common-knowledge defense to fraud claims is a question of fact for a jury to decide. Both rulings cast doubt on the holding in Soliman that awareness of addiction commences the statute of limitations. “Our holdings in Soliman bind us,” the 9th Circuit said, “but at the same time we do not wish to ignore the intervening decisions of California’s intermediate appellate courts.” The 9th Circuit panel — made up of Senior Judges Jerome Farris and Dorothy Nelson and Judge Ronald Gould — said the state Supreme Court’s resolution would be binding on the federal case. “If the California Supreme Court decides that, under California law, a plaintiff cannot overcome the presumed awareness that smoking causes addiction and other health problems, and so show justifiable reliance on cigarette manufacturers’ fraud,” the 9th Circuit wrote, “we will affirm the dismissal of both of the plaintiffs’ complaints by the district court.” If the state Supreme Court decides otherwise, the three judges wrote, they would reverse the district court in favor of Cannata and Grisham. Neither Maurice Leiter, one of Philip Morris’ attorneys (a partner in the Los Angeles office of Arnold & Porter), nor Ralph Campillo, a partner in the L.A. office of Sedgwick, Detert, Moran & Arnold who represents Brown & Williamson, could be reached for comment Wednesday. Kentfield, Calif., solo practitioner Daniel Smith, one of the plaintiffs attorneys, said he was glad “for this opportunity to set 9th Circuit law in line with California law.” “We suspect,” he added, “that the Supreme Court would rule that a smoker’s addiction does not later bar a smoker’s claim for lung cancer.” The case is Grisham v. Philip Morris, S132772. Also on Wednesday, the high court denied review in another Philip Morris case. The decision in Boeken v. Philip Morris, S133884, lets stand a ruling by L.A.’s 2nd District Court of Appeal that granted the tobacco giant a new trial on punitive damages unless the survivors of cancer victim Richard Boeken agreed to accept $50 million. Jurors originally awarded a record $3 billion in 2001, but the appeal court reduced it to $100 million, then sliced it in half again last year.

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