Perspective
Jun. 11, 2016
Prenatal limitations statute circuit split
New 9th Circuit decision causes split on which statute of limitations applies to claims of prenatal chemical exposure. By Don Willenburg
Don Willenburg
Partner, Gordon & Rees LLP
appellate law, litigation, special master
1111 Broadway Ste 1700
Oakland , CA 94607
Phone: (510) 463-8600
Fax: (510) 984-1721
Email: dwillenburg@grsm.com
Stanford Univ Law School
Don is chair of the firm's Appellate Practice Group in Oakland, and an attorney member of the Information Technology Advisory Committee to the Judicial Council. The views expressed are his own.
California has one statute of limitations regarding prenatal injuries, and another for exposure to toxic substances. The prenatal statute is six years after the date of birth, with no tolling for the child's minority status. The toxic tort statute is two years from the date of injury, but like most statutes of limitation is subject to tolling while plaintiff is a minor. Which governs when the claimed injury is prenatal exposure to toxic substances?
Recently, in Lopez v. Sony Electronics Inc., a California Court of Appeal applied the six-year statute to alleged injuries to the unborn child of a worker who claimed workplace exposure to chemicals. The decision expressly contradicts an earlier decision on point, potentially setting up California Supreme Court review and in the meantime allowing trial courts to rule either way on the question.
Lopez acknowledged that both statutes "may be read to govern plaintiff's action for injuries sustained before her birth and for exposure to toxic substances," so the court examined the history and purpose of the statutes to determine which should control. The prenatal statute (presently at Calif. Code Civil Procedure Section 340.4) had been set at six years since at least 1941. The toxic tort statute (Calif. Code Civil Procedure Section 340.8) was first enacted in 1984, and "[t]he legislative records reveal a narrow and specific purpose for the enactment of section 340.8, having nothing to do with prenatal injuries." Instead, it was to codify the applicability of the doctrine of delayed discovery to claims related to hazardous waste and other toxic substances. Based on standards of statutory interpretation, Lopez declined to conclude "that the Legislature intended to overthrow that longstanding law, without expressly saying so, and having expressed an entirely different purpose for enacting section 340.8." In other words, the Legislature "does not ... hide elephants in mouseholes."
Lopez, a decision from Southern California, expressly disagrees with an earlier decision on similar facts from Silicon Valley, Nguyen v. Western Digital Corporation, 229 Cal. App. 4th 1522 (2014). Nguyen reasoned that because the toxic tort statute was later-enacted and more specific, it should control over the earlier-enacted and more general prenatal injury statute. Further, "section 340.8 applies to 'any civil action for injury or illness based upon exposure to a hazardous material or toxic substance" (italics in Nguyen), and "the word 'any' ... in a statute unambiguously reflects a legislative intent for that statute to have a broad application" - in this case, "regardless of the plaintiff's age at the time of injury."
Nguyen pointed out that when the toxic tort statute was enacted, "the legislative history indicates that the Legislature wanted to expressly provide that the discovery rule applies in cases alleging injury due to exposure to toxic substances and to disapprove of specified case law on the issue of inquiry notice and media reports." "[T]here is no indication that the Legislature intended, and it makes no sense, for there to be a different discovery rule (e.g., regarding inquiry notice and media reports) depending on whether the toxic exposure occurred before or after birth."
Nguyen was decided on fairly unusual facts (the six-year statute had not yet run when the toxic tort statute was enacted, which will not be true for any but a small number of potential plaintiffs), but its holding was not so limited. It is irreconcilable with Lopez.
The dissent in Lopez (a 2-1 decision) agreed with Nguyen, further increasing the chance of California Supreme Court review. Review would in the past have meant that Lopez would be depublished, but the automatic depublication rule will expire July 1, 2016. This might be a fine example of a time when it is best to leave in place citable authority on both sides of a question.
Don Willenburg is chair of the Appellate Practice Group at Gordon & Rees.
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