Confusing Standard: Knowledge in Statute of Limitations Tolling
A group of individuals, or their decedents, living in Southern California were diagnosed with a variety of illnesses, including cancer, in the early 1990’s. In 1997 an epidemiological study was published by scientists at UCLA that found a statistical association between increases in cancer among employees and their employment at Rocketdyne’s Santa Susana Field Laboratory. The plaintiffs filed suit shortly thereafter.
The district court granted summary judgement to the defendants on the ground that the illnesses of the plaintiffs were diagnosed with various diseases more than a year before the suit was filed, and that there was enough publicity about the Rocketdyne facilities to put them on notice that the Rocketdyne operations were a possible cause of their diseases. A three judge panel (the “panel”) of the Court of Appeals, by a two-to-one majority, reversed and remanded as to most of the plaintiffs.
The panel held that under CERCLA (which it deemed controlling) the limitations period does not begin to run until “A plaintiff knows or reasonably should know of a claim” which is when he or she knows “both the existence and the cause of his injury.’” O’Connor v. Boeing North America, Inc., 311 F.3d 1139, 1147 (9th Cir. 2002) (citing United States v. Kubrick, 444 U.S. 111, 113, 122 (1979)). The majority enunciated a rule that a toxic tort plaintiff is under no obligation to investigate a possible claim, or to file suit, until he or she knows that the defendant’s activity is the “likely cause” of injury.
“Thus, the record supports conflicting inferences about whether Plaintiffs were on inquiry notice that the contamination caused their diseases. It does not establish that Plaintiffs were aware that releases from the Rocketdyne facilities were the likely cause, among other causes, of their injuries.”311 F.3d 1139, 1155.
Whether the three-judge panel with the respect to the quantum of “knowledge” required of a plaintiff to begin the running of the statute of limitations indicates that the panel was confused as to the concepts of “possibility,” “probability,” and established scientific fact, and whether this wording confuses when the applicable statute of limitations begins tolling.
ALF’s Amicus Brief:
ALF argues that the panel’s various formulations conflate the trigger for the running of the statute of limitations with the burden of proof of a claim on the merits. Most toxic tort actions involve latent disease, the etiology of which is disputed, and, at least the defendant contends, unknown. The panel’s criterion for triggering the accrual of a claim so as to start the running of the statute of limitations — that “Plaintiffs knew or should have known . . . that the Rocketdyne contamination was the cause of their diseases” — will almost never occur before the suit is filed and discovery is taken.
Amici advance no opinion whether exposures to pollutants from the Rocketdyne facilities were in fact the causes of plaintiffs’ illnesses, nor do they assign a firm probability to that claim. But the panel’s wording suggests to amici that the panel is not clear as to the distinctions between possibility, probability, and established scientific fact. They believe that if the panel’s holding is allowed to stand, a very undesirable legal precedent may be established.
In many cases of claims involving causation in medical matters, the plaintiffs have been unable to prove, even after extensive discovery, that it is “more likely than not” that their postulated cause is the correct one. It is difficult to imagine many situations where, under the language of the panel, the clock would ever start ticking in many toxic tort or product liability cases. The vast majority of toxic tort cases are brought when the plaintiff has only a suspicion of the cause of the disease or injury, yet the majority of the panel would not even start the limitation period until a plaintiff has “knowledge” of the cause of injury. By a parity of reasoning, would the panel have trial courts dismiss such cases unless the plaintiff at the motion to dismiss stage has clear and convincing proof that the defendant more likely than not caused the injury?
ALF asks the Court to grant Appellees petition for rehearing in order to keep a meaningful limitations period in tact.
Status:
On July 6, 2003, the petition for rehearing was denied.
