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Smith v. Bayer Corp.12/28/2001
ased upon this reasoning, plaintiffs claim defendants have failed to establish that plaintiffs had the requisite knowledge of their injuries sufficient to commence the statute of limitations running on their claims. We disagree.
In San Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, the court focused upon the issue of what constitutes an "injury" for purposes of determining when a statute of limitations will commence running, holding that an "injury" has occurred when one has suffered " ctual appreciable harm ... contrasted with nominal damages, speculative harm or the threat of future harm." (Id. at p. 1330.) The court was careful to note, however, that " either uncertainty as to the amount of damages nor difficulty in proving damages tolls the limitations period. [Citations.] The extent of damage is not an element of a cause of action in tort.... The plaintiff must be aware of the physical manifestation of the injury for the cause of action to accrue and the statute of limitations to begin running." (Id. at p. 1332.)
Without doubt, plaintiffs suffered actual and appreciable harm when they contracted the HIV virus. By 1986, both plaintiffs had tested positive of the HIV virus, which had therefore manifested. In addition, Smith testified his "worst fears" were realized when he tested HIV positive. Dowling "freaked out" when his factor concentrates were recalled, and that he knew being HIV positive was a bad thing and not something he wanted to be. In the 1980's both plaintiffs knew people who were dying from AIDS and both understood at some level the connection between becoming infected with the HIV virus and contracting AIDS.
Essentially, what plaintiffs claim is that they did not know the extent of their injuries. However, pursuant to San Francisco Unified School Dist. v. W.R. Grace & Co., supra, 37 Cal.App.4th 1318, it is irrelevant that plaintiffs may have faced some uncertainty as to the amount of damages or difficulty in proving damages, because the extent of plaintiffs' damage is not an element of a cause of action in tort.
Thus, we find that plaintiffs Smith and Dowling suffered "injuries" in 1985 and 1986, respectively, when they were diagnosed as having the HIV virus, sufficient to commence the statute of limitations running on their causes of action to the extent that defendants are able to satisfy the other elements of the three part Jolly test.
2. The statute of limitations on plaintiffs' causes of action was tolled from December 31, 1993 through January 17, 1996, and from April 19, 1996 through July 16, 1997.
Plaintiffs contend that the one-year statute of limitations on their causes of action was tolled by the Wadleigh and Walker federal class actions. We agree.
A. The Wadleigh Class Action
On September 30, 1993, a class action entitled Wadleigh, et al v. Rhone-Poulenc Rorer, Inc., was filed in the United States District Court for the Northern District of Illinois by Jonathan Wadleigh, a hemophiliac, and others on behalf of all persons, living or dead, who had used clotting concentrate products made, processed, sold or distributed by any of four entities called fractionators, including defendants Baxter and Bayer (f/k/a "Miles, Inc.). On November 3, 1994, the District Court certified a litigation class to resolve certain issues it believed common to all these cases.
On March 16, 1995, in response to the fractionators' petition for a writ of mandamus, the United States Court of Appeals for the Seventh Circuit held that these issues were not properly certified as a class action and directed the District Court to decertify the class. (Matter of
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