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Naegele v. R.J. Reynolds Tobacco Company6/9/2000
As modified July 7, 2000. There is no change in the judgment. Petition for rehearing is denied.
JOSEPH NAEGELE, AS CO-TRUSTEE, ETC., ET AL., PLAINTIFFS AND APPELLANTS,
v.
R.J. REYNOLDS TOBACCO COMPANY ET AL., DEFENDANTS AND RESPONDENTS. RICHARD DONALDSON, AS SUCCESSOR IN INTEREST, PLAINTIFF AND APPELLANT,
v.
R.J. REYNOLDS TOBACCO COMPANY ET AL., DEFENDANTS AND RESPONDENTS.
(City and County of San Francisco Super. Ct. No. 992230) (City and County of San Francisco (Super. Ct. Nos. 992223/992217)
Counsel for Appellants: Harry F. Wartnick Madelyn J. Chaber Phillip Scott Chan Wartnick, Chaber, Harowitz, Smith & Tigerman Counsel for Respondents: H. Joseph Escher III Richard Shively Anne-Marie Eileraas Howard, Rice, Nemerovski, Canady, Falk & Rabkin
CERTIFIED FOR PUBLICATION
For a decade, Civil Code former section 1714.45 gave tobacco manufacturers and sellers almost complete immunity from tort actions based on injuries or death resulting from use of their products. (Stats. 1987, ch. 1498.) A dramatic policy change occurred effective January 1, 1998, when the Legislature amended the statute to eliminate the immunity of manufacturers. (Stats. 1997, ch. 570, ยง 1.) The principal question in these consolidated appeals is whether the amended statute allows individuals who were diagnosed with lung cancer before its effective date to maintain tort actions against tobacco manufacturers. We conclude that the amended statute is not retroactive and that former section 1714.45 bars the actions.
BACKGROUND
In January 1998, Albert J. Pavolini filed a complaint against multiple defendants, including respondents R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company), and Lorillard Tobacco Company, seeking damages for personal injuries caused by cigarettes and asbestos (San Francisco Super. Ct. No. 992223). As later amended, the complaint sought compensatory and punitive damages from respondents under theories of negligence, strict liability, false representations, deceit and fraudulent concealment, and civil conspiracy. The same month, Edwin Brigham filed a similar complaint, except that respondent Lorillard was not among the defendants (San Francisco Super. Ct. No. 992230).
Respondents demurred to both complaints on several grounds, including that the causes of action were barred by former section 1714.45 and that the amended statute did not apply retroactively. The demurrers were sustained with leave to amend in various respects, including pleading injury before January 1, 1988, and after January 1, 1998.
Each plaintiff filed an amended complaint, alleging that at some unknown time before January 1, 1988, the DNA in at least one cell in his lungs was irrevocably injured by smoking and that the injured cell replicated and eventually developed into lung cancer. Each also alleged that his lung cancer was an injury that continued after January 1, 1998. The parties then stipulated to orders severing respondents, termed the "tobacco defendants," from the "asbestos defendants" for separate trial.
Respondents again demurred, arguing that plaintiffs had not alleged and could not allege a cause of action accruing either before January 1, 1988, or after January 1, 1998. In support of the demurrers, respondents asked the court to take judicial notice of answers to interrogatories establishing that Brigham was diagnosed with lung cancer in October 1996 and Pavolini was diagnosed with lung cancer in May 1997. The
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