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November 2013

Gordon & Rees Wins Appeal in Toxic Tort Statute of Limitations Case

Gordon & Rees San Diego partner Kristin Reyna and senior counsel Tatiana Dupuy recently won a case before the California Court of Appeal, First Appellate District, that affirms the trial court’s decision granting summary judgment in a chemical exposure case.   

In the trial court, Gordon & Rees filed a motion for summary judgment contending the plaintiffs’ claims were barred by the two-year statute of limitations governing personal injury and toxic exposure claims.  The evidence supported that the plaintiff began experiencing symptoms of cough, irritation, headaches and shortness of breath more than two years prior to filing the complaint, and he had begun to associate the symptoms with exposure to chemicals at his work by that time also.  The plaintiff had first visited a pulmonologist outside of the two-year period before his complaint was filed, but he was formally diagnosed with occupational asthma within the two-year statutory period before he filed the complaint. 

The trial court found that the statute of limitations began to run as of the plaintiff’s first pulmonologist visit, as he discussed the symptoms with her and she informed him he could have asthma, and this occurred a little over a month prior to the two-year period before the complaint was filed.  The trial court thus granted summary judgment for the Gordon & Rees client. 

The Appellate Court agreed, and affirmed in full following oral argument. On Oct. 31, 2013, the court held that the undisputed facts showed that the plaintiff began to complain about injuries associated with his work, and associated his ailments with his work, months before the first doctor visit, which was Gordon & Rees’ position; and certainly, by his first doctor visit, he was on inquiry notice of his harm and its likely cause.  The Court of Appeal thus held that under the discovery rule, the two-year statute of limitations was triggered more than two years before the complaint was filed and, therefore, the complaint was time-barred. As such, the trial court properly granted summary judgment. 

The Court of Appeal also clarified that although the plaintiff had no diagnosis until within the statutory period, the infliction of appreciable and actual harm, however uncertain in amount, commences the running of the statute of limitations.  Neither uncertainty as to the amount of damages, nor difficulty proving damages, tolls the period of limitations. Even though the plaintiff did not have a diagnosis until within the two-year period, the Appellate Court found there was no question that outside that timeframe, the plaintiff suffered appreciable and actual harm induced by conditions he attributed to his work. 

To read the opinion in Hakimjavadi, et al. v. Getinge USA, Inc., Case No. A134939 (CA First Dist. Court of Appeal, Div. 1, October 31, 2013), click here.

Tatiana Dupuy
Kristin N. Reyna DeHart



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