The supreme court's decision in Hamilton will have little relevance when applying the statute of limitations in other toxic tort contexts
By Daniel L. Martens
Daniel L. Martens is a senior associate in the Los Angeles office of Latham & Watkins. He specializes in toxic tort and products liability litigation.
For many years, courts and litigants alike have struggled with the proper application of statutes of limitations in toxic tort cases in which the plaintiff alleges injury or illness following long-term exposure to a purported toxic substance. Unlike traditional "snapshot torts," in which a physical impact and the resulting immediate injury plainly identify the beginning of the limitations period, toxic tort cases often present a more complicated factual scenario. As one commentator has noted, "The combination of lengthy latency periods and diagnostic difficulties is a unique feature of toxic substances cases for purposes of statutes of limitations analysis: No temporally discrete event exists that encompasses the defendant's breach and the plaintiff's injury."1
California courts have addressed this difficult issue in a variety of contexts and under differing factual circumstances, invoking various rules of law and general equitable principles that appear to apply. Last year, the California Supreme Court added another piece to this puzzle—albeit a small piece—when it held in Hamilton v. Asbestos Corporation, Limited2 that the applicable one-year limitations period did not bar a plaintiff from filing suit in 1996 claiming personal injury due to asbestos exposure, even though the plaintiff had filed a prior action in 1993 claiming injury from the same exposure. In reaching its holding, the court invoked a very narrow and technical reading of the unique California statute that establishes the one-year limitations period for asbestos cases. The court also purported to limit the longstanding rule against splitting a single claim or cause of action into multiple claims.
The overall impact of the court's opinion, however, is very limited. Notwithstanding the seemingly broad language contained in some parts of the decision, the court's reasoning and ultimate holding are limited to asbestos cases and the particular facts that were before the court. As a result, the Hamilton case has very little impact on prior holdings of California courts that have applied the "primary right" theory and the rule against splitting a cause of action in nonasbestos toxic tort cases and cases in which the plaintiff claims several different injuries arising from the same wrongful act. In those cases, the law forecloses the argument that a new limitations period commences with each new disease or illness. That would amount to splitting a cause of action.
Instead, the applicable one-year limitations period begins to run when the first manifestations of illness appear. It is not material that not all the damages arising from the defendant's alleged wrongful act have been sustained at that time. If a plaintiff fails to file suit within one year of discovery of the first illness and its alleged cause, the entire action is time-barred. The Hamilton decision does not change this established California law.
The facts of Hamilton are fairly simple. Beginning in the early 1940s, the plaintiff, Arthur Mitchell, was employed in various industrial workplaces where he was exposed to asbestos. His exposure ended in 1963, when he retired. In the late 1970s, he began to experience shortness of breath and ultimately was diagnosed in 1979 with asbestosis (scarring and thickening of lung tissue). He filed his first lawsuit (Hamilton I) in October 1993, claiming that this lung condition was caused by his exposure to asbestos. Several years later, in early 1996, Mitchell was diagnosed with peritoneal mesothelioma (a cancerous growth throughout his abdominal cavity). He filed a second lawsuit (Hamilton II) in February 1996. As in his first action, Mitchell alleged that his medical condition, this time mesothelioma, was caused by his many years of exposure to asbestos in the workplace.
At the trial court level, one of the defendants in Hamilton II moved to have the plaintiff's claim involving mesothelioma dismissed on statute of limitations grounds, arguing that the applicable one-year limitations period commenced with the filing of Hamilton I in 1993 and thus had long since expired by the time the plaintiff filed Hamilton II in 1996. Although the trial court denied that motion, the California Court of Appeal reversed.3
In its decision, the court squarely addressed the plaintiff's argument that the law should recognize "a separate cause of action and new running of the statute for [a] late-developed cancer injury like mesothelioma."4 The court declined to recognize such a rule, explaining that "California follows the primary right theory, which generally prevents a plaintiff from 'splitting' his or her cause of action," and that "if the statute of limitations bars an action based upon harm immediately caused by [the] defendant's wrongdoing, a separate cause of action based on a subsequent harm arising from that wrongdoing would normally amount to splitting a cause of action."5 Although recognizing that "harsh results" may arise with the application of this rule in cases like Hamilton, in which the plaintiff "suffers a progressive occupational disease," the court of appeal held that the applicable one-year limitations period began to run when Mitchell first alleged his indivisible claim for personal injury in Hamilton I.6 As a result, the claim he sought to advance in Hamilton II was time-barred.
The Supreme Court's Decision
The California Supreme Court reversed, finding that neither of Mitchell's actions was time-barred.7 The court offered a two-part analysis, first addressing the unique statute of limitations for asbestos cases, and then turning to the lower court's analysis of the rule against splitting a cause of action.
The court began with a review of Code of Civil Procedure Section 340.2—the one-year statute of limitations for asbestos cases in California—and several decisions that have construed the particular language of that statute. Section 340.2 provides that any action alleging injury or illness "based upon exposure to asbestos" must be brought within one year after the plaintiff first sustains a "disability" related to asbestos exposure. Unlike the separate limitations period that applies to most other types of personal injury claims, which generally begins to run at "the time the first manifestations of illness appear,"8 Section 340.2 defines "disability" as the plaintiff's "loss of time from work as a result of [asbestos] exposure." Accordingly, the one-year limitations period in asbestos cases does not run from the date of the injury or its discovery but only commences once the alleged injury causes the plaintiff to lose time from work. It is this unique aspect of Section 340.2 upon which the supreme court grounded its holding.
Focusing on the "plain meaning" of Section 340.2, the court held that Hamilton II was timely filed. According to the court, because Mitchell "retired for reasons unrelated to his earlier asbestos exposure," he did not ever suffer a disability within the meaning of Section 340.2, notwithstanding the significant illness he experienced as a result of his prior exposure.9 Because no disability was present, the one-year limitations period had not commenced—much less expired—by the time he filed Hamilton II.
Taking that reasoning a step further, the court held that Mitchell's filing of Hamilton I had no bearing on the issue of when the limitations period commenced. The court concluded that "the accrual of a cause of action for asbestos-related injury" is separate and distinct from "the beginning of the limitations period prescribed by Section 340.2."10 Unlike other claims involving latent injury or disease, the limitations period in asbestos cases does not commence until the plaintiff actually loses time from work. Therefore, "although the filing of an action for asbestos-related injury may be said…to be an 'admission' that the cause of action has accrued in the ripeness sense, it is not an admission that the limitations period of section 340.2 has simultaneously begun." To hold otherwise, the court noted, "is to rewrite the statute."11
In the second part of its decision, the court considered the lower court's reliance on the primary right doctrine and the rule against splitting a cause of action. The court began its analysis by stating that it need not reach the issue of whether Mitchell "had a separate primary right to be free from each of the two diseases resulting from his asbestos exposure."12 Rather, the court assumed for purposes of argument that the filing of Hamilton II "violated the rule against splitting a cause of action."13 Even so, the application of that rule did not bar Hamilton II and, in its contrary holding, the court of appeal had "confused the rule against splitting a cause of action with the statute of limitations."14 The supreme court explained:
The rule against splitting a cause of action is neither an aspect of, nor a restatement of, the statute of limitations; rather it is in part a rule of abatement and in part a rule of res judicata.…The primary right theory has a fairly narrow field of application. It is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits. The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement…or (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata.…Neither of these applications of the rule against splitting a cause of action depends on whether the second action was brought within the period allowed by the statute of limitations. Conversely, application of the statute of limitations does not depend on whether a prior action was brought, or how it was resolved.15
The court determined that the defendant's failure to plead the pendency of Hamilton I in seeking an abatement of Hamilton II resulted in a waiver by the defendant of all potential arguments relating to the rule against splitting a cause of action.
The Fundamental Limits of Hamilton
Notwithstanding the seemingly broad language the court used in some parts of its opinion, the holding in Hamilton does not add much to the analysis relating to the application of limitations periods in toxic tort cases. The decision is limited in at least two fundamental respects.
First, Hamilton is limited to asbestos cases and the special limitations period that applies to such cases. Indeed, the court began its analysis by drawing a sharp distinction between the one-year statute of limitations that applies in asbestos cases—which commences only after the plaintiff loses time from work—with the limitations period that applies in most other types of personal injury cases—which generally commences as soon as the first signs of injury appear. As the court explained, the unique nature of the asbestos statute of limitations creates the unusual result that "accrual of a cause of action for asbestos related injury" does not mark the beginning of the limitations period.16 Thus the court concluded that an asbestos plaintiff who has not lost time from work does not trigger the one-year limitations period by filing a personal injury complaint based on asbestos exposure.
This is not true with respect to other types of personal injury actions. In most cases, the applicable one-year limitations period does begin to run upon accrual of the cause of action. As a result, the filing of a personal injury lawsuit likely would commence the statute of limitations in nonasbestos cases. The court appeared to concede this point, reasoning that such an act "may be said…to be an 'admission' that the cause of action has accrued in the ripeness sense."17 The court's reasoning, as well as its ultimate holding, therefore applies only to asbestos cases and cannot properly be extended to other types of personal injury actions.
Second, the Hamilton decision is limited to its facts, particularly with respect to the portion of the opinion that purports to circumscribe the longstanding rule against splitting a cause of action. The plaintiff in Hamilton filed two different lawsuits alleging injury relating to the same asbestos exposure. In considering those facts, the court stated that the rule against splitting a cause of action does not require consideration of the limitations period but rather "is in part a rule of abatement and in part a rule of res judicata."18 The court explained that "if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement," and "if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata."19 Although addressing these two potential scenarios in which a plaintiff may attempt to split a cause of action, the court did not consider a third important and common scenario: a plaintiff who alleges in a single lawsuit that several medical conditions purportedly were caused by the same toxic exposure.
Such a scenario is not unusual in modern toxic tort cases, and an example is easily imagined. A plaintiff who lived near an industrial facility for many years develops pancreatic cancer in 1997 and then colon cancer in 1999. He files suit in 2000 alleging that both conditions were caused by his exposure to a particular chemical used by the facility during the time he lived in the area.20 The defendant asserts that the applicable one-year limitations period bars the plaintiff's entire action, which expired in 1998—one year after the plaintiff first discovered he was injured as the result of toxic exposure. The plaintiff argues otherwise, contending that a new limitations period commenced in 1999, when he developed colon cancer.
Under facts such as these, neither the rule of abatement nor the rule of res judicata apply. There is nothing to abate because the plaintiff advances only one pending action. Res judicata is inapplicable because there was no prior suit, much less a prior judgment on which the bar of res judicata could be based. Accordingly, when a toxic tort plaintiff alleges more than one medical condition in the same lawsuit—a situation that the Hamilton court was not required to address—the rule against splitting a cause of action meets head-on with the applicable statute of limitations.
Miller Unchanged by Hamilton
Because the Hamilton court did not consider the situation of a plaintiff who alleges more than one medical condition in a single lawsuit, its decision leaves unchanged the leading case in California addressing this issue: Miller v. Lakeside Village Condominium Association, Inc.21 In Miller, the plaintiff brought a personal injury action against her condominium association in 1986, alleging that she developed "immune dysregulation" as the result of mold growing behind the walls of her condominium unit. The defendant filed a motion for summary judgment on the ground that the one-year statute of limitations had expired before the plaintiff filed her action. Specifically, the defendant asserted that the plaintiff filed her action more than one year after she had suffered "actual and appreciable harm"—asthma and allergies—that she knew was caused by the mold in her unit. In opposing the motion, the plaintiff contended that her lawsuit was not based on asthma and allergies, which she attributed to the mold in 1984, but rather on immune dysregulation, which was not diagnosed until 1986. She argued that the symptoms she suffered in connection with immune dysregulation were more severe and debilitating than those normally associated with allergies or asthma and, further, these new symptoms constituted a new and separate injury, thus commencing a new limitations period.
In contrast, the defendant contended that the plaintiff's exposure to the mold constituted the invasion of one primary right, which caused her appreciable harm long before she filed suit. The defendant argued that permitting the plaintiff's later-diagnosed immune dysregulation to serve as the basis for a separate claim would allow the plaintiff to split her cause of action and avoid the statute of limitations. The court agreed:
The long-standing rule in California is that a single tort can be the foundation of but one claim for damages. Accordingly, if the statute of limitations bars an action based upon harm immediately caused by [the] defendant's wrongdoing, a separate cause of action based on a subsequent harm arising from that wrongdoing would normally amount to splitting a cause of action.…Given the above facts, reasonable minds can draw only one conclusion—that [the plaintiff] suffered appreciable and actual harm…by October 1984, and that she was aware of its negligent cause by October 1984.22
Pursuant to Miller, the law does not allow a toxic tort plaintiff to split a single cause of action into separate claims by contending that only a "portion" of the plaintiff's claimed injury or illness is time-barred.23 The California Court of Appeal reconfirmed this point in 1999—and reaffirmed Miller in the process—in a case that involved two alleged injuries that were more separate and distinct than the asthma and immune dysregulation at issue in Miller. In Bennett v. Shahhal,24 the plaintiff underwent surgery to have a shunt inserted into his brain that drained fluid into his abdomen. A short time later, after complications developed in the plaintiff's abdomen, he suspected that his physician might have committed malpractice during the procedure. Although he met with a lawyer in June 1996 to discuss filing a lawsuit, he elected not to file suit at that time. The plaintiff then developed further complications, this time with the portion of the shunt in his brain. After undergoing another surgical procedure to correct the problem, he filed suit against his physician in July 1997, alleging malpractice in connection with the first surgery.
The court granted the defendant's motion for summary judgment on statute of limitations grounds, holding that the one-year limitations period expired before the plaintiff filed suit, and that the established rule against splitting a cause of action prevented him from dividing his claim into two actions—one for injury to his abdomen and another for injury to his brain. Citing Miller, the court declared:
A malpractice action may not be pursued piecemeal. As a general rule, where an injury, although slight, is sustained in consequence of the wrongful act of another, the statute of limitations attaches at once. It is not material that all the damages resulting from the act shall not have been sustained at that time, and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date.…The long-standing rule in California is that a single tort can be the foundation for but one claim for damages. Accordingly, if the statute of limitation bars an action based upon harm immediately caused by [the] defendant's wrongdoing, a separate cause of action based on a subsequent harm arising from that wrongdoing would normally amount to splitting a cause of action.25
Considering again the example of the plaintiff who developed pancreatic cancer in 1997 and then colon cancer in 1999, the law under Miller and Bennett renders the entire action time-barred, even though the plaintiff developed colon cancer within one year of filing suit in 2000. The plaintiff may not pursue the two types of cancer in separate actions. The plaintiff alleges that both types of cancer were caused by the same wrongful act—the same exposure, to the same toxin, from the same source, during the same time period. The two cancers, therefore, like the separate and distinct abdomen and brain injuries at issue in Bennett, are merely different manifestations of the harm brought about by the same wrongful act; they do not provide the basis for separate causes of action.26 The one-year statute of limitations began to run when the plaintiff developed pancreatic cancer in 1997, and a new limitations period did not commence in 1999 when he later developed colon cancer. The law simply does not allow the plaintiff to split his single cause of action into two separate claims, one that is time-barred (pancreatic cancer) and one that is not (colon cancer).27 As a result, the plaintiff's entire personal injury action is time-barred by the time he files suit in the year 2000.
Several California courts, including the court of appeal in Hamilton, have recognized that strict application of this rule in toxic tort cases may bring harsh results when the plaintiff claims more than one illness or disease. For the most part, however, those courts have declined to make an exception to the rule, opting instead to leave any alteration of the law to the legislature.28 Although two cases—Martinez-Ferrer v. Richardson-Merrell, Inc.,29 decided in 1980, and Zambrano v. Dorough, decided in 198630—declined to apply the rule against splitting a cause of action, subsequent decisions have strongly criticized the holdings of those cases.31 In fact, over the last 20 years in the United States, at least 11 courts—8 of them California courts—have specifically declined to follow the rationale advanced in those decisions.32
Notwithstanding the consistent and strong criticism directed at each of those cases over the years, a federal court in California recently relied upon Martinez-Ferrer to allow plaintiffs in a nonasbestos toxic tort case to split their causes of action. In O'Connor v. Boeing North American, Inc.,33 the court held that claims based on illnesses developed more than one year before the plaintiffs filed suit were time-barred, but claims based on illnesses diagnosed within that one-year window were not time-barred. The opinion, however, does not appear to be well reasoned. The court undertook very little analysis in reaching its holding and failed to mention or consider either the primary right theory or the rule against splitting a cause of action. Likewise, the O'Connor court failed to consider the reasoning or holdings of Miller or Bennett. Furthermore, the court cited Hamilton in a footnote, contending that it was "instructive," but failed to appreciate that the Hamilton court's reasoning and holding were inextricably tied to the special statute of limitations for asbestos cases and are inapplicable in any nonasbestos case. O'Connor therefore does not appear to represent the law in California on this issue.34
The law established by the holdings in Miller and Bennett thus is unchanged by Hamilton. Hamilton is limited to asbestos cases and to its facts, which did not include a plaintiff who alleges several medical conditions in the same lawsuit. When that factual scenario is present, the holdings of Miller and Bennett apply, and the rule against splitting a cause of action should prevent a plaintiff from arguing that a new limitations period commences with each new injury or illness that develops.
1 Michael D. Green, The Paradox of Statutes of Limitations in Toxic Substances Litigation, 76 Cal. L. Rev. 965, 976 (1988). In his article, Green proposes the radical notion that statutes of limitations should be abolished entirely in toxic tort litigation, thereby leaving the decision when to file suit to the discretion of the plaintiff.
2 Hamilton v. Asbestos Corp., Ltd., 22 Cal. 4th 1127, 95 Cal. Rptr. 2d 701, 998 P. 2d 403 (2000), reh'g denied, 2000 Cal. LEXIS 5865 (July 19, 2000). Originally encaptioned Arthur Mitchell v. Asbestos Corp. Ltd., this case was recaptioned after the plaintiff Arthur Mitchell died from mesothelioma in June 1997, and the court of appeal ordered Mitchell's adult daughters, Linda Hamilton and Janet Iorio, to be substituted as his successors in interest. 22 Cal. 4th 1127 n.8.
3 Mitchell v. Asbestos Corp. Ltd., 62 Cal. App. 4th 200, 73 Cal. Rptr. 2d 11 (1998).
4 Id. at 209.
5 Id. at 209-10.
6 Id. at 210-11.
7 The California Supreme Court granted review in June 1998. Oral argument was heard on March 8, 2000, and the supreme court issued its opinion on May 15, 2000. Defendant Asbestos Corporation moved for a rehearing in July 2000, but the court denied that request. Hamilton v. Asbestos Corp., Ltd., 22 Cal. 4th 1127, 95 Cal. Rptr. 2d 701, 998 P. 2d 403 (2000), reh'g denied, 2000 Cal. LEXIS 5865 (July 19, 2000).
8 Barr v. ACandS Inc., 57 Cal. App. 4th 1038, 1048, 67 Cal. Rptr. 2d 494, 500 (1997).
9 Hamilton, 22 Cal. 4th at 1142.
10 Id. at 1144.
11 Id. at 1145.
12 Id. at 1146. Earlier in its opinion, the court concluded that based on medical testimony relating to Mitchell's two claimed conditions, "the asbestosis found in Mitchell's lungs in 1979 and the malignant mesothelioma found in his abdomen in 1996 were two separate and distinct diseases." Id. at 1136. Justice Brown, in a concurring opinion, took this notion a step further by contending that "the causes of action in the second complaint were separate and distinct from those in the first complaint, and the filing of the first action did not trigger the one-year statute of limitations for the causes of action in the second action." Id. at 1150. This argument runs directly contrary to the rule against splitting a cause of action. See Bennett v. Shahhal, 75 Cal. App. 4th 384, 89 Cal. Rptr. 2d 272 (1999); Miller v. Lakeside Village Condo. Ass'n, Inc., 1 Cal. App. 4th 1611, 2 Cal. Rptr. 2d 796 (1991).
13 Hamilton, 22 Cal. 4th at 1146.
16 Id. at 1144.
17 Id. at 1145.
18 Id. at 1146.
20 This example assumes that at least one year before filing suit, the plaintiff knew or reasonably should have known that the chemical at issue was a purported carcinogen and was used at the facility. See Norgart v. The Upjohn Co., 21 Cal. 4th 383, 404, 87 Cal. Rptr. 453, 465, 981 P. 2d 79, 92 (1999) (examining factual basis necessary to establish that plaintiff knew or should have known alleged cause of injury); Clark v. Baxter Healthcare Corp., 83 Cal. App. 4th 1048, 1059, 100 Cal. Rptr. 2d 223, 230 (2000) (same).
21 Miller v. Lakeside Village Condo. Ass'n, Inc., 1 Cal. App. 4th 1611, 2 Cal. Rptr. 2d 796 (1991).
22 Id. at 1622-25.
23 At least one trial court has held otherwise. See Aguayo v. Betz Labs., L.A. Superior Court Case No. 123749 (minute order issued Feb. 18, 2000), petition for writ of mandate denied by California Court of Appeal (Apr. 14, 2000).
24 Bennett v. Shahhal, 75 Cal. App. 4th 384, 89 Cal. Rptr. 2d 272 (1999).
25 Id. at 391-92.
26 Miranda v. Shell Oil Co., 17 Cal. App. 4th 1651, 1659, 26 Cal. Rptr. 2d 655, 659 (1993) (defining plaintiff's "primary right" in toxic tort case as "his or her interest in avoiding harm as a result of exposure to pollutants"; holding that plaintiff's various alleged injuries were "different manifestations of the harm brought about by the exposure," and not "separate 'primary rights,' each of which produces a separate cause of action").
27 Other jurisdictions have similarly rejected the notion that a new limitations period commences with each new injury experienced by a plaintiff. See, e.g., Joyce v. ACandS, Inc., 785 F. 2d 1200, 1204-05 (4th Cir. 1986) (preventing the plaintiff from splitting cause of action so that new limitations period commences with onset of "subsequent and distinct" disease allegedly caused by "the same wrongful act"); Gideon v. Johns-Manville Sales Corp., 761 F. 2d 1129, 1136 (5th Cir. 1985) (holding that "a plaintiff may not split his cause of action" because a claim for damages "inheres in the causative aspects of a breach of legal duty, the wrongful act itself, and not in the various forms of harm which result therefrom"; thus a plaintiff "does not have a discrete action for each harm"); Newton v. Southern Wood Piedmont Co., 163 F.R.D. 625, 633 (S.D. Ga. 1995), aff'd, 95 F. 3d 59 (11th Cir. 1996) (plaintiff who alleged numerous physical infirmities resulting from exposure to chemicals at wood treatment plant barred by limitations period when she later claimed new skin condition based on same exposure); Caldwell v. A. H. Robins Co., 577 F. Supp. 796, 797 (W.D. Pa. 1984), aff'd, 735 F. 2d 1347 (3d Cir. 1984) ("[The] plaintiff is not entitled to a new limitations period to begin with the appearance of each new injury" but rather "[t]he limitations period begins to run when damage is inflicted which is 'physically objective and ascertainable.'").
28 Bennett v. Shahhal, 75 Cal. App. 4th 384, 392, 89 Cal. Rptr. 2d 272, 278 (1999) (refusing to split cause of action because any alteration of the applicable statute of limitations "should come from the Legislature"); Miranda v. Shell Oil Co., 17 Cal. App. 4th 1651, 1659, 26 Cal. Rptr. 655, 659 (1993) ("We neither overlook nor underestimate the dilemma posed to a toxic-tort plaintiff by the single cause of action principle.…Nevertheless, we decide none of these issues…[and] we encourage the Legislature to look into the matter.").
29 Martinez-Ferrer v. Richardson-Merrell, Inc., 105 Cal. App. 3d 316, 164 Cal. Rptr. 591 (1980).
30 Zambrano v. Dorough, 179 Cal. App. 3d 169, 224 Cal. Rptr. 323 (1986).
31 Moreover, the facts in both Martinez-Ferrer and Zambrano are distinguishable from the example of the plaintiff claiming both pancreatic cancer and colon cancer. The Zambrano court characterized the plaintiff's first injury as "relatively minor." Zambrano, 179 Cal. App. 3d at 172. Similarly, the Martinez-Ferrer court identified the initial injury sustained by the plaintiff as a "relatively minor problem " that was "relatively innocuous." Martinez-Ferrer, 105 Cal. App. 3d at 324-25. Under any standard, cancer is neither relatively minor nor relatively innocuous. Thus, to the extent the holdings in Zambrano or Martinez-Ferrer were based on the fact that the plaintiff's first disorder was minor, the holdings are inapplicable to cases with facts similar to those presented in the example.
32 California decisions: Henry v. Clifford, 32 Cal. App. 4th 315, 323 (1995) (finding plaintiff's reliance on Martinez-Ferrer to be "clearly misplaced"); Cottle v. Superior Court, 3 Cal. App. 4th 1367 n.1 (1992) (dissent describing Martinez-Ferrer as a "narrow exception to the policy against splitting causes of action" and "criticized in subsequent opinions"); Miller v. Lakeside Village Condo. Ass'n, Inc., 1 Cal. App. 4th 1611, 1625-28 (1991) (rejecting reasoning of Martinez-Ferrer, noting that decision has been "soundly criticized…[for] disregarding the rule against splitting a cause of action"); Marsha V. v. Gardner, 231 Cal. App. 3d 265, 281 (1991) (dismissing plaintiff's action as untimely and rejecting argument that plaintiff should be allowed to recover for injuries plaintiff did not discover until recently; citing Martinez-Ferrer in dissenting opinion); Evans v. Eckelman, 216 Cal. App. 3d 1609, 1620 (1990) (refusing to follow Martinez-Ferrer, characterizing it as having been "decided solely on its facts and without formulation of a broad rule"); DeRose v. Carswell, 196 Cal. App. 3d 1011 n.8 (1988) (finding that plaintiff's action for subsequently discovered injuries was time-barred; criticizing Martinez-Ferrer's disregard and "assault" on rule against splitting cause of action; noting that no reported case has relied upon Zambrano); Rosenblatt v. Ernst & Young Int'l, Ltd., 87 F. Supp. 2d 1048, 1054 (S.D. Cal. 2000) (distinguishing and declining to follow Martinez-Ferrer); Sanderson v. International Flavors and Fragrances, Inc., 1996 U.S. Dist. LEXIS 20671 n.5 (C.D. Cal. July 10, 1996) (same). But see O'Connor v. Boeing N. American, Inc., 114 F. Supp. 2d 949, 953 (C.D. Cal. 2000) (applying reasoning of Martinez-Ferrer to allow toxic tort plaintiff to continue with portion of claim even though some portion of claim was time-barred). Non-California decisions: Anderson v. W. R. Grace & Co., 628 F. Supp. 1219 n.7 (D. Mass. 1986) (denying plaintiffs' damages for the increased risk of harm and distinguishing Martinez-Ferrer); Hall v. Romero, 685 P. 2d 757, 762 (Ariz. Ct. App. 1984) (distinguishing Martinez-Ferrer and dismissing plaintiff's claim as untimely); Braswell v. Flintoke Mines, Ltd., 723 F. 2d 527, 533 (7th Cir. 1983) (upholding dismissal of asbestos exposure claims as untimely; citing Martinez-Ferrer in dissenting opinion).
33 O'Connor, 114 F. Supp. 2d 949.
34 Only three months before the O'Connor decision, a different federal court rejected a plaintiff's argument that "even if the statute of limitations began running" on a particular date, "'new and separate' losses" sustained later in time "served to 're-start' the statute of limitations." Rosenblatt, 87 F. Supp. 2d at 1054. In rejecting that theory, the court cited and followed the holdings in Miller v. Lakeside Village Condo. Ass'n, Inc., 1 Cal. App. 4th 1611, 2 Cal. Rptr. 2d 796 (1991), and Bennett v. Shahhal, 75 Cal. App. 4th 384, 89 Cal. Rptr. 2d 272 (1999), and specifically refused to adopt the reasoning or holding in Martinez-Ferrer, 105 Cal. App. 3d 316.