Friday, May 13, 2016

Lopez v. Sony Electronics (Cal. Ct. App. - May 13, 2016)

Justice Grimes writes an opinion today that's crystal clear as to its holding.  The introduction to the opinion is as informative as it is concise:

"We are asked to resolve whether an action alleging personal injuries caused by prenatal exposure to toxic substances is governed by the statute of limitations set forth in Code of Civil Procedure section 340.41 (applicable to tort actions for birth and prebirth injuries), or the statute of limitations set forth in section 340.8 (applicable to tort actions for exposure to hazardous materials and toxic substances).

Plaintiff and appellant Dominique Lopez, at age 12, by and through her mother and guardian ad litem Cheryl Lopez, brought an action against defendant and respondent Sony Electronics, Inc. (Sony) alleging that her prenatal exposure to toxic substances caused her to suffer birth defects and permanent injuries. Sony successfully argued in the trial court that plaintiff’s action was time-barred under section 340.4, which expressly provides that actions for prenatal injuries are not tolled during the plaintiff’s minority. Plaintiff appeals from the entry of summary judgment in favor of Sony, contending the correct statute of limitations applicable to her claims is section 340.8, under which her action would be timely.

We conclude section 340.4 governs plaintiff’s claims and that her action is time-barred."

You can't get much clearer than that.

Justice Rubin dissents.  Given that it's a split opinion, and involves whether a child who was born with "fusion of her cervical vertebrae, facial asymmetry, dysplastic nails, diverticulum of the bladder, and a misshapen kidney" can sue her alleged tortfeasor, you'd think that there would be at least a non-zero chance that the California Supreme Court would grant review.

But then there's the final sentence of Justice Grime's introduction:  "In so holding, we depart from our colleagues in the Sixth District who concluded that section 340.8 supplants the limitations period of section 340.4 for claims based on prenatal injuries caused by exposure to hazardous materials or toxic substances. (See Nguyen v. Western Digital Corporation (2014) 229 Cal.App.4th 1522 (Nguyen).)"

Given that fact, the chance that the Supreme Court will review the case goes up.  Way up.  Indeed, in my view, to approximately 100 percent.

As it should.  Whether, and when, a child should be able to sue for birth defects shouldn't depend on what panel s/he happens to draw on appeal.

The California Supreme Court should review this case.