Altria Should Face Ill Smoker’s Suit, California Court Says

Altria Group Inc. (MO)’s Philip Morris USA Inc. should face claims by a smoker who sued the cigarette maker for lung cancer years after becoming ill, the California Supreme Court said.

Plaintiff Nikki Pooshs smoked from 1953 through 1987 and was diagnosed with pulmonary disease in 1989 and periodontal disease in 1990 or 1991. She knew that both illnesses were caused by smoking and didn’t file a lawsuit until she was diagnosed with lung cancer in 2003, according to the advisory opinion. Philip Morris won a lower court ruling that Pooshs waited too long to file the claims.

The California Supreme Court, based in San Francisco, ruled today that the two earlier illnesses were “qualitatively different” from cancer and didn’t trigger the statute of limitations for suing for misrepresentation, concealment, product liability and failure to warn.

The judges ruled after a federal appeals court in San Francisco considering Pooshs’s case asked for an opinion on the treatment of statute of limitations under California law.

“Although we are disappointed with the decision, the California Supreme Court made it clear that it was not addressing the merits of this case or any case,” Steve Callahan, an Altria spokesman, said in an e-mail.

‘Technical Point’

“Rather, the decision addresses a narrow technical point of law relating to the statute of limitations,” Callahan said. “The decision would be relevant only in a very small fraction of cases filed.”

The lawsuit now goes back to the federal appeals court. The appellate judges are likely to overturn the lower court ruling that threw out Pooshs’s claims, said Lloyd LeRoy, an attorney who represented her. The case would then be sent back to district court where Pooshs still has to prove her case.

“We think the court was right in deciding that a distinct disease should trigger a new statute of limitation,” LeRoy said in a telephone interview. “You don’t want people suing for lung cancer the first time they have a cough, but neither should they be barred from suing when they get cancer.”

The case is Pooshs v. Philip Morris USA Inc., S172023, California Supreme Court (San Francisco).

To contact the reporter on this story: Karen Gullo in San Francisco at kgullo@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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