Grisham v. Philip Morris U.S.A. , 403 F.3d 631 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LESLIE J. GRISHAM, 
Plaintiff-Appellant,
v. No. 03-55780
PHILIP MORRIS U.S.A., a D.C. No.
corporation; BROWN & WILLIAMSON CV-02-07930-SVW
TOBACCO COMPANY CORP.,  Central District
individually and as successor to of California,
the American Tobacco Company Los Angeles
and its predecessor in interest,
British American Tobacco
Industries, PLC,
Defendants-Appellees.

MARIA CANNATA,  No. 03-56018
Plaintiff-Appellant, D.C. No.
v. CV-02-08026-ABC
PHILIP MORRIS USA, INC., aka Central District
of California,
Philip Morris; BROWN &
WILLIAMSON TOBACCO  Los Angeles
CORPORATION, ORDER
Defendants-Appellees. CERTIFYING
QUESTIONS TO
THE CALIFORNIA
 SUPREME COURT
Filed March 29, 2005
Before: Jerome Farris, Dorothy W. Nelson, and
Ronald M. Gould, Circuit Judges.
3717
3718 GRISHAM v. PHILIP MORRIS U.S.A.
Per Curiam Opinion
ORDER
PER CURIAM:
We certify to the California Supreme Court the questions
set forth in Part II of this order. The answers to the certified
questions depend upon California law, and the answers may
be determinative of the outcome of the present appeals. We
find no clear controlling precedent in the decisions of the Cal-
ifornia Supreme Court. The answers provided by the Califor-
nia Supreme Court to the certified questions will be followed
by this court.
All further proceedings in these cases are stayed pending
final action by the California Supreme Court, and these cases
are withdrawn from submission until further notice from this
court. If the California Supreme Court accepts the certified
questions, the parties shall file a joint report six months after
the date of acceptance and every six months thereafter, advis-
ing us of the status of the proceedings.
I. CAPTION AND COUNSEL
A. The captions of the cases are as follows:1
MARIA CANNATA, Plaintiff-Appellant
v.
PHILIP MORRIS USA, INC., aka Philip Morris; BROWN &
WILLIAMSON TOBACCO CORP., Defendants-Appellees
1
Although these appeals have not been consolidated, we have combined
them for purposes of presenting a question for certification to the Califor-
nia Supreme Court.
GRISHAM v. PHILIP MORRIS U.S.A. 3719
AND
LESLIE GRISHAM, Plaintiff-Appellant
v.
PHILIP MORRIS USA; BROWN & WILLIAMSON
TOBACCO COMPANY CORP., Defendants-Appellees.
Maria Cannata and Leslie Grisham are deemed the petitioners
in this request because they appeal the district courts’ rulings
on these issues.
B. The names and address of counsel for the parties are as
follows:
For Maria Cannata: Martin Louis Stanley, 1541 Ocean Ave-
nue, Suite 200, Santa Monica, California 90401.
For Leslie Grisham: Frances M. Phares, Baum Hedlund,
12100 Wilshire Boulevard, Los Angeles, California 90025;
Daniel U. Smith, Law Office of Daniel U. Smith, 21 Ran-
cheria Road, Kentfield, California 94904.
For Philip Morris: Murry R. Garnick, Arnold & Porter LLP,
555 12th Street NW, Washington, D.C. 20004-1206; Maurice
A. Leiter, Arnold & Porter, 777 South Figueroa Street, Los
Angeles, California 90017-5884; Daniel P. Collins, Munger
Tolles & Olson, LLP, 355 South Grand Avenue, Los Angeles,
California 90071.
For Brown & Williamson: Frederick D. Baker, Ralph A.
Campillo, Sedgwick, Detert, Moran & Arnold, 801 South
Figueroa Street, Los Angeles, California 90017-5556.
3720 GRISHAM v. PHILIP MORRIS U.S.A.
II. QUESTION OF LAW
By this order we certify to the California Supreme Court
for decision the dispositive2 questions of state law before us:
(1) Under California law, can a plaintiff overcome the pre-
sumed awareness that he or she knows that smoking
causes addiction and other health problems, and so show
justifiable reliance?3 (2) Under California law, if a plain-
2
We conclude that whether the plaintiffs’ lawsuits can proceed at this
juncture depends entirely upon the decision provided by the California
Supreme Court. If the presumption of knowledge of tobacco’s harms is not
rebuttable, then we conclude that we must now affirm the district court’s
dismissal of Cannata’s and Grisham’s complaints by judgment on the
pleadings. On the other hand, if the presumption is rebuttable, then Can-
nata and Grisham, who alleged lack of knowledge of harm of smoking,
should be permitted to continue their suits to a stage, such as summary
judgment proceedings or trial, where evidence will be considered, unless
defendants provide the district court with some other legal basis for con-
cluding the litigation. In any event, and accordingly, the decision of the
California Supreme Court on the certified question will “determine the
outcome of [this] matter pending in [the Ninth Circuit Court of Appeals],”
see Cal. Rules of Court 29.8(a)(1), for it will control our decision on this
appeal.
3
If the California Supreme Court grants review on the certified question
and gives its opinion, it may be helpful if the California Supreme Court
also addresses, if the presumption is rebuttable, what factual showing is
necessary to rebut the presumption. These appeals come before us follow-
ing district court decisions granting motions to dismiss on the pleadings,
even though Cannata and Grisham have alleged lack of knowledge of the
dangers of smoking. If the presumption identified in Soliman v. Philip
Morris, 311 F.3d 966 (9th Cir. 2002) is rebuttable under California law,
then we conclude that these cases should not have been dismissed at the
pleadings stage based on the Soliman presumption. It may be helpful for
ongoing proceedings on remand if the California Supreme Court indicates
what showing a plaintiff must make under California law to rebut the pre-
sumption of awareness that smoking causes addiction and other health
problems.
It may also be helpful for the court to address the effect of an admission
by a plaintiff that he or she is aware of an addiction to tobacco more than
a year before filing suit. Grisham alleges awareness of her addiction to
tobacco in 1993. If the presumption identified in Soliman is rebuttable, it
may be helpful for the court to address whether this awareness prevents
rebuttal of the presumption as a matter of law, such that reliance on defen-
dants’ representations would no longer be justifiable.
GRISHAM v. PHILIP MORRIS U.S.A. 3721
tiff seeks damages resulting from an addiction to tobacco,
does an action for personal injury accrue when the plain-
tiff recognizes that he or she is addicted to tobacco, if the
plaintiff has not yet been diagnosed with an injury stem-
ming from tobacco use? Our phrasing of the questions
should not restrict the California Supreme Court’s consider-
ation of the issues involved. We will accept the decision of
the California Supreme Court, which is the highest authority
on the interpretation of California law. Aceves v. Allstate Ins.
Co., 68 F.3d 1160, 1164 (9th Cir. 1995) (holding that the
Ninth Circuit is bound to follow the holdings of the California
Supreme Court when applying California law).
III. STATEMENT OF FACTS
These diversity cases arise from physical and monetary
injuries suffered by plaintiffs-appellants Maria Cannata and
Leslie Grisham as the alleged result of smoking cigarettes
manufactured and marketed by defendants-appellees Philip
Morris USA, Inc. and Brown & Williamson Tobacco Corpo-
ration. In both cases, plaintiffs alleged (1) negligence, (2)
strict liability, (3) false representation, (4) deceit/fraudulent
concealment, (5) unfair competition and business practices,
(6) negligent false and misleading advertizing, and (7) inten-
tional false and misleading advertising.4
We summarize the facts as pleaded in both cases.5 Both
plaintiffs began smoking as minors: Leslie Grisham began in
1962-63; Marie Cannata began sometime before 1969. Can-
nata Am. Compl. ¶ 39; Grisham Compl. ¶ 28. Cannata
4
Grisham also asserted claims for civil conspiracy and breach of express
warranty.
5
Because these appeals come to us from motions to dismiss, we assume
the truth of the facts presented in the complaints and we will affirm the
district courts’ dismissal on the pleadings “only if untimeliness is apparent
on the face of the liberally construed complaint.” Soliman, 311 F.3d at 971
& n.5.
3722 GRISHAM v. PHILIP MORRIS U.S.A.
believed, and was induced to start smoking by, the representa-
tions of the defendants that smoking did not cause emphy-
sema, lung problems, cardio-obstructive pulmonary disease,
or any other problems. Cannata Am. Compl. ¶¶ 40, 42.
Grisham states that she was induced to begin smoking by
defendants’ advertisements and promotional campaigns,
which she alleges concealed the true risks of smoking.
Grisham Compl. ¶ 28. Both plaintiffs allege that if they had
been aware of the health risks of smoking, and the addictive
nature of nicotine, as well the manipulation of nicotine levels
and the intentional targeting of youths by defendants, they
would not have begun smoking. Cannata Am. Compl. ¶ 43;
Grisham Compl. ¶ 34.
Both plaintiffs allege that they were personally unaware
that smoking was unhealthy and addictive because the defen-
dants’ ongoing conspiracy to defraud the public about the
risks of smoking created a medical and scientific controversy
as to whether or not cigarettes were truly harmful, and that
they believed the defendants’ side of this controversy. E.g.,
Cannata Am. Compl. ¶¶ 4, 28; Grisham Compl. ¶¶ 24, 34.
Cannata recently became aware that defendants’ representa-
tions related to the safety of smoking were false, but she could
not quit smoking because she was addicted. Cannata Am.
Compl. ¶¶ 41-43. Grisham, too, asserts that once she became
aware of the health risks associated with smoking, she could
not quit because of her addiction. Grisham Compl. ¶ 34. She
asserts that she unsuccessfully tried to overcome her “nicotine
addiction” in 1993, although at that time she had not yet been
diagnosed with any injury caused by her tobacco use. Id. at
¶¶ 31, 32, 35.
Cannata asserts that because she began smoking before the
availability of substantial public information about the nega-
tive effects of smoking, her reliance on the defendants’ mis-
representations was justified. Cannata Am. Compl. ¶ 42.
Grisham asserts that the defendants’ concealment of informa-
tion about the health risks of smoking lead to her physical
GRISHAM v. PHILIP MORRIS U.S.A. 3723
injuries. Grisham Compl. ¶ 78. Both plaintiffs allege that if
they had known of the health risks of smoking, the addictive
nature of nicotine, the intentional manipulation of nicotine
levels, and the targeting of minors, they would not have
started smoking, and that by the time they became aware of
these facts, they were addicted to cigarettes. Cannata Am.
Compl. ¶ 43; Grisham Compl. ¶¶ 34, 78. Defendants counter
that such reliance cannot be justifiable because, under Soli-
man v. Philip Morris, California law presumes a plaintiff’s
awareness that smoking causes addiction and other health
problems. 311 F.3d 966, 974 (9th Cir. 2002).
As a result of defendants’ allegedly wrongful conduct,
Maria Cannata is dying. Cannata Am. Compl. ¶ 44. She has
suffered and continues to suffer from permanent injuries,
including emphysema, shortness of breath, other lung dam-
age, and mental and emotional distress. Id. Grisham’s use of
tobacco has caused her to develop irreversible emphysema as
well as disfiguring periodontal disease, including tooth and
alveolar bone loss. Grisham Compl. ¶¶ 30-32. Both plaintiffs
have incurred monetary injuries from defendants’ wrongful
conduct, including liability for medical treatment, lost pre-
judgment interest, lost wages, and other pecuniary losses.
Cannata Am. Compl. ¶¶ 45-47; Grisham Compl. ¶¶ 37-39.
They pray for relief in the form of compensatory and punitive
damages, disgorgement of profits, and permanent injunctions
preventing the sale of harmful cigarettes, as well as the target-
ing of minors in cigarette advertising, and related relief. Can-
nata Am. Compl. ¶¶ 133-46; Grisham Compl. at 67-68, ¶¶ a-
n.
The district courts dismissed both complaints on the plead-
ings. The district court determined that Cannata’s claims were
time barred under California law because Cannata could not
toll the applicable statutes of limitations by alleging an ongo-
ing civil conspiracy.6 See Wyatt v. Union Mortgage Co., 24
6
The parties agree that Cannata’s claims are time barred if she cannot
toll the statutes of limitation by alleging an ongoing conspiracy.
3724 GRISHAM v. PHILIP MORRIS U.S.A.
Cal. 3d 773, 786 (1979) (holding that the statute of limitations
does not begin to run until the last overt act pursuant to the
conspiracy is completed). Specifically, Cannata could not
show an ongoing conspiracy to defraud because she could not
show the essential element of justifiable reliance. See Applied
Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 510-
11 (1994) (holding that there is no separate cause of action for
civil conspiracy, and that to establish such an action, a plain-
tiff must show some other underlying tort or civil wrong); see
also Chicago Title Ins. Co. v. Superior Court, 174 Cal. App.
3d 1142, 1151 (1985) (“Justifiable reliance is an essential ele-
ment of any cause of action for fraud and conspiracy to com-
mit fraud.”). The district court considered dispositive our
holding in Soliman, that “California law presumes a plaintiff’s
awareness that smoking causes addiction and other health
problems.” 311 F.3d 973-76.
The district court also considered Soliman dispositive in
Grisham’s case. The court held that Grisham’s claims were
time-barred because under Soliman, she was charged with
constructive knowledge of the risks of smoking. Further, the
court pointed to Grisham’s admission that she tried to over-
come her addiction in 1993 as evidence that she was aware of
her injury at that time. The court determined that Grisham’s
subsequent physical injuries stemmed from the same tortious
conduct that caused her addiction, and thus were also time-
barred. The court also found that Grisham’s allegations of
continuing wrong could not toll the statute of limitations
because the presumption of awareness established in Soliman
prevented a showing of justifiable reliance. Id.7
7
The district court dismissed without prejudice Grisham’s claims on
behalf of third parties under California Unfair Business Practices Act, Cal.
Bus. & Prof. Code §§ 17200 et seq.
GRISHAM v. PHILIP MORRIS U.S.A. 3725
IV. THE NEED FOR CERTIFICATION
A.
We turn to the first question that compels our certification
order: Under California law, can a plaintiff overcome the
presumed awareness that he or she knows that smoking
causes addiction and other health problems, and so show
justifiable reliance? We certify this question because we
conclude that there is no controlling precedent from the Cali-
fornia state courts, and because the answer given by the Cali-
fornia Supreme Court will be determinative of the appeal
pending before us. See Cal. Rules of Court 29.8(a)(1); id.
29.8(a)(2).
In Soliman, we dismissed as time-barred under California
law a complaint alleging product liability, negligence, breach
of warranty, fraud, misrepresentation, conspiracy, and inten-
tional infliction of emotional distress. 311 F.3d at 970, 974-
75. We held that the discovery rule did not postpone accrual
of Soliman’s claims so as to render his complaint timely
because Soliman had “reason at least to suspect a factual
basis” for his claims once he was injured by the defendants’
product. Id. at 971-72 (quoting and applying Norgart v.
Upjohn Co., 21 Cal. 4th 383, 398 (1999)). Soliman alleged
addiction as one of his distinct injuries and, without deciding
whether addiction might be a cognizable theory of recovery
under California law, we held that Soliman had constructive
knowledge under California law that smoking is addictive and
so he could not invoke the discovery rule based on the indus-
try’s alleged concealment. Id. at 972-75.8
8
We relied, in part, on the California legislature’s 1987 enactment of an
immunity statute that shielded tobacco manufacturers and retailers from
liability for commonly known risks of smoking, the Surgeon General’s
1988 conclusion that nicotine is addictive, and the Food and Drug Admin-
istration’s 1996 assertion of jurisdiction over tobacco products because of
their addictive effects. Id. at 973-74. With respect to the immunity statute,
we found it telling that in Naegele v. R.J. Reynolds Tobacco Co., 28 Cal.
4th 856, 866 (2002), the California Supreme Court implicitly determined
that the addictive nature of cigarettes was a generally understood danger
inherent in cigarette smoking. Soliman, 311 F.3d at 974.
3726 GRISHAM v. PHILIP MORRIS U.S.A.
Having determined that Soliman’s complaint was time-
barred under California law, we rejected Soliman’s attempt to
toll the applicable statutes of limitations on the unsuccessful
theory that defendants’ fraudulent concealment constituted a
“continuing wrong.” Id. at 975-76. We held that because Cali-
fornia law “presumes a plaintiff’s awareness that smoking
causes addiction and other health problems,” Soliman could
not show the necessary element of justifiable reliance, and so
could not state a continuing fraud claim. Id.
Although the California Supreme Court has not expressly
commented on our decision in Soliman, it is clear that after
Soliman, in the Ninth Circuit federal courts, a plaintiff is pre-
sumed under California law to be aware that smoking causes
addiction and other health problems. See infra n.13. Nonethe-
less, after our decision in Soliman was rendered, some later
decisions of the California state appellate courts have ren-
dered unclear to us the scope of Soliman’s rule as a statement
of California law.
In Whiteley v. Philip Morris Inc., 117 Cal. App. 4th 635,
677-692 (Cal. Ct. App. 2004), California’s intermediate
appellate court refused to overturn a jury verdict finding lia-
bility for fraud based on the defendants’ contention that the
plaintiff’s reliance was unreasonable. The Whiteley court first
held that there was substantial evidence presented to the jury
that the cigarette defendants “engaged in a deliberate scheme
to deceive the public, individual smokers and potential smok-
ers (including children and adolescents) about the health
effects of smoking” and that the plaintiff heard the false assur-
ances and denials of the cigarette defendants “and was led to
believe, as defendants intended, that smoking cigarettes was
‘safe’ and that it did not cause cancer or other health risks.”
Id. at 678-82.
The Whiteley court next rejected defendants’ contention
that Whiteley’s reliance was unreasonable because she was
made aware of the hazards of smoking from Surgeon Gener-
GRISHAM v. PHILIP MORRIS U.S.A. 3727
al’s warnings, doctors, relatives, and friends. Id. at 682. The
court thought it important that Whiteley’s deposition testi-
mony had indicated that she did not notice package warnings
when she began smoking or while she continued smoking,
and that despite warnings, Whiteley believed the cigarette
defendants’ insistence that the health case against smoking
had not been proved. Id. at 682-83.9 The court held that, as a
matter of law, it could not conclude that Whiteley’s reliance
on assurances from the defendants was unjustified, because
that question turned on whether “the conduct of the plaintiff
in the light of [her] own intelligence and information was
manifestly unreasonable,” and Whiteley’s circumstances10
supported her claim that she trusted the defendant tobacco
companies that made the cigarettes when they said that smok-
ing was safe. Id. at 684 (quoting Seeger v. Odell, 18 Cal. 2d
409, 414 (1941)).
Whiteley likewise rejected defendants’ argument that the
plaintiff was unable to show justifiable reliance because the
health risks of smoking are commonly known. Id. at 684-692.
Disagreeing with our decision in Soliman, the California
intermediate appellate court opined that a common-
knowledge defense to fraud claims is a question of fact for the
jury to decide. Id. at 686, 691-92.11 By upholding the jury’s
9
The court permitted the jury to consider and credit testimony of plain-
tiff’s expert witness, who suggested that it was reasonable to assume that
Whiteley had not seen the warning labels because teenagers generally
ignore fine print and because “smoking is so habituated a routine that one
. . . doesn’t even need to look at the pack while handling it and getting a
cigarette.” Id. at 683.
10
Among the pertinent circumstances were Whiteley’s lack of sophisti-
cation, her addiction to cigarettes, and related facts set forth in her deposi-
tion testimony.
11
The Whiteley court held that the defendants “waived any claim based
upon the asserted ‘common knowledge’ of the health hazards of smoking
by failing to raise it in the trial court.” Id. at 688. Moreover, the court dis-
tinguished Soliman as based on different evidence, in a different context,
i.e. in a motion to dismiss on the pleadings because of the statutes of limi-
tation. Id. at 690-92.
3728 GRISHAM v. PHILIP MORRIS U.S.A.
finding of justified reliance, Whiteley raises new questions
concerning tobacco litigation under California law. Perhaps
implicit in Whiteley’s holding is the notion that a plaintiff may
be able to overcome the presumption of awareness that smok-
ing causes addiction and other health problems by presenting
evidence to the trier of fact.
While federal district court decisions have routinely relied
on our decision in Soliman to dismiss tobacco lawsuits with
claims similar to those made by Cannata and Grisham,12 Cali-
fornia state courts in at least one other case have just as
clearly upheld jury findings of fraud in tobacco litigation in
accord with Whiteley. In Henley v. Philip Morris USA, Inc.,
9 Cal. Rptr. 3d 29 (Cal. Ct. App. 2004), review granted by 88
P.3d 497 (Cal. 2004), review dismissed by 97 P.3d 814 (Cal.
2004), stay granted by 125 S. Ct. 376 (2004), the California
intermediate appellate court sustained a jury verdict against a
cigarette manufacturer holding that the plaintiff presented
adequate evidence showing actual and reasonable reliance on
the defendant’s misrepresentations. Id. at 62-64. The court
held that the jury was entitled to credit the plaintiff’s testi-
mony that while she was aware of the Surgeon General’s
warnings, she chose to believe the contrary statements of the
tobacco companies. Id. at 63 (“The jury was entitled to find
that by [the time warnings were placed on cigarette packs], in
her addicted state, plaintiff was easy prey for defendant’s dis-
information campaign and readily clutched at the industry’s
caricature of objective inquiry.”).
12
See, e.g., Pooshs v. Altria Group, Inc., 331 F. Supp. 2d 1089, 1092-97
(N.D. Cal. 2004); Norris v. R.J. Reynolds, 2004 WL 601653 (C.D. Cal.
2004) (unpublished disposition); Simpson v. Philip Morris, Inc., 2003 WL
23341207 (C.D. Cal. 2004) (unpublished disposition); Lee v. Philip Mor-
ris, Inc., 2003 WL 23341206 (N.D. Cal. 2004) (unpublished disposition);
Taylor v. Philip Morris, Inc., 2003 WL 22416693 (N.D. Cal. 2003)
(unpublished disposition); Jacobs v. Philip Morris, Inc., 2003 WL
23342334 (C.D. Cal. 2003) (unpublished disposition); Baker v. Philip
Morris, Inc., 2003 WL 23341210 (S.D. Cal. 2003) (unpublished disposi-
tion); Harshbarger v. Philip Morris, Inc., 2003 WL 23342396 (N.D. Cal.
2003) (unpublished disposition).
GRISHAM v. PHILIP MORRIS U.S.A. 3729
Our holdings in Soliman bind us, Norita v. N. Mariana
Islands, 331 F.3d 690, 696 (9th Cir. 2003), but at the same
time we do not wish to ignore the intervening decisions of
California’s intermediate appellate courts. See Kona Enters.,
Inc. v. Estate of Bishop, 229 F.3d 877, 884 n.7 (9th Cir.
2000). The two lines of tobacco precedent in federal and state
court may suggest that California law presumes a general
public awareness of the risks of smoking, but that an individ-
ual plaintiff, in an appropriate case, can overcome this pre-
sumption and receive a jury determination on whether the
individual plaintiff’s reliance on cigarette manufacturers’ mis-
representations was justifiable, i.e., whether the individual
plaintiff was unaware of the health risks of smoking such that
the plaintiff’s reliance was justified. However, no decision of
the California Supreme Court or the California intermediate
appellate courts has squarely held that a plaintiff can over-
come the presumption that a plaintiff smoker is aware of the
dangers of smoking, and so we certify this question to the
California Supreme Court. See Cal. Rules of Court 29.8(a)(2).13
As we have explained, supra note 2, the California
Supreme Court’s resolution of the question that we have certi-
fied will necessarily determine the outcome of these pending
appeals. See Cal. Rules of Court 29.8(a)(1). If the California
Supreme Court decides that, under California law, a plaintiff
cannot overcome the presumed awareness that smoking
causes addiction and other health problems, and so show justi-
fiable reliance on cigarette manufacturers’ fraud, we will
affirm the dismissal of both of the plaintiffs’ complaints by
the district court. Conversely, if the California Supreme Court
holds that, under California law, a plaintiff can rebut the pre-
sumption of awareness that smoking causes addiction and
health problems, we will reverse the district court’s dismissal
13
A decision from the California Supreme Court on this question will
help harmonize federal and state law in tobacco litigation. See Cal. Rules
of Court 29.8(f)(1).
3730 GRISHAM v. PHILIP MORRIS U.S.A.
of these cases and remand them for further proceedings con-
sistent with the decision of the California Supreme Court.
B.
We certify an additional question to the California Supreme
Court: Under California law, if a plaintiff seeks damages
resulting from an addiction to tobacco, does an action for
personal injury accrue when the plaintiff recognizes that
he or she is addicted to tobacco, if the plaintiff has not yet
been diagnosed with an injury stemming from tobacco
use? We certify this question because we conclude that there
is no controlling precedent from the California state courts,
and because the answer given by the California Supreme
Court may be determinative of Grisham’s appeal pending
before us. See Cal. Rules of Court 29.8(a)(1); id. 29.8(a)(2).
In Soliman, we held that because the plaintiff was charged
with awareness of the addictive nature of tobacco, the statute
of limitations on his claim against defendant tobacco manu-
facturers began to run not when he was first diagnosed with
injuries stemming from his tobacco use, but “when he should
have known of any significant injury from defendant’s wrong-
ful conduct[.]” 311 F.3d at 972 (emphasis in original).
Although Soliman’s complaint was filed within a year of his
diagnosis with dyspnea and orthopnea, we held that because
Soliman alleged addiction as a distinct injury, his cause of
action accrued when he should have known that he was
addicted. Id.
Decisions of the California appellate courts subsequent to
Soliman have also rendered unclear the scope of Soliman’s
holding regarding the accrual of personal injury claims in
cases involving tobacco addiction. In Henley, the intermediate
appellate court stated that the jury was entitled to find that the
plaintiff had become addicted to cigarettes well before 1988
with “sharply impaired judgment and will.” 9 Cal. Rptr. at 40.
The court noted that in deposition testimony, the plaintiff
GRISHAM v. PHILIP MORRIS U.S.A. 3731
responded affirmatively to a question that she had heard of the
health risks associated with smoking and did not want to
believe them. Id. at 65. The court stated that this testimony
did not render the evidence insufficient to support a jury ver-
dict on fraudulent concealment. Id.
In Whiteley, the appellate court held that sufficient evi-
dence supported a finding that the plaintiff’s addiction to cig-
arettes rendered her susceptible to believing the cigarette
manufacturers’ statement. 117 Cal. App. 4th at 680. Whiteley
appears to have recognized that she was unable to quit smok-
ing; she testified that when she tried to stop smoking she
experienced severe withdrawal, became dizzy, could not con-
centrate, and craved cigarettes. Id. at 644. Neither Henley nor
Whiteley address specifically the statute of limitations, but
neither case indicates that awareness of addiction more than
a year before filing suit would render an otherwise timely per-
sonal injury claim untimely, thereby casting new light on the
presumption in Soliman that awareness of addiction com-
mences the running of the statute of limitations.
The presiding district court in Grisham’s case applied Soli-
man to the facts of the case before it. Grisham’s pleadings
stated that she tried to overcome her addiction in 1993.
Because Grisham sought compensation for damages stem-
ming from her addiction, the court held that her recognition
of addiction in 1993 rendered her complaint untimely,
although she had not been diagnosed with any physical inju-
ries stemming from her tobacco addiction until 2001. If
Grisham’s reliance on defendants’ alleged misrepresentations
is justifiable under California law, her suit would still be
untimely if all of her causes of action accrued at the moment
she realized that she was addicted to tobacco.
It is unclear whether the plaintiffs in Henley or Whiteley
sought relief on the basis of their addictions, as does Grisham.
Grisham Compl. ¶ 160 (stating that plaintiff was induced to
spend unknown sums of money on cigarettes as a result of
3732 GRISHAM v. PHILIP MORRIS U.S.A.
addiction). It is clear that in both Henley and Whiteley, appel-
late courts found that sufficient evidence had been presented
for the juries to conclude that the plaintiffs had been addicted
to cigarettes for many years. Henley, 9 Cal. Rptr. at 40;
Whiteley; 117 Cal. App. 4th at 680. Both appellate courts
found that the long-term nature of the plaintiffs’ addictions
supported their claims for relief, because in their addicted
states, plaintiffs were more willing to believe information pro-
vided by cigarette manufacturers. Henley, 9 Cal. Rptr. at 63;
Whiteley, 117 Cal. App. 4th at 679. In light of these holdings,
it is not apparent to us whether Grisham’s recognition of her
addiction would constitute the accrual of all of her causes of
action against the defendants. It may be that under California
law, Grisham’s claims for damages for addiction are
untimely, while her claims for physical injury could proceed
as in Henley and Whiteley. No decision of the California
Supreme Court or appellate courts has held squarely what
effect the acknowledgment of an addiction has on the accrual
of a personal injury action in the context of tobacco litigation,
so we certify this question to the California Supreme Court.
See Cal. Rules of Court 29.8(a)(2).14
The California Supreme Court’s resolution of the question
that we have certified will necessarily determine the outcome
of Grisham’s pending appeal. See Cal. Rules of Court
29.8(a)(1). If the California Supreme Court decides that,
under California law, a claim seeking damages caused by
addiction accrues when a plaintiff recognizes that he or she is
addicted, regardless of whether the plaintiff has been diag-
nosed with any illnesses at that time, we will affirm the dis-
trict court’s dismissal of Grisham’s complaint. Conversely, if
the California Supreme Court holds that the causes of action
do not accrue at the moment a plaintiff acknowledges his or
her addiction, we will reverse the district court’s dismissal of
14
A decision from the California Supreme Court on this question will
help harmonize federal and state law in tobacco litigation. See Cal. Rules
of Court 29.8(f)(1).
GRISHAM v. PHILIP MORRIS U.S.A. 3733
these cases and remand them for further proceedings consis-
tent with the decision of the California Supreme Court.
V. ACCOMPANYING MATERIALS
The clerk of this court is hereby directed to file in the Cali-
fornia Supreme Court, under official seal of the United States
Court of Appeals for the Ninth Circuit, copies of all relevant
briefs and excerpts of record, and an original and ten copies
of this request with a certificate of service on the parties, pur-
suant to California Rules of Court 29.8(b)(1), (c), (d).
Further proceedings before us are stayed pending the Cali-
fornia Supreme Court’s decision whether it will accept
review, and if so, our receipt in due course of the decision to
the certified questions of California law. These cases are with-
drawn from submission until further order from this Court.
The panel will resume control and jurisdiction of these cases
upon receiving a decision from the California Supreme Court
or upon that court’s decision to decline to answer the certified
questions. The parties shall file a joint report informing this
Court of whether the California Supreme Court will decide
the certified questions, after that decision is made. If the Cali-
fornia Supreme Court accepts the certified questions, the par-
ties shall file a joint status report to our Court every six
months after the date of acceptance, or more frequently if cir-
cumstances warrant. IT IS SO ORDERED.
Respectfully submitted, Jerome Farris and Dorothy W. Nel-
son, Senior Circuit Judges, and Ronald M. Gould, Circuit
Judge.
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