This article discusses the recent split of authority that arose in California from a Court of Appeal decision, Lopez v. Sony Electronics Inc., issued in May of 2016 regarding whether prebirth toxic exposure claims are governed by a six- or 20-year limitations period. Specifically, this article discusses:
- The two statutes of limitation that potentially apply to prebirth toxic exposure claims;
- The two published Court of Appeal decisions that analyzed which statute should apply; and
- The best arguments defendants can make to persuade trial courts to apply the shorter limitations period.
The Court of Appeal (Sixth District) first addressed this issue in 2014, holding that prebirth toxic exposure claims were subject to the two-year limitations period set forth in Code of Civil Procedure section 340.8 (Section 340.8), which applies to “any civil action for injury or illness based upon exposure to a hazardous material or toxic substance. ...” Nguyen v. Western Digital Corp., 229 Cal. App. 4th 1522 (2014). Because Section 340.8 is tolled during minority (until the plaintiff becomes eighteen years old), these claims effectively carry a minimum 20-year limitations period under Nguyen. In May of 2016, a different district in the Court of Appeal (Second District) held that such claims were subject to the six-year limitations period set forth in Code of Civil Procedure section 340.4 (Section 340.4), which is not subject to minority tolling and applies to actions “by or on behalf of a minor for personal injuries sustained before or in the course of his or her birth. ...” Lopez v. Sony Electronics Inc., 247 Cal. App. 4th 444 (2016).
California companies should take note of this issue because Section 340.8 applies not only to chemical exposure claims, but also claims arising from prescription drug use. Nelson v. Indevus Pharmaceuticals Inc., 142 Cal. App. 4th 1202, 1208-10 (2006). Thus, any prebirth or birth injury allegedly caused by the mother’s use of prescription drugs during pregnancy, or the mother’s exposure to toxic chemicals during pregnancy, could potentially be brought 20 years after the fact.
To avoid the substantial burdens imposed by defending against decades-old claims, defendants should be prepared to persuade trial courts to follow Lopez and apply the six-year limitations period of Section 340.4. To successfully advance this argument, defendants must understand the history of the two statutes — Sections 340.4 and 340.8 — and the pertinent rules of statutory interpretation.
Section 340.4 is the successor to former Civil Code Section 29. Civil Code Section 29, enacted in 1872, created a statutory cause of action for prenatal injuries. It did not provide any single limitations period for prenatal injury claims. Instead, the applicable limitations periods were provided by other statutes depending on the nature of the claim.
In 1939, the Court of Appeal suggested in dictum that a prenatal injury action could be tolled during the plaintiff’s minority. Troubled by the burdens that would be imposed on defendants by minority tolling of prenatal claims, the Legislature amended Civil Code section 29 in 1941 to incorporate a six-year limitations period, and to establish that prenatal injuries were not subject to minority tolling. The Legislature later moved the six-year limitations period of Civil Code section 29 to Section 340.4 without substantive change. Accordingly, since 1941, the statute of limitations for prenatal injuries has been six years from discovery of facts giving rise to a claim.
In 2004, 63 years after the Legislature established a six-year limitations period for prenatal injury claims, the Legislature enacted Section 340.8. It does not refer to Section 340.4 or prebirth injuries. Its legislative history, which does not mention Section 340.4 or minority tolling, reveals that the Legislature passed Section 340.8 to codify the delayed discovery rule in cases alleging toxic exposure injuries.
Reasons Why Section 340.4 Sets Forth the Correct Limitations Period
As with any question of statutory interpretation, the cardinal rule is to ascertain and give effect to the Legislature’s intent. To do this, courts first look to the statutory language itself, giving the language its plain and ordinary meaning. If the language is clear and unambiguous, it controls. But where courts are asked to interpret two ostensibly inconsistent statutes to determine which applies on particular facts, courts must harmonize the law and avoid an interpretation that requires one statute to be ignored.
Here, the statutory language alone does not resolve the question because both statutes on their face apply to prebirth toxic exposure claims. Thus, courts must determine whether the Legislature intended to supplant Section 340.4 when it enacted Section 340.8.
California courts “do not presume that the Legislature intends, when it enacts a statute, to overthrow long-established principles of law unless such intention is clearly expressed or necessarily implied.” People v. Superior Court (Zamudio), 23 Cal. 4th 183, 199 (2000) (citation omitted). Where the Legislature “d[oes] not address the potential conflict between” two statutes of limitation, it intends the preexisting statute to remain “in full force and effect.” Anson v. County of Merced, 202 Cal. App. 3d 1195, 1202 (1988). This is consistent with the well-established principle that, “[i]n the absence of express statutory provision, courts will not find an implied abrogation of long-established principles.” Williams v. Los Angeles Metropolitan Transit Authority, 68 Cal. 2d 599, 603 (1968).
Because the Legislature did not expressly indicate its intent to supplant Section 340.4 in enacting Section 340.8, Section 340.4 should remain in full force and effect, and trial courts should apply its six-year limitations period to prebirth toxic exposure claims. In the words of the Lopez court:
When [S]ection 340.8 was enacted in 2004, the six-year limitations period for prenatal injuries had been in existence for six decades, along with the corresponding provision that [minority] tolling ... did not apply to extend the limitations period for actions alleging birth or prebirth injuries. The timeworn principles of statutory interpretation ... simply do not support the conclusion that the Legislature intended to overthrow that long-standing law, without expressly saying so, and having expressed an entirely different purpose for enacting [S]ection 340.8. 247 Cal. App. 4th at 453 (citation omitted).
Moreover, applying Section 340.4’s shorter limitations period to prebirth toxic exposure claims is consistent with the policy rationale underlying statutes of limitation in general — to protect defendants from stale claims after memories have faded, witnesses have disappeared, or evidence has been lost.
By presenting the arguments summarized herein, defendants can position themselves to reduce their potential period of exposure.
Published by Appellate Law360, California Law360, and Product Liability Law360