Grisham v. Philip Morris U.S.A.

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are withdrawn from submission until further notice from this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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