Miller v. Lakeside Village Condominium Assn.

JOHNSON, J.

I concur in the judgment because the facts of this case do not compel application of the landmark decision in Martinez-Ferrer v. Richardson-Merrell, Inc. (1980) 105 Cal.App.3d 316 [ 164 Cal.Rptr. 591 ]. I write separately, however, to register my disagreement with the majority’s treatment of the important rule and supporting rationale enunciated in that decision. Unlike the majority, I do not adopt the DeRose (DeRose v. Carswell (1987) 196 Cal.App.3d 1011,1024 [ 242 Cal.Rptr. 368 ]) court’s characterization of the decision as a “too restrictive” application of the Supreme Court’s decision in Davies v. Krasna (1975) 14 Cal.3d 502 [ 121 Cal.Rptr. 705 , 535 P.2d 1161 , 79 A.L.R.3d 807 ] (reiterating the rule the statute of limitations commences running when a plaintiff suffers actual and appreciable harm). Instead, I read Martinez-Ferrer as embodying a distinct rule. Under appropriate circumstances the occurrence of some actual and appreciable harm will not foreclose a later suit for a serious physically distinct injury which first manifests itself after the limitations period has expired as to the initial harm.

Martinez-Ferrer highlighted the problem of plaintiffs who experience symptoms of “actual and appreciable” harm early on but much later suffer a different type of harm, quantitatively and qualitatively, as a result of the initial tortious act. Historically, of course, the law would have barred such plaintiffs from bringing suit for the later, more serious injury because the cause of action accrued upon the act or omission that caused the legal harm whether or not there were manifestations of injury. (See generally, Developments in the Law—Statutes of Limitations (1950) 63 Harv. L. Rev. 1177 .) This harsh rule was later tempered by the adoption of the discovery rule under which a cause of action was held not to have accrued until the plaintiff knew or reasonably should have known of the injury and its cause. (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176,186-190 [ 98 Cal.Rptr. 837 , 491 P.2d 421 ].) The rules for determining when a cause of action accrued were further liberalized by the Supreme Court’s decision in Budd v. Nixen (1971) 6 Cal.3d 195, 200 [ 98 Cal.Rptr. 849 , 491 P.2d 433 ], which held the limitations period does not begin until a plaintiff has suffered “actual and appreciable harm.”

It is true the discovery doctrine led to more just and equitable results in that a plaintiff was not precluded by the bar of the statute of limitations from *1631 seeking recovery until there was actual evidence of injury from a tortious act or omission which may have occurred years before. This doctrine was inadequate, however, to prevent the inequities that arose in situations where exposure to deadly toxic substances caused not only immediate injuries but latent or progressive diseases which did not manifest themselves until possibly decades later. Rigid application of the discovery doctrine meant plaintiffs who had some early minor symptoms of harm were barred from bringing suit for a later developed, related, but qualitatively and quantitatively different, illness.

Martinez-Ferrer recognized principles of res judicata should not bar suit for the later more serious injury in these circumstances. The Martinez-Ferrer court found the general rules of merger and bar should not apply where “the policies favoring preclusion of a second action are overcome for an extraordinary reason. . . .” or “[t]he judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme. . . .” (Martinez-Ferrer v. Richardson-Merrell, Inc., supra, 105 Cal.App.3d at p. 327 , internal quotation marks deleted, italics added.)

The policies underlying the doctrine of res judicata and the prevention of claim splitting include judicial economy and concern about the quality of evidence available at trial. (Davies v. Krasna, supra, 14 Cal.3d at p. 512 [“The fundamental purpose of such statutes is to protect potential defendants by affording them an opportunity to gather evidence while facts are still fresh.”]; Elkins v. Derby (1974) 12 Cal.3d 410, 417 [ 115 Cal. Rptr. 641 , 525 P.2d 81 , 71 A.L.R.3d 839 ] [purpose of statutes is to prevent “ ‘surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.’ ” (Citing Telegraphers v. Ry. Express Agency (1944) 321 U.S. 342, 348-349 [ 88 L.Ed. 788, 792-793 , 64 S.Ct. 582 ].)]; Pashley v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 226, 229 [ 153 P.2d 325 ] [“The underlying purpose of statutes of limitation is to prevent the unexpected enforcement of stale claims concerning which persons interested have been thrown off their guard by want of prosecution.”].)

These same concerns support allowing independent suits for the different injuries as well. First, considerations of judicial economy in these circumstances weigh in favor of recognizing separate causes of action. Allowing suit on the later developed, serious injury avoids forcing a plaintiff to make speculative claims early on as a means to escape the bar of the statute of limitations. Recognizing a separate accrual period for the separate injury when and if it occurs will prevent courts from being burdened with suits *1632 involving relatively minor injuries filed to avoid the bar of the statute of limitations should more serious injuries develop. It would also discourage the filing of premature or questionable claims. It would be more efficient, and society would be better served, if judicial resources were reserved for lawsuits which seek compensation for the more serious, yet physically distinct, harm when and if it materializes.

Secondly, where a plaintiff is forced to bring suit at the first indication of “appreciable” harm, claims for a possible eventual disease will not be based on actual evidence of injury but on speculation or evidence of probabilities only. It is possible immediate accrual of all contingent claims would better serve defendants’ interests in repose. However, evidentiary concerns of the existence of a prospective disease, its proximate cause and resulting damage, are better served by presentation of actual evidence which has developed over time. Plaintiffs will have a better chance of securing fair and accurate compensation for an existing harm when the injury has manifested itself and when medical certainty can replace speculation.

Thirdly, allowing suit on a later developed, different and more serious injury, eliminates the risk of defendants overcompensating a plaintiff who does not in fact develop future problems or undercompensating those plaintiffs who do. Allowing suit for an actual injury based on current and reliable evidence prevents the inequity of giving a windfall to some plaintiffs and undercompensating others.

Many decades elapsed before society became aware of the dangers of asbestos and other toxic chemical substances in our environment. With new sciences and scientific discoveries continually placing heretofore unknown substances on the market, and with the constant introduction of new drugs, synthetics and biologically altered plants and animals, we may be largely ignorant of all the ramifications of our technologically advanced society. Preservation and amplification of the Martinez-Ferrer doctrine is needed to protect those individuals presently or in the future who belatedly discover exposure to a new drug, solvent or structural material caused not only the initial “actual and appreciable” yet only modest illness or injury, but also the present deadly cancer or respiratory failure or similar insidious injury which was far more serious and physically distinct from the initial manifestations of the exposure.

Under Martinez-Ferrer these plaintiffs’ claims will accrue upon discovery of the later developed and different disease if and when it occurs as a result of the initial injury. Treating the different injuries separately for purposes of accrual of the cause of action is the only just and equitable method to *1633 compensate victims of latent, progressive or presently unknown diseases. It protects plaintiffs who suffer progressive diseases that take years to develop after the initial exposure to a toxic substance. It also preserves a cause of action for those plaintiffs, who because of the new drug, substance or technology, are unaware the initial symptoms could also mean a risk of a much more deadly and dangerous disease in the future.

The rationale exemplified in Martinez-Ferrer preserves these plaintiffs’ interests, and establishes an equitable method to deal with the unknown consequences of today’s technological advances. The decision is significant in California jurisprudence and has been recognized or adopted in numerous other jurisdictions as well. (Associated Indem. Corp. v. Indus. Acc. Com. (1932) 124 Cal.App. 378 [ 12 P.2d 1075 ] [despite early symptoms years before filing suit, worker’s claim did not accrue until injury progressed to silicosis]; Urie v. Thompson (1949) 337 U.S. 163 [ 93 L.Ed. 1282 , 69 S.Ct. 1018 , 11 A.L.R.2d 252 ] [same]; Zambrano v. Dorough (1986) 179 Cal.App.3d 169 [ 224 Cal.Rptr. 323 ] [cause of action did not accrue as to later injury because loss of reproductive capacity was qualitatively of a different type of injury than that initially accompanying the misdiagnosis]; Wilson v. Johns-Manville Sales Corp. (D.C.Cir. 1982) 684 F.2d 111 [ 221 App.D.C. 337 ] [mild asbestosis did not start limitations period running in 1973 for separate and distinct disease of mesothelioma first manifested in 1978]; Pierce v. Johns-Manville Sales Corp. (1983) 296 Md. 656 [ 464 A.2d 1020 ] [in same factual situation, held policy considerations weighed in favor of recognizing separate causes of action lest plaintiff be compelled to rush to court with questionably meritorious claims rather than risk losing all claims for future serious injury]; Goodman v. Mead Johnson & Co. (3d Cir. 1976) 534 F.2d 566 [plaintiff’s cause of action for cancer did not accrue simultaneously with manifestations of thrombophlebitis although both caused by defendant’s contraceptive device]; Anderson v. W.R. Grace & Co. (D.Mass. 1986) 628 F.Supp. 1219 [in suit for injuries caused by contaminated water well, causes of action for increased risk of leukemia and other cancers not yet accrued because qualitatively different from present injuries]; Gore v. Daniel O’Connell’s Sons, Inc. (1984) 17 Mass.App. 645 [ 461 N.E.2d 256, 259 ] [“Not only does it offend fairness to require of claimants the gift of prophecy, [citation] but it is unsound judicial policy to encourage the initiation of lawsuits in anticipation that a grave disease will manifest itself pendente lite.”].)

The facts of this case, however, do not compel a finding the cause of action for Miller’s later developed immune dysregulation was so qualitatively or quantitatively different from the initial symptoms of asthma and allergies as to be treated as a different injury for purposes of accrual of a *1634 separate cause of action. Mold in the condominium was the cause of all the symptoms. The later developed immune dysregulation was a result of infection caused by prolonged exposure to the mold of which Miller’s symptoms of asthma and allergies were early manifestations. When a later developed disease is the natural and probable consequence of failure to treat the initial symptoms of the same disease, the two diseases are not sufficiently physically distinct and Martinez-Ferrer does not apply.

Because I conclude Martinez-Ferrer does not apply on the facts of this case, I concur in the judgment.