Litigation

Cal Supremes Hear Argument On Choice of Law In Toxic Tort Case

By Bruce Nye

    The plaintiff is exposed to a toxic product way back in the 1950's in Oklahoma, where he is then living. Many toxic exposures cause disease (if at all) only many years later.  And so, fifty years after the exposure, and after he has moved to California, the plaintiff is diagnosed with a disease allegedly caused by the exposure.  Under Oklahoma's statute of repose, his case is time-barred.  Under California's delayed accrual statute of limitations for asbestos-related cases, he has lots of time.  Which law applies?

    In McCann v. Foster Wheeler, Superior Court of Los Angeles County; BC336869, the trial court ruled that Oklahoma law governed and the case was time barred.  The Court of Appeal reversed based on choice of law principles.  The decision, which you can read here, is now not citeable as authority because . . . . the Cal Supremes granted a hearing.  Which they held on Friday.  The Supremes summarized the issue as follows:

This case presents the following issue: Where plaintiff?s exposure to asbestos in Oklahoma in 1957 (when plaintiff was a resident of Oklahoma) assertedly led to plaintiff?s developing mesothelioma in 2005 (when plaintiff was a resident of California), is the timeliness of plaintiff?s action against defendant (a company that designed and manufactured the boiler upon which the asbestos was being installed in Oklahoma) properly governed by Oklahoma or California law?

    I've often thought Cal Supremes oral argument in this state was akin to a press conference for the outcome, but according to Legal Pad, this one was hard to call.  Justice Corrigan, one of the court's more conservative justices, was quoted by Legal Pad as raising "the specter of California becoming a 'litigation magnet' if people figure out they could move to the Golden State and sue for injuries that might have actually occurred decades ago." 

    On the other hand, Justices Werdegar and Kennard seemed to want to give the plaintiff some relief under Code of Civil Procedure section 361, California's "borrowing statute." While the Court of Appeal had ruled in plaintiff's favor, it had also held that section 361 was of no help.

    We should know the outcome in sixty days.

Full post as published by CalBizLit on January 11, 2010 (boomark / email).