PETERSON v. OWENS CORNING FIBERGLAS CORPORATION

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Court of Appeal, First District, Division 3, California.

David PETERSON et al., Plaintiffs and Respondents, v. OWENS–CORNING FIBERGLAS CORPORATION, Defendant and Appellant.

No. A065358.

Decided: March 19, 1996

Eileen Claire Lorimore, Law Offices of Eileen C. Lorimore, Los Gatos, Tilly & Graves, P.C., San Francisco, for defendant and appellant. Christopher E. Grell, Law Office of Christopher E. Grell, San Francisco, Daniel U. Smith, Kentfield, for plaintiffs and respondents.

Proposition 51 became effective June 4, 1986, eliminating joint and several liability for noneconomic damages in comparative fault situations.   Thereafter, joint tortfeasors are liable only for the amount of such damages proportionate to their determined degree of fault.   In Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1193–1194, 246 Cal.Rptr. 629, 753 P.2d 585 (Evangelatos ), the Supreme Court ruled Proposition 51 does not apply to causes of action accruing before its effective date.   In this case, we must decide how the new law operates in the context of a latent disease.   The issue is when a cause of action for a latent disease can be said to have accrued.

We hold that, for purposes of Proposition 51, an action accrues when the plaintiff undergoes a physiological change that, to a reasonable degree of medical certainty, caused the condition giving rise to the claim.   Here, the trial court used a different test, holding the cause of action accrued on the date of plaintiff's exposure to asbestos, rather than the date upon which that exposure caused injury.   Accordingly, we reverse and remand for the limited purpose of determining whether Proposition 51 applies upon application of the correct test.

Background

Owens–Corning Fiberglas Corporation (OCF) appeals from a judgment awarding David Peterson $1,206,261 for injuries caused by exposure to asbestos products.   The only issue on appeal is whether Proposition 51 applies.1

The Petersons sued a number of asbestos manufacturers.   All but OCF settled before trial.   Before the taking of testimony, OCF moved for a determination that Proposition 51's preclusion of joint and several liability for noneconomic damages would apply.   The court denied the motion.   It reasoned that the triggering date for the Proposition 51 limitation was the date of exposure to asbestos in OCF's products.   The court explained it would reverse its ruling if the evidence were to establish any post-Proposition 51 exposure.

Evidence established that plaintiff was exposed to asbestos during his service in the United States Coast Guard from 1962 to 1982.   A former OCF employee testified he packed various types of OCF asbestos insulation on a ship named the Ivy in 1959 or 1960, and again in 1961 or 1962.   Plaintiff worked on the Ivy as a fireman apprentice in 1962 through 1963.   He testified that he worked around asbestos “all the time” on the Ivy, performing a number of tasks that brought him into direct contact with the substance.

A naval shipyard employee testified he installed asbestos insulation on the ship Glacier during the mid–1960's.   He estimated that OCF supplied about 25 percent of that insulation.   Plaintiff was an engineer on the ship in 1968 and 1969.   He testified that he was exposed to asbestos when overhauling the ship's engines and repairing torn insulation.   He also handled asbestos brick on the Glacier.   Plaintiff came into contact with asbestos insulation on four other ships but could not show that OCF had supplied those products.

Plaintiff had no asbestos exposure after 1982.   In 1989 or 1990, he developed diabetes and vision problems and began having breathing difficulty while on disability leave for those conditions.   Exploratory surgery performed in June 1991 revealed asbestosis.   In late 1992, his doctor began to suspect pleural mesothelioma, a cancer of the lining of the lung cavity.   Malignant mesothelioma was diagnosed in October 1993.

Plaintiff's epidemiology expert testified that the cellular changes that inevitably lead to mesothelioma take place approximately 10 to 15 years before the disease first becomes diagnosable.   Plaintiff's expert pathologist acknowledged that there can be great variation in biologic behavior between one mesothelioma and another, and that nobody could say “exactly and at what time the tumor began and what exact asbestos caused the tumor to occur.”   He explained that the cell growth rate of mesothelioma cells is much less well understood than the growth rate of lung cancer cells.   It was uncontested, however, that once the cellular changes occur, the development of mesothelioma is inevitable and irreversible.   OCF stipulated that plaintiff's mesothelioma was caused by “the totality of his asbestos exposure.”

At the end of trial, the court noted that OCF had produced no witnesses on its Proposition 51 defense.   However, the parties and the trial court recognized that Proposition 51's application would probably be an appellate issue.   Therefore, plaintiff's counsel submitted, and the trial court approved, a special verdict form asking the jury to specify plaintiff's damages as economic or noneconomic and to apportion the cause of his injury between OCF and “All others.”   The jury awarded plaintiff $706,261 in economic damages and $500,000 in noneconomic damages.   It found OCF responsible for 40 percent of plaintiff's injury.

Discussion

I. The Trial Court Erred in Applying an Exposure Test

The trial court ruled that Proposition 51 did not apply because plaintiff's exposure to asbestos preceded the effective date of the measure.   For the reasons that follow, we conclude the trial court selected the wrong touchstone for deciding whether the new law applied.

A. This Is a Comparative Fault Case

 Plaintiff argues that comparative fault is not at issue here.   Even if the date of exposure is not the correct test, he contends, Proposition 51 does not apply because substantial evidence demonstrates his exposure to OCF products alone was sufficient to cause his mesothelioma.   Thus, he urges:  (1) OCF failed to carry its burden of proving causation by other manufacturers;  and (2) the purpose of Proposition 51 would not be served by reducing OCF's liability for a disease caused entirely by its products.   These claims fly in the face of the jury's finding that only 40 percent of plaintiff's injury was attributable to OCF.   Plaintiff maintains the jury found that 40 percent of his asbestos exposure was attributable to OCF.   The record does not support that claim.   The jury expressly determined that 40 percent of the “total causes of David Peterson's injury” was attributable to OCF.2  The evidence supports that determination.   OCF met its burden.   The jury did engage in the comparison of fault contemplated by Proposition 51, and, if Proposition 51 applies, OCF is liable for only 40 percent of plaintiff's noneconomic damages.

B. The Applicability of Proposition 51 Turns on the Date of Injury

 Proposition 51, effective June 4, 1986, significantly modified the common law rule of joint and several liability in comparative fault situations.   Under the proposition, multiple tortfeasors continue to be jointly and severally liable for all economic damages.   However, joint tortfeasors are only liable for the percentage of noneconomic damages commensurate with their percentage of fault.  (Civ.Code, § 1431.2, subd. (a);  Evangelatos, supra, 44 Cal.3d at pp. 1192–1193, fn. 2, 246 Cal.Rptr. 629, 753 P.2d 585.)   In Evangelatos, the Supreme Court held that the change does not apply to causes of action that accrued before the effective date of the initiative.  (44 Cal.3d at pp. 1193–1194, 246 Cal.Rptr. 629, 753 P.2d 585.)   The question here, then, is whether a cause of action “accrued,” within the meaning of Evangelatos, before June 4, 1986.

The case is complicated by the fact that plaintiff's cancer was a latent disease that probably began to develop decades after his exposure to asbestos and was not diagnosable for years after its inception.   In contrast, the plaintiff in Evangelatos was injured suddenly and obviously years before Proposition 51 was enacted;  thus, the Supreme Court did not address when a cause of action “accrues” in a latent injury context.3  (44 Cal.3d at pp. 1194–1195, 246 Cal.Rptr. 629, 753 P.2d 585.)   Analytically, one could posit a continuum of potential triggers for Proposition 51 application, beginning with exposure and proceeding through the inception of undetected physical changes, the appearance of symptoms, diagnosis, the filing of suit, the start of trial, verdict, and judgment.   We must determine where, on that continuum, a latent injury action accrues.

The Evangelatos reasoning on a related issue strongly indicates the key point is when the plaintiff first suffers actual injury.   The plaintiff in Evangelatos argued that applying Proposition 51 to causes of action that accrued before its effective date would constitute an improper, retroactive application.  (44 Cal.3d at p. 1193, 246 Cal.Rptr. 629, 753 P.2d 585.)   Amici curiae supporting the defense apparently acknowledged that legal changes like Proposition 51 are customarily applied prospectively.   They urged, however, that to apply the limitation to causes of action accruing before the measure's effective date, but coming to trial after that date, would indeed constitute a prospective application in the sense that it would apply only to cases coming to trial after June 4, 1986.  (Id. at p. 1205, 246 Cal.Rptr. 629, 753 P.2d 585.)   The Supreme Court disagreed, noting that the point from which the law must be prospectively applied is not the time of trial, but the time of accrual.   The court relied upon the reasoning in Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 182 P.2d 159 (Aetna ), that a law affecting “ ‘rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute’ ” is retrospective.  (Evangelatos, supra, at p. 1206, 246 Cal.Rptr. 629, 753 P.2d 585, italics added, quoting Aetna, supra, at p. 391, 182 P.2d 159.)  “ ‘Since the industrial injury is the basis for any compensation award, the law in force at the time of the injury is to be taken as the measure of the injured person's right of recovery.’ ”  (Evangelatos, supra, at p. 1206, 246 Cal.Rptr. 629, 753 P.2d 585, quoting Aetna, supra, at p. 392, 182 P.2d 159, italics added.)   In Aetna, the court rejected a contention that the measure of compensation for an industrial disability was to be determined by the law in force when the employee's long-term disability became manifest rather than when the accident and injury resulting in the disability had occurred.  (30 Cal.2d at pp. 391–392, 182 P.2d 159.) 4

The question, then, is how to determine the point at which the plaintiff is “injured.”   While the answer might be self-evident in a case such as Evangelatos, where the plaintiff's injury was immediately evident, it is not so readily apparent in the context of latent diseases that develop incrementally and undetected over extended periods of time.  (See, e.g., Cole v. Celotex Corp. (La.1992) 599 So.2d 1058, 1065.) 5  In the absence of direct precedent, we look to settled principles of tort law for guidance.

 The Restatement Second of Torts section 402A sets forth the conditions under which a seller of a defective product “is subject to liability for physical harm thereby caused to the ultimate user․”   Harm, in this context, denotes loss or detriment in fact;  it is actionable when it is legally caused by the tortious conduct of another and results from the invasion of a legally protected interest.6  (Rest.2d Torts, § 7, subd. (2) & com. d, p. 14.)   Physical harm is defined as “the physical impairment of the human body․”  (Rest.2d Torts, § 7, subd. (3).)  A comment to this section elaborates that “[p]hysical changes or alterations may be either beneficial, detrimental, or of no consequence to a person.   In so far [sic] as physical changes have a detrimental effect on a person, that person suffers harm․   Thus harm ․ is the detriment or loss to a person which occurs by virtue of, or as a result of, some alteration or change in his person, or in physical things, and also the detriment resulting to him from acts or conditions which impair his physical ․ well-being․”  (Rest.2d Torts, § 7, com. b, pp. 13–14, italics added.) 7

When exposure to a toxic substance causes cancer in an individual, that person is injured or harmed by the acquisition of the disease, whether or not he is aware of its presence.   A contrary conclusion runs counter both to common sense and accepted usage of the term “injury.”   Our Supreme Court in Aetna suggested as much by expressly rejecting a contention that a new compensation rule could be applied prospectively, as long as it was in effect not when the industrial accident occurred, but later, when the resulting disability became “manifest.”  (Aetna, supra, 30 Cal.2d at pp. 391–392, 182 P.2d 159.)

 We distill the following rule.   An individual sustains an “injury,” for purposes of Proposition 51, when he has undergone a physiological change that will, to a reasonable degree of medical certainty, result in the condition giving rise to the cause of action.8  At that point, the tortfeasor's actions have harmed the plaintiff by causing a detrimental physical condition.   Whether the plaintiff is aware of it or not, he is no less injured.   Under this test, a cause of action does not “accrue” at the point of mere exposure to or inhalation of asbestos fibers, because many who are exposed will never suffer a compensable injury.  (See Todd Shipyards Corp. v. Black (9th Cir.1983) 717 F.2d 1280, 1289–1290.)   Neither would a nondetrimental physiological reaction to asbestos exposure constitute accrual.  (See Toxic Substances Litigation, supra, 76 Cal.L.Rev. at pp. 974–975 & fn. 41 [discussing benign diseases that rarely result in significant dysfunction or ill health].)   On the other hand, under this definition a cause of action may, under specific circumstances, accrue for purposes of Proposition 51 application before the plaintiff is diagnosed or diagnosable.

The dissent suggests this rule is incompatible with the rule against recovery for speculative and unrealized harm.  (Dis. opn., post, at p. 911.)   We disagree.   The analytic difficulty in these cases is that the point at which compensable harm has been suffered will always have to be evaluated in retrospect.   According to expert testimony given in this case, an individual will not be diagnosable with mesothelioma for some 10 to 15 years after his cells have embarked upon an irreversible progression towards the disease, which is invariably fatal.   At the point of that initial cellular change, the individual has experienced no symptoms and, because he is unaware of his condition, has suffered no associated emotional distress or compensable fear of cancer.  (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795.)   He has, however, suffered a serious, functional impairment of his cells.   Moreover, from that point onward, absent some intervening illness or accident, that impairment will shorten his lifespan.   We think such an impairment is compensable.  (See Duarte v. Zachariah, supra, 22 Cal.App.4th at pp. 1660–1665, 28 Cal.Rptr.2d 88 [injury to bone marrow cells compensable, even if only resulting impairment is inability to undergo treatment that would diminish likelihood of recurrence of cancer by only 5 percent].)

It could be argued that damages for such harm are speculative because an individual could die of unrelated causes in the decade or more between the initial cellular changes and the manifestation of mesothelioma.   However, in the unique context in which these cases arise, it will be beyond argument that the plaintiff has, in fact, survived long enough to manifest the disease.   In choosing between a policy that would ignore the reality of an injury because it was not immediately apparent and one that would recognize harm proven to exist by expert medical testimony based on all relevant information, we believe conventional tort analysis augurs in favor of the latter.

C. OCF's Arguments for a “Manifestation” Test Are Not Persuasive

OCF urges us to hold that, for Proposition 51 purposes, a cause of action for a latent injury accrues only when a plaintiff is diagnosed with or displays objectively verifiable symptoms of an asbestos-related disease.9  OCF cites no authority that would allow us to delay accrual for this purpose by engrafting a manifestation or diagnosis requirement onto the well-settled elements of a cause of action for negligence or strict products liability.   (See BAJI Nos. 3.00, 9.00.3, 9.00.5, 9.19 (8th ed. 1994 bound vol.).)

Our dissenting colleague proposes a test similar to OCF's manifestation test.   Fashioning a modified version of the “discovery rule” that has evolved in applying statutes of limitations to latent injury actions, the dissent concludes that a cause of action accrues for Proposition 51 purposes when the plaintiff discovers the latent injury and its wrongful cause.  (Dis. opn., post, at pp. 910, 913–915.)   It urges that statute of limitations law is instructive because “it was developed to deal with the difficulties of determining when a cause of action for a latent injury arises․”  (Id. at p. 910.)   On closer inspection, however, we believe the analogy to statute of limitations law is untenable.

 It is well settled that, for statute of limitations' purposes, a cause of action for a latent injury does not accrue until the plaintiff discovers or reasonably should have discovered that he suffered a compensable injury.  (Velasquez v. Fibreboard Paper Products Corp. (1979) 97 Cal.App.3d 881, 887–888, 159 Cal.Rptr. 113 [applying discovery rule to strict liability action].)   The principle that the statutory time does not begin running until the injury is discovered or discoverable, however, is an exception to the general rule that a cause of action will accrue whether or not the plaintiff is aware of it.  (3 Witkin, Cal. Procedure (3d ed. 1985) Actions, §§ 351, 352, 355, pp. 380–381, 383;  id. (1995 supp.) p. 167.)   The reason for the exception is to ameliorate a harsh rule that would allow a plaintiff's filing time to expire before he has or should have learned of the injury and its cause.  (Op. cit. supra, §§ 354–355, pp. 382–383;  see Toxic Substances Litigation, supra, 76 Cal.L.Rev. at pp. 976–978.)   That consideration is irrelevant to the question of when Proposition 51's limitations should come into play.

We are not alone in refusing to apply the discovery rule, developed in a statute of limitations' context, as the test for application of a newly enacted tort recovery law.   In Fetzer v. Wood (1991) 211 Ill.App.3d 70, 155 Ill.Dec. 626, 632, 569 N.E.2d 1237, 1243, the Illinois Appellate Court reasoned as follows:  “ ‘We do not agree that a cause of action is nonexistent prior to the time of accrual [for the purpose of the statute of limitations].   Logic dictates that a plaintiff cannot bring a cause of action until he knows or reasonably should know of his injury, and also knows or reasonably should know that the injury was caused by the wrongful acts of another.   However, that does not mean that the plaintiff does not have an existing cause of action of which he is unaware.’  ․ [Citation.]  [¶] ․ [¶] In addition, we feel compelled to point out that too much reliance ․ on the ‘discovery rule’ is misplaced.   First, statutes of limitations, like other statutes, must be viewed in light of their objectives.  [Citation.]   The purpose of the statute of limitations is certainly not to shield a wrongdoer;  rather, it is to discourage the presentation of stale claims and to encourage diligence in the bringing of actions.  [Citation.]   Second, the discovery rule concerns charging a plaintiff with knowledge of an injury and its wrongful cause for purposes of the running of a statute of limitations.   Such is not at issue here.   Rather, this case concerns if and when facts existed to support a cause of action for purposes of determining the applicability of the modified comparative negligence statute.”  (Second italics added;  see also Owens–Illinois v. Armstrong, supra, 604 A.2d at pp. 53–55 [drawing distinction between when a cause of action first comes into existence (i.e., when facts exist to support each element) and when it may reasonably be discovered].)

The dissent also relies heavily on the notion that, because plaintiff was diagnosed after Proposition 51 had passed, applying the provision to his case would not upset any settled expectations or litigation strategies he may have formed on the basis of pre-Proposition 51 law.   While this is true, we believe it is of little relevance to the issue at hand.   The fact that plaintiffs in Evangelatos had relied on former law in making litigation decisions was indisputably a significant factor in the court's determination that the electorate did not intend Proposition 51 to apply retroactively.   (Dis. opn., post, at p. 916, citing Evangelatos, supra, 44 Cal.3d at pp. 1213–1217, 246 Cal.Rptr. 629, 753 P.2d 585.)   That determination, however, is now settled law.   Based on its analysis of retroactivity principles, including the notion of settled expectations, the Evangelatos court unambiguously held that Proposition 51 is inapplicable to causes of action accruing before its enactment.  (44 Cal.3d at pp. 1193–1194, 1205–1227, 246 Cal.Rptr. 629, 753 P.2d 585.)   We are bound by that holding whether or not the plaintiff in this case placed any reasonable reliance on pre-Proposition 51 law.

OCF's arguments in support of a manifestation or diagnosis rule are also unpersuasive.   It objects that a test hinging on the inception of an undetected disease will unnecessarily interject confusing and questionable medical testimony into asbestos trials, making outcomes uncertain and inviting speculation, manipulation of facts, and “statistical guessing.”   Of this parade of horribles, we agree that the test we set forth here will in most, if not all, cases require the testimony of medical experts.   That a “date of diagnosis” test would be easier to apply, however, does not justify discarding established principles of tort law.   We add that medical testimony would have to meet the standard of general scientific acceptance in order to be admitted.  (People v. Barney (1992) 8 Cal.App.4th 798, 810, 10 Cal.Rptr.2d 731.)   Further, any such testimony that is admitted would also be subject to the same kind of jury scrutiny as is present in any case involving expert testimony.

Nor are we persuaded by OCF's sweeping contention that the inception date of latent diseases such as lung cancer and mesothelioma is simply unknowable and unprovable.   The relevant question is whether the inception occurred before or after Proposition 51 took effect;  there is no need to identify the inception date with more precision than that.   In this case, plaintiff presented expert testimony that, even if the precise date of inception could not be pinpointed, plaintiff's mesothelioma was irreversibly established by 1983.   How such testimony might stand up to cross-examination and, possibly, countervailing expert testimony upon remand remains to be seen.   Because the trial court had already ruled that application of Proposition 51 turned on the date of exposure, not inception, OCF had no reason to challenge that testimony.   We therefore remand to the trial court to determine whether plaintiff's cause of action accrued before or after Proposition 51 took effect.

Disposition

The judgment is reversed, and the matter is remanded for the limited purpose of determining whether Proposition 51 applies under the test we have outlined above.   If the measure is found to apply, the award of noneconomic damages is to be reduced by 60 percent.   Each party is to bear its own costs on appeal.

I respectfully dissent.   Ten years ago, the people of this state declared that the doctrine of unrestricted joint and several liability “has resulted in a system of inequity and injustice.”   The voters passed Proposition 51 to reform that system by holding “defendants in tort actions ․ financially liable in closer proportion to their degree of fault.”  (Civ.Code, § 1431.1.)   The core provision of Proposition 51 states:  “In any action for personal injury ․ based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint.   Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault․”  (Civ.Code, § 1431.2, subd. (a).)  These provisions became law four years before Mr. Peterson suffered any of the damages he recovered at trial, and nearly five years before he learned that OCF's asbestos products were a cause of those damages.

The majority formulates an abstract concept of “injury” which makes the disfavored doctrine of joint and several liability available to plaintiffs who could claim no recoverable damages when Proposition 51 took effect, but whose medical experts convince a jury that the plaintiffs' damages were the “medically certain” result of undetected cellular changes occurring years earlier.   I do not believe such cellular changes constitute the actual harm required for a cause of action under the settled principles of tort law invoked by the majority.   Furthermore, in determining whether a particular application of Proposition 51 is retroactive, I believe the rules governing accrual of a cause of action provide essential guidance, but they are only one consideration.   The principles underlying prospective application of statutes must also be considered.   I would hold that a plaintiff may recover joint and several noneconomic damages for a latent injury only if he suffered actual harm, and was aware of the harm and its wrongful cause before the effective date of Proposition 51.

I. Actual Injury

Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 246 Cal.Rptr. 629, 753 P.2d 585 (Evangelatos ) holds that Proposition 51 applies only to causes of action arising after the initiative's effective date.  (Id. at p. 1206, 246 Cal.Rptr. 629, 753 P.2d 585.)   As noted by the majority, however, Evangelatos did not consider a latent injury like Mr. Peterson's.  (Maj. opn., ante, at p. 905.)   I join with the majority in acknowledging that pinpointing the date of a latent injury is “virtually impossible, medically and legally.”  (Id. at p. 906, fn. 5, quoting Cole v. Celotex Corp. (La.1992) 599 So.2d 1058, 1065–1066.)   After that we part company, for the majority proceeds to conclude that in the latent injury context, “injury” for purposes of determining whether Proposition 51 applies is something less than the actual injury required to support a cause of action.1

Harm must be actual to be actionable.   Nominal damage, speculative harm, or the unrealized threat of future harm is insufficient to support a personal injury cause of action.  (Adams v. Paul (1995) 11 Cal.4th 583, 589, 46 Cal.Rptr.2d 594, 904 P.2d 1205 [“the character or quality of the injury must be manifest and palpable”];  Larcher v. Wanless (1976) 18 Cal.3d 646, 656, fn. 11, 135 Cal.Rptr. 75, 557 P.2d 507 [plaintiff must suffer “appreciable harm”];  Duarte v. Zachariah (1994) 22 Cal.App.4th 1652, 1661–1663, 28 Cal.Rptr.2d 88 (Duarte ) [damage to immune system constitutes physical harm sufficient to support cause of action only if “the functioning of the immune system has been demonstrably impaired”];  Rest.2d Torts, § 907, com. a, p. 462;  6 Witkin, Summary of Cal.Law (9th ed. 1990) Torts, § 1316, p. 775.)  “Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered.”  (Prosser & Keeton, Torts (5th ed. 1984) § 30, p. 165.)   The same requirement of actual harm applies to a strict products liability cause of action.  (6 Witkin, Summary of Cal.Law, supra, Torts, § 1244, p. 679.)

The majority opinion acknowledges in a footnote that there can be no cause of action without actual harm.  (Maj. opn., ante, at p. 907, fn. 7.)   Nevertheless, it holds that “ ‘injury,’ for purposes of Proposition 51,” is suffered by a person who “has undergone a physiological change that will, to a reasonable degree of medical certainty, result in the condition giving rise to the cause of action.”  (Id. at p. 907.)   None of the authority cited by the majority supports this proposition, which is incompatible with the rule against recovery for speculative and unrealized harm.

In footnote 7, the majority opinion notes that an injured plaintiff may recover for disability or suffering that is reasonably certain to occur.   However, such recovery is predicated on an existing compensable injury—i.e., on an established cause of action.   As Witkin states at the beginning of the section cited by the majority:  “The plaintiff can establish liability only on a cause of action which accrued prior to the filing of the complaint.   But once that liability is established, recovery may be had for [prospective damages].”  (6 Witkin, Summary of Cal.Law, supra, Torts, § 1326, pp. 783–784, italics in original.)   Prospective damages are recoverable after a cause of action is established;  prospective damages themselves do not establish a cause of action.

The majority interprets Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 391–392, 182 P.2d 159 (Aetna Cas.), as suggesting that one who has acquired a disease without being aware of its presence is harmed despite the absence of any manifestation of disability.  (Maj. opn., ante, at p. 907.)   In Aetna Cas., however, there was no dispute that “admittedly compensable injury” occurred before the workers' compensation statutes were amended.   The court was concerned with whether new provisions governing compensation for temporary and permanent disability applied to those injuries.   It rejected the notion that “disability” is conceptually distinct from “injury,” noting “[t]he prior industrial injury was not a mere antecedent fact relating to the permanent disability ensuing therefrom;  on the contrary, it was the basis of the right to be compensated for such disability.”  (30 Cal.2d at pp. 391–392, 182 P.2d 159.)   Read properly, Aetna Cas. reaffirms the principle that there can be no cause of action without a compensable injury.

The majority places its principal reliance on the discussion of injury and harm in the Restatement Second of Torts section 7.  (Maj. opn., ante, at p. 907.)   I agree that the Restatement's definition of “harm” is consistent with the requirements for actionable injury under California law.  (Maj. opn., ante, at p. 906, fn. 6;  Duarte, supra, 22 Cal.App.4th at pp. 1661–1662, 28 Cal.Rptr.2d 88.)   But it is not consistent with “a physiological change that will, to a reasonable degree of medical certainty, result in the condition giving rise to the cause of action.”  (Maj. opn., ante, at p. 907.)   The Restatement discusses physical harm as that “which occurs by virtue of, or as a result of, some alteration or change” in a person's physical condition.   (Rest.2d Torts, § 7, com. b, at p. 13.)   The harm is the result, not the initial change in physical condition.   The majority reverses the Restatement analysis by pegging injury to the original physiological change instead of to the resulting condition.   This has the unfortunate and unwarranted effect of introducing an element of causation into the question of when harm has occurred.

“The term ‘harm’ implies no particular causal relation.   It may result from the acts of the person harmed, the acts of other persons, the forces of nature, or a combination of any of these sources.   However, it is only when the harm is legally caused by the acts or omissions of another that a person has any legal grounds for objection, or any legal rights in respect to the harm.”  (Rest.2d Torts, § 7, com. c, at p. 14.)   In this case all parties agree that Mr. Peterson's injuries were caused by his asbestos exposure;  proximate cause is not in issue.   Yet, the majority's rule for determining whether Proposition 51 applies is most closely related to the standard governing the determination of proximate cause.  “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.”   (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402, 209 Cal.Rptr. 456;  accord, Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603, 1 Cal.Rptr.2d 584;  Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498, 7 Cal.Rptr.2d 608.)

The majority holds that a person who has suffered a physiological change which will eventually result in actual harm has been injured in a significant sense, even if he is unaware of it.   I respectfully disagree that such physiological change is legally compensable, or that it is sufficient for a cause of action to accrue.   If Mr. Peterson had suffered cellular changes in 1983 and remained symptom-free until he died accidentally in 1990, the majority could not reasonably contend that he ever had a cause of action against OCF, even if an autopsy disclosed the developing mesothelioma.   He would have had no lost earnings, no noticeable impairment of physical function, no pain and suffering, and no medical expenses attributable to his asbestos exposure.   The majority acknowledges that at the time of the cellular changes, Mr. Peterson had no cause of action for “fear of cancer” under Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795.   However, they hold that a “functional impairment” of Mr. Peterson's cells which “will shorten his lifespan” absent an intervening cause, is a compensable injury.   (Maj. opn., ante, at p. 908, citing Duarte, supra, 22 Cal.App.4th 1652, 28 Cal.Rptr.2d 88.)   In Duarte, the plaintiff became extremely ill from a drug overdose the defendant administered while treating her for cancer.   As a consequence, she suffered manifest bone marrow damage.   Her treating physician testified that the plaintiff's blood platelet count was too low to permit further chemotherapy.   In Duarte, the injury was specific, measurable, caused a violent reaction, and limited the plaintiff's treatment options.   In short, there was no guesswork.   I would agree that a cause of action exists if a plaintiff has wrongfully suffered functional cellular impairment and associated damages of the type present in Duarte.   Mr. Peterson's cellular changes, however, were not comparable to those in Duarte.

The Duarte court recognized “appreciable functional impairment” as the basis of the cause of action.  (22 Cal.App.4th at p. 1663, 28 Cal.Rptr.2d 88.)   Whatever cellular changes occurred before Mr. Peterson's injury became manifest were not appreciable by anyone.   There was simply no cause for complaint while these changes were ongoing;  there is nothing to suggest Mr. Peterson's ability to function normally was limited in any way before he sought treatment in 1990.   His undetected cellular changes were insufficient to cause him compensable damages or sustain a cause of action.   Additionally, the nature and timing of those cell changes is a subject of much guesswork.

The majority characterizes Mr. Peterson's expert testimony as supporting the conclusion that his mesothelioma was irreversibly established by 1983.   (Maj. opn., ante, at pp. 909–910.)   However, the testimony of the experts was not so specific.   Mr. Peterson's epidemiologist stated “based on various studies and information” (not including information specific to Mr. Peterson), it was his opinion that approximately 15 years before a mesothelioma patient is diagnosed, cellular changes have “likely” occurred which make the cancer inevitable.   He testified the latency period for development of mesothelioma is usually 30 to 35 years, although it may be as long as 50 to 60 years.   Mr. Peterson's pathologist testified the growth rate of mesothelioma is unknown, and varies widely from individual to individual.   He stated no one could say exactly when Mr. Peterson's tumor began.   In my view, such evidence establishes no more than speculative and unrealized harm.   The right to recover cannot arise until actual harm is manifested, and recoverable damages are suffered.   Reaching back in time beyond manifestation is not justified in light of the tort recovery reforms enacted by Proposition 51.

II. Statute of Limitations Principles

The majority rejects the discovery rule as a guideline for deciding whether to apply Proposition 51 in latent injury cases.   I do not agree that the discovery rule is irrelevant in determining whether Proposition 51 applies.   On the contrary, because it was developed to deal with the difficulties of determining when a cause of action for a latent injury arises, the discovery rule is directly relevant when applying the guidelines of Evangelatos in the latent injury context.

Ordinarily, the statute of limitations begins to run when the plaintiff's cause of action accrues—that is, upon the occurrence of the last element essential to the cause of action.   This is when the plaintiff is first entitled to sue.  (Code Civ.Proc., § 312;  Spear v. California State Auto. Assn. (1992) 2 Cal.4th 1035, 1040, 9 Cal.Rptr.2d 381, 831 P.2d 821;  Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 187, 98 Cal.Rptr. 837, 491 P.2d 421;  3 Witkin, Cal.Procedure (3d ed. 1985) Actions, § 351, pp. 380–381.)   The discovery rule modifies this fundamental principle by delaying accrual of the cause of action until the plaintiff is aware, actually or constructively, that he has a cause of action.  (See Prosser & Keeton, Torts, supra, § 30, pp. 165–168 [discussing discovery rule in conjunction with actual loss element of negligence cause of action];  3 Witkin, Cal. Procedure, supra, Actions, § 355, p. 383 [distinguishing delayed accrual from tolling of statute].)   The discovery “exception” is recognized in a wide variety of circumstances in which the plaintiff is typically unaware of the injuries caused by the defendant.  (See 3 Witkin, Cal.Procedure, supra, Actions, §§ 354, 355, pp. 382–383.)

The long latency period for asbestos-related injuries led the courts to apply the discovery rule to determine when the cause of action accrued.   In Velasquez v. Fibreboard Paper Products Corp. (1979) 97 Cal.App.3d 881, 159 Cal.Rptr. 113 (Velasquez ), plaintiff sued for injuries caused by asbestosis.   The court noted “[w]here there is no single, alleged wrongful act but instead a period of exposure which results in a creeping disease the problem of determining when a cause of action accrues is acutely difficult.   Unlike the situation where a plaintiff is run over by a truck, the plaintiff may be unaware of his rights until his injury is apparent or until diagnosis brings home to him the fact that there has been a ‘wrongful act.’ ”  (Id. at p. 885, 159 Cal.Rptr. 113.)   Accordingly, the court decided “in a negligence or strict liability action, discovery is the appropriate test for determining accrual of a cause of action for a progressive disease.   The question is what did the plaintiff know and when did he know it.   When did he know or when should he have discovered that he was suffering from a disease that had caused or was likely to cause him injury for which relief could be sought at law.   Logically, such knowledge might come as well from an early diagnosis of a latent disorder as from an experience of pain or disability of an active disorder.”  (Id. at pp. 887–888, 159 Cal.Rptr. 113.)

The Legislature has since enacted a limitations period for asbestos-related personal injury actions that is not linked to any element of the plaintiff's cause of action, and therefore is not helpful in determining whether the cause of action arose before or after the effective date of Proposition 51.2  I believe the discovery rule outlined in Velasquez provides the most useful view of when a cause of action for latent injury caused by asbestos exposure arises.3  The majority cites Fetzer v. Wood (1991) 211 Ill.App.3d 70, 155 Ill.Dec. 626, 569 N.E.2d 1237, and Owens–Illinois v. Armstrong (1992) 326 Md. 107, 604 A.2d 47, for the proposition that a cause of action may “exist” before the plaintiff is aware of it, and therefore the discovery rule is irrelevant in deciding whether a newly enacted tort reform statute applies.   I am not persuaded by these cases.   Like the majority, Fetzer and Armstrong consult the purposes of the discovery rule and find them irrelevant in determining the applicability of a tort reform statute, without giving any consideration to the purposes of the tort reform statute.   Just as it is unfair to foreclose a plaintiff's cause of action before he was aware of its existence, it is also unfair to give the plaintiff the benefit of unrestricted joint and several liability that was abolished before the plaintiff discovered his cause of action.   Furthermore, the discovery rule is based on the existence of an actual injury, which the plaintiff discovers.   The prior “existence” of an undiscovered cause of action, however, is a matter of conjecture and speculation.

A similar argument that a cause of action “existed” before it “accrued” for statute of limitations purposes was rejected in Schweitzer v. Consolidated Rail Corp. (Conrail) (3d Cir.1985) 758 F.2d 936.   There, defendants which had reorganized in bankruptcy moved to dismiss tort claims by former railroad workers alleging personal injuries caused by asbestos exposure.   The defendants argued those causes of action were barred because they existed prior to the consummation dates of the defendants' reorganizations, even if they did not accrue for statute of limitations purposes until later, when the asbestos-related injuries became manifest.   The court disagreed, stating:  “[T]here is generally no cause of action in tort until a plaintiff has suffered identifiable, compensable injury․   ¶ It is true that the possible existence of subclinical asbestos-related injury prior to manifestation may be of interest to a histologist.  [Citation] ․ We believe, however, that subclinical injury resulting from exposure to asbestos is insufficient to constitute the actual loss or damage to a plaintiff's interest required to sustain a cause of action under generally applicable principles of tort law.”   (Id. at p. 942.)

I agree with the Schweitzer analysis.   A “phantom” cause of action that exists before harm is manifest should not be legally recognized.   The existence of a personal injury cause of action, whether for purposes of demurrer or motion to dismiss, dischargeability in bankruptcy, the running of the statute of limitations, or application of a tort reform statute, must be firmly grounded on actual injury or damage.   Until there has been a manifest deleterious effect from a wrongful harm, there is no cause of action.   We should not consider liability before the effects of a tortfeasor's conduct intrude on the plaintiff's lived experience.   To do so expands liability unreasonably in my view, which is at odds with the very purpose of Proposition 51.

The discovery rule preserves the requirement of actual injury without requiring the exact date of a latent injury to be determined, which is inevitably a matter of estimation.   It increases the likelihood of objective certainty in the fact-finding process.   Furthermore, the discovery rule's emphasis on the plaintiff's awareness of the injury and its wrongful cause is particularly relevant to the analysis of statutory retroactivity.   As I discuss next, reliance on former law is an important factor in determining whether a statute applies retroactively.   Without awareness of injury, there can be no reliance on the law governing recovery for that injury.

III. Retroactivity Principles

The Petersons argue that a defendant's liability must be determined by the law in effect when the defendant's misconduct inflicted the injury, citing Landgraf v. USI Film Products (1994) 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (Landgraf ).   The majority does not discuss the principles of statutory retroactivity expressed in Landgraf.   Contrary to the Petersons' argument, I believe a careful examination of those principles supports the conclusion that applying the law in force when the plaintiff discovers his or her cause of action does not lead to a retroactive application of Proposition 51.   Furthermore, the principles articulated in Landgraf are consistent with the retroactivity analysis in Evangelatos.

Landgraf held that certain provisions of the Civil Rights Act could not be applied to a case pending on appeal when the Act took effect.   The provisions at issue created a right to recover compensatory and punitive damages for specified violations of existing civil rights statutes.   After deciding that nothing in the text of the Act required its application to pending cases, the court observed:  “[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.  [Fn. omitted.]   Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly;  settled expectations should not be lightly disrupted.  [Fn. omitted.]   For that reason, the ‘principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.’  [Citation.]”  (––– U.S. at p. ––––, 114 S.Ct. at p. 1497.)

I fully agree that ordinarily, the legal effect of conduct must be assessed under the law in existence when the conduct occurred.   Ordinarily, however, does not mean always and under all circumstances.   The Landgraf court, like the Evangelatos court, was not confronted with a latent disease that did not cause symptoms for years.   Nevertheless, Landgraf's analysis of legislative retroactivity is relevant to cases involving latent injuries.   The Petersons claim application of Proposition 51 would be impermissibly retroactive because OCF's conduct occurred before the initiative's enactment.   However, Landgraf declares:  “A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute's enactment, [citation], or upsets expectations based in prior law.   [Fn. omitted.]   Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.   The conclusion that a particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.   Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity.   However, ․ familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.”  (––– U.S. at p. ––––, 114 S.Ct. at p. 1499, italics added.)

In determining whether a statute is being applied retroactively, Landgraf advises that the relevant question is not necessarily when the defendant's wrongful conduct occurred, but whether the new provision attaches new legal consequences to “events completed” before its enactment.   Furthermore, whether the new provision imposes new legal consequences should be evaluated in the context of fair notice, reasonable reliance, and settled expectations.   In other words, did the parties develop expectations based on existing legal consequences flowing from the former rule, so that imposition of the new rule would unfairly upset those expectations?   In my view, the relevant “completed event” in this case occurred when Mr. Peterson discovered his injury and right to seek recovery.   That was the first point at which OCF's tortious conduct had legal consequences affecting the parties' settled expectations.   Mr. Peterson's undetected cellular changes had no such consequences.

Evangelatos emphasized reliance on former law as a significant factor in deciding that Proposition 51 should not be given retroactive effect.   The defendants in Evangelatos claimed the remedial purpose of Proposition 51 showed that the electorate intended the measure to be applied retroactively.   The court disagreed:  “[T]he fact that the electorate chose to adopt a new remedial rule for the future does not necessarily demonstrate an intent to apply the new rule retroactively to defeat the reasonable expectations of those who have changed their position in reliance on the old law.   The presumption of prospectivity assures that reasonable reliance on current legal principles will not be defeated in the absence of a clear indication of a legislative intent to override such reliance.”  (44 Cal.3d at pp. 1213–1214, 246 Cal.Rptr. 629, 753 P.2d 585.)   The court reasoned that applying Proposition 51 to pending actions would adversely affect plaintiffs who had decided which potential tortfeasors to sue based on the former joint and several liability rule, and would upset the calculations of both plaintiffs and defendants who had entered into settlement agreements in reliance on preexisting law.  (Id. at pp. 1215–1216, 246 Cal.Rptr. 629, 753 P.2d 585.)  “Thus, retroactive application of the measure to past litigation could have unexpected and potentially unfair consequences for all parties who acted in reliance on the then-existing state of the law.   Prospective application of the measure, while withholding the remedial benefits of the provision from defendants in pending actions, would assure that all parties to litigation were aware of the basic ‘ground rules' when they decided whom to join in the action and on what terms the case should be settled.”  (Id. at p. 1217, 246 Cal.Rptr. 629, 753 P.2d 585.)

In Evangelatos, the injury, legal consultation, filing of the lawsuit, and pretrial activity all preceded the effective date of Proposition 51.   Here, however, Mr. Peterson had no reason to rely on the legal “ground rules” until his injury and its cause were discovered, well after the passage of Proposition 51.   The majority finds the Evangelatos court's discussion of reliance on former law “of little relevance to the issue at hand.”  (Maj. opn., ante, at p. 909.)   I disagree.   The same factors leading the Evangelatos court to conclude that Proposition 51 does not apply retroactively are relevant under Landgraf, in deciding whether a particular application of the Proposition 51 is retroactive or prospective.

If we determine whether Proposition 51 applies by looking to the plaintiff's discovery of a latent injury and its wrongful cause, the parties' reasonable reliance on former law is protected.   Such an approach permits unrestricted joint and several liability for noneconomic damages in cases that were actually contemplated before Proposition 51 took effect.   Until the plaintiff's injury and its wrongful cause are discovered, the plaintiff can have no expectation of recovery, and no actual legal consequences have resulted from the defendant's tortious conduct.   If the plaintiff's discovery does not occur until after June 4, 1986, neither the plaintiff nor the defendant have had occasion to calculate potential liability when the former rule of unrestricted joint and several liability was in effect.   These are the legal consequences with which we should be concerned.   By using hindsight, as contemplated by the majority opinion, one could say that the legal consequences of the defendant's conduct would have been different under the former rule.   But no “settled expectations” or “reasonable reliance” result from this retrospective view of the plaintiff's injury—only, perhaps, regret on the part of the plaintiff and relief on the part of the defendant.

It is important to remember that the electorate declared the former rule of unrestricted joint and several liability to be unjust and economically disastrous.  (Civil Code, § 1431.1.)   Under Proposition 51, the plaintiff still recovers economic damages jointly and severally, and may recover noneconomic damages from all defendants according to their proportions of fault.   Only when there was reasonable reliance on former law does applying Proposition 51 change the legal consequences of past events in a way that upsets the parties' settled expectations.

IV. The Rule of Actual Discovery

If there is ambiguity about when the plaintiff was injured, or when the cause of action arose, the determination of whether Proposition 51 applies should be made with the objective and intent of the initiative in mind.   The purpose of Proposition 51 was to reduce liability for noneconomic damages by holding defendants liable for such damages in proportion to their degree of fault.   Therefore, we should resolve any uncertainty over when a cause of action for a latent injury accrues so as to avoid imposing unrestricted joint and several liability, while remaining faithful to the fundamental principles of tort liability and the rule against retroactive application of statutes.

I believe these purposes are best served by the rule that in latent injury cases, the point at which the plaintiff actually discovers the injury and its wrongful cause determines whether Proposition 51 applies.   If that discovery occurred on or after June 4, 1986, the liability reforms of Proposition 51 should be given effect.   If the discovery occurred before June 4, 1986, then the plaintiff may be presumed to have formed an expectation of recovery based on the law then in effect.   Constructive knowledge is an essential part of the discovery rule for statute of limitations purposes;  i.e., the statute runs if the plaintiff reasonably should have discovered the injury.   However, constructive knowledge is not enough to create reasonable reliance or settled expectations, so as to entitle a plaintiff to unrestricted joint and several liability.   A rule of actual discovery is consistent with the retroactivity principles expressed in Landgraf and Evangelatos.   Most importantly, it fulfills the purposes of Proposition 51 without defeating the reasonable expectations of plaintiffs.

Here, it is undisputed that Mr. Peterson worked full time without being aware of significant health problems until 1990.   He first experienced breathing problems in 1990, and first learned that those problems were related to asbestos exposure in 1991.   Thus, Mr. Peterson did not discover his injuries and their wrongful cause until 1991, well after the 1986 effective date of Proposition 51.   His recovery of noneconomic damages from OCF should be limited in proportion to the 40 percent of fault attributed to OCF by the jury.   I would reverse and remand for the limited purpose of reducing the award of noneconomic damages by 60 percent.

FOOTNOTES

1.   The jury awarded coplaintiff Maryann Peterson no damages.   For clarity and because only David Peterson's recovery is implicated here, we refer to him as “plaintiff.”Proposition 51, the Fair Responsibility Act of 1986, is codified at Civil Code sections 1431 through 1431.5.

2.   At plaintiff's request, a special verdict form was given to the jury specifically to allocate fault.   The form read:  “Assuming that 100% represents the total causes of David Peterson's injury, what percentage of this 100% is attributable to defendant and what percent is attributable to all other entities?”   Lines were provided for “Defendant OWENS–CORNING FIBERGLAS” and “All others.”   The jury denoted 40 and 60 percent, respectively.

3.   Two panels of this district, including one from this division, have recently held a cause of action accrues when the plaintiff suffers some “appreciable” harm, regardless of when he discovers the injury.   (Buttram v. Owens–Corning Fiberglas Corp. (1995) 38 Cal.App.4th 1065, 1073–1074, 39 Cal.Rptr.2d 703, review granted 41 Cal.Rptr.2d 825, 896 P.2d 118;  Coughlin v. Owens–Illinois, Inc. (1993) 36 Cal.App.4th 165, 188, 27 Cal.Rptr.2d 214, review granted 29 Cal.Rptr.2d 538, 871 P.2d 1134.)   As our Supreme Court has granted review of both cases, they no longer constitute authority and we do not cite them as such.  (Cal.Rules of Court, rules 976(d), 977(a).)   We also, however, reject the notion that the determination of whether Proposition 51 applies in latent disease cases depends upon when a plaintiff is finally diagnosed or experiences objectively verifiable symptoms that should reasonably lead him to seek diagnosis.

4.   OCF suggests that plaintiff's cause of action might have arisen as late as the date plaintiff filed suit.   In our view, Evangelatos clearly precludes such a conclusion.  (Evangelatos, supra, 44 Cal.3d at pp. 1205–1206, 246 Cal.Rptr. 629, 753 P.2d 585.)

5.   In Cole, Louisiana's high court aptly observed:  “The difficulties in asbestosis cases arise because, unlike in traditional personal injury cases in which the damage results from a single, identifiable act causing traumatic injury, in asbestosis cases the damage results from a continuous process—a slow development of this hidden disease over the years.  [Citation.]   Compounding the problem, asbestosis cases are characterized by a lengthy latency period—typically ranging a decade or two—and, consequently, a lengthy temporal separation between the tortious conduct and the appearance of injury.  [Citation.]   This lengthy latency period renders efforts to pinpoint the date on which the disease was contracted virtually impossible, medically and legally.  [Citations.]  Further, this inability to pinpoint when injuries were sustained in asbestosis cases renders determining the date on which a plaintiff's cause of action accrued a herculean task.”  (599 So.2d at pp. 1065–1066, fn. omitted;  see also Owens–Illinois v. Armstrong (Ct.App.1992) 326 Md. 107, 604 A.2d 47, 54;  Green, The Paradox of Statutes of Limitations in Toxic Substances Litigation (1988) 76 Cal.L.Rev. 965, 972–976 (hereafter Toxic Substances Litigation ).   Although the disease in this case was mesothelioma, not asbestosis, the same considerations apply.

6.   The Restatement broadly defines “injury” as the invasion of any legally protected interest, regardless of any physical or pecuniary damage, whereas “harm” is a narrower term meaning loss or detriment in fact.   (Rest.2d Torts, § 7, coms. a & d, pp. 13–14;  see Adams v. Paul (1995) 11 Cal.4th 583, 598, 46 Cal.Rptr.2d 594, 904 P.2d 1205 (conc. opn. of Kennard, J.);  Duarte v. Zachariah (1994) 22 Cal.App.4th 1652, 1661, 28 Cal.Rptr.2d 88.)   We think the notion of “injury” intended in Aetna and Evangelatos is well captured by the Restatement's definition of “harm.”

7.   Generally, to be actionable, harm or injury must constitute something more than “ ‘nominal damages, speculative harm, or the threat of future harm—not yet realized․’ ”  (Adams v. Paul, supra, 11 Cal.4th at p. 589, 46 Cal.Rptr.2d 594, 904 P.2d 1205, quoting Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal.Rptr. 849, 491 P.2d 433 [discussing the concept of actual injury in attorney malpractice actions].)   Yet, we must also bear in mind that tort law permits an injured plaintiff to recover not only for losses already suffered, but also for disability or suffering that is reasonably certain to occur.  (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 1326, pp. 783–784;  BAJI No. 14.60 (8th ed. 1994 bound vol.).)

8.   As previously noted, both cases from this district now pending before the Supreme Court looked to the point at which the plaintiff suffered “appreciable harm” as the critical point for determining whether Proposition 51 applies.  (See fn. 3, ante.)   While the test we outline here is similar, we think the term “appreciable harm” can be misleading to the extent it suggests the injury must be “[c]apable of being recognized by the senses, perceptible, sensible.”  (1 Oxford English Dict. (2d ed. 1989) p. 581.)   We are aware of no authority that the “injury” element of a tort cause of action incorporates an additional element of knowledge or recognition of the injury.   The critical point, then, is not plaintiff's awareness, but the fact that plaintiff has, indeed, suffered an injury.

9.   We have already rejected OCF's alternative proposal that the cause of action accrues only when suit is filed.  (Ante, fn. 4.)

1.   I concur in Part 1A of the majority opinion;  this is a comparative fault case requiring us to consider whether Proposition 51 applies.

2.   Code of Civil Procedure section 340.2 requires the plaintiff to commence an action within one year after he or she first suffers a disability causing loss of time from work, or first learns that the disability was caused by asbestos exposure, whichever occurs first.   The statute has been applied to permit injured plaintiffs to sue even though they have suffered no such disability.  (Nelson v. Flintkote Co. (1985) 172 Cal.App.3d 727, 731, 218 Cal.Rptr. 562 [suit by plaintiff who continued working held timely under statute];  Duty v. Abex Corp. (1989) 214 Cal.App.3d 742, 750, 263 Cal.Rptr. 13 [retiree who had not suffered “disability” as defined by statute allowed to sue];  Williamson v. Plant Insulation Co. (1994) 23 Cal.App.4th 1406, 1419, 28 Cal.Rptr.2d 751 [following Duty v. Abex Corp., supra, “the statute of limitations will never begin to run for a plaintiff who was not an ‘employee,’ i.e., who was not part of the labor force or who retired before the onset of what would otherwise have been a disability”];  cf. Darden v. General Motors Corp. (1995) 40 Cal.App.4th 349, 356, 47 Cal.Rptr.2d 580 [plaintiff who sued for injury from asbestos exposure admitted accrual of cause of action, barring him from bringing second suit even if statute had not begun to run].)

3.   The discovery rule is incorporated in the statute of limitations governing medical malpractice actions, an area in which cases involving latent injuries often arise.  Code of Civil Procedure section 340.5 establishes two separate limitation periods for medical malpractice causes of action:  “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”The one-year discovery limitation, which is the same as the Velasquez rule, has been interpreted to require discovery not only of the injury but also of its negligent cause;  the three-year limitation applies whether or not the plaintiff discovers the negligent cause of the injury, but the plaintiff must experience some harm.  (See Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d 1046, 1054, 254 Cal.Rptr. 104;  Dolan v. Borelli (1993) 13 Cal.App.4th 816, 825, 16 Cal.Rptr.2d 714.)

CORRIGAN, Acting Presiding Justice.

CHIN, J.*, concurs.

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