SACRAMENTO - How the California Supreme Court decides a narrow case involving the statute of limitations for prenatal exposure to toxic substances could lead to uncertainty in the state’s litigation system, legal and business experts say.

In Lopez v. Sony Electronics, 12-year old Dominique Lopez brought suit against Sony through her mother and guardian ad litem Cheryl Lopez, alleging that her prenatal exposure to chemicals in the workplace resulted in birth defects and permanent injuries.

The California Second District Court of Appeal found in favor of Sony in May 2016, ruling that Lopez’s suit was filed after a six-year statute of limitations set forth in Code of Civil Procedure section 340.4. This section applies to tort actions for birth and pre-birth injuries, and mandates that an action for prenatal injuries cannot be suspended while the plaintiff is a minor.

Lopez appealed to the California Supreme Court, arguing that Code of Civil Procedure section 340.8, which applies to tort actions for exposure to hazardous materials and toxic substances, should instead govern her case. Under this section, the statute of limitations period is two years, but an action for prenatal injuries can be suspended until the plaintiff turns 18.

James Copland, a senior fellow at the Manhattan Institute and director of Legal Policy, contends that Lopez v. Sony is a straightforward statutory interpretation case, one the Second District decided correctly.

“You have two divisions on what statute of limitations applies,” Copland said. “One is specifically through prenatal injuries, the other is not, and this is a prenatal injury. You can’t wait 12 years.”

The Sixth District Court of Appeal in California considered a similar case nearly two years prior to Lopez and came to a different conclusion. In Nguyen v. Western Digital Corp., that court decided that in lawsuits involving prenatal injuries caused by exposure to toxic substances, section 340.8 replaces the six-year statute of limitations period of section 340.4.

John Doherty, president of the Civil Justice Association of California, points out that it’s not surprising to see appellate courts split over the issue since there are two applicable statutes of limitations. While he understands why someone might argue that either one of the statutes applies, he says he prefers the bright-line test the Second District offers in the Lopez case.

“If you have a child born with birth defects, you need to sue within six years,” Doherty said. “There is certainty there and it makes some sense in terms of when someone is born with a birth defect, you’re going to know that in many, many cases very quickly.”

“With the other statute of limitations, there is very little certainty at all because it’s about when the plaintiff discovers the exposure,” he added. “Arguably one could allow a decade or more to go by, and then it’s very tough to figure out what happened and who was at fault.”

Don Willenburg, a partner in the Oakland and San Francisco offices of Gordon & Rees, and leader of the firm’s appellate practice group, agrees that the Second District decided the Lopez case correctly since the statute involving prenatal injuries has been around since the 1800s. He explains that the toxic tort statute wasn’t enacted until 2004, and it doesn’t expressly say that it was intended to affect the prenatal statute.

“The fact that they intersect seems like a happenstance,” Willenburg said. “You can’t say the later statute repealed part of the first one by indication. That just seems wrong.”

Willenburg adds that if the California Supreme Court upholds the Second District decision, it would benefit the defense as well as the business community. He says he expects that the number of claims would be fewer and that claims would also be more recent and easier to explore.

If the California Supreme Court reverses the Second District decision and finds that Lopez’s lawsuit was timely under section 340.8, Copland and Doherty say it could leave the business community with more questions about the statute of limitations in these types of cases.

Copland contends that in the majority of situations, plaintiffs have no reason to wait more than six years to file lawsuits involving prenatal injuries since those injuries are apparent at birth. As a result, he says, if the Lopez case is reversed, it wouldn’t affect a significant volume of litigation, but it would send the wrong message to businesses.

“If the California courts ignore an expressed statutory statute of limitations of six years for prenatal injuries in this context, under a convoluted reading of a different section that doesn’t apply to prenatal injuries, that’s saying to businesses that whatever the law says, we’re going to let lawsuits go,” he said.

Doherty agrees that a reversal in the Lopez case could create problems for businesses by deferring to an open-ended statute of limitations. However, he says, there is a difference between the occurrence of actual exposure and the occurrence of legal actions.

“From a health and safety and regulatory standpoint, exposure to toxic chemicals by pregnant women is something we think happens very rarely,” he said. “But that doesn’t mean that lawsuits will be rare.

“While it’s not the biggest business case concern of the year, I do think how they decide it will impact the certainty of the litigation system.”

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