To Toll or Not to Toll? An Unsettling Answer

Resolving a split among the intermediate appellate courts, the California Supreme Court recently issued an opinion that dramatically extends the period to file suit for birth defects in toxic tort cases. In Lopez v. Sony Electronics, Inc., No. S235357 (Cal. 7/5/18), the court held that these cases, already subject to tolling under the delayed discovery rule, are also tolled during the period of the plaintiff’s minority. The limitations clock does not even start to tick until at least the plaintiff’s eighteenth birthday.

The courts of appeal had divided over whether a suit based on in utero toxic exposure was subject to the six-year limitations period for actions for injuries “sustained before or in the course of his or her birth” or the two-year period for “injury or illness based upon exposure to a hazardous material or toxic substance.” The prenatal/birth injury limitations statute traced back to 1941 and expressly prohibited any tolling during the plaintiff’s period of minority. The toxic exposure limitations statute, enacted in 2004, was silent as to minority tolling, but had been interpreted judicially to be subject to the tolling statute. For in utero injuries attributed to toxic exposures, the clash between the two statutes is irreconcilable, especially with regard to the critical binary question of “to toll or not to toll.”

The statute devoted to birth defect injuries was older and more specific; the toxic exposure statute was more general and more recent. The former clearly expressed a legislative intent to prohibit the lengthy suspension of repose produced by minority tolling; the latter contained no legislative expression whatsoever of any intent as to tolling.

Nevertheless, the California Supreme Court held that the more recent toxic exposure statute prevailed, and minority tolling therefore applied. It found that neither statute was inherently more specific — one focused on when the tort occurred and the other on how. It made no apparent difference to the court that, in operation and practice, the birth defect statute obviously applies to a smaller subset of tort claims.

It also made no difference that the decision effected a silent repeal. An implied repeal of a long-established rule is disfavored and can be found only where an intent to do so is “clearly expressed or necessarily implied.” But the court reasoned that the displacement of section 340.4 was limited, and found it sufficient that

  • The toxic exposure statute spoke broadly (“any civil action based upon exposure to a hazardous material or toxic substance”).
  • That statute declared that it did not affect any existing laws concerning actions not based on toxic exposure, which suggested to the court that the legislature in 2004 did intend to affect all actions involving toxic exposures.
  • The 2004 legislature was plainly aware of the earlier birth defect statute, as it expressly excepted from its scope two neighboring statutes, involving medical malpractice and asbestos claims, yet failed to include any exception for toxic tort birth defect cases.
  • The legislature might have desired the lengthy extension of time to sue because of the difficulty in determining the cause of toxin-induced birth defects.

But in reality the implied repeal is not at all “limited”; it produces a drastic extension of the period to sue, extending the period by up to 18 years, and constitutes a direct and complete abrogation of a clearly expressed intent to prohibit minority tolling in this population of birth defect cases. How could the legislature be deemed to have intended such a radical change sub silentio? As the court of appeal put it, “We are not persuaded the legislature intended to make such a big change in such an obscure way.” The Supreme Court offered no persuasive basis to impute such an intent.

The best justification the court could offer to explain the fictive legislative intent was its speculation that the legislature might have been motivated by concern over the difficulty of discovering the toxic cause of birth defects. But that concern is obviated by the discovery rule, which already delays commencement of the statutory clock until the cause of the injury is or should be suspected. In fact, assuring application of the discovery rule and strengthening it was the avowed purpose of the 2004 statute. This weak speculation falls well short of the “clearly expressed or necessarily implied” intent needed to support an implied repeal and its drastic consequences.

Lawyers who defend toxic tort cases involving ordinary industrial chemical use are frustratingly familiar with the extraordinary difficulty of reconstructing the work environment and the circumstances and levels of exposure. That difficulty increases exponentially with time, as witnesses such as supervisors and co-workers move on; documents are lost or discarded pursuant to retention schedules; memories inevitably fade; buildings, systems and machinery are replaced; and chemical usage, handling, and industrial hygiene practices continually evolve.   Defending claims more than two decades after the alleged chemical exposure exposes defendants to a high level of uncertainty, and is destined to have toxic effects on the availability of substantial proof and the reliability of verdicts.

[Disclosure/Disclaimer: The author filed an amicus brief in this case on behalf of the Product Liability Advisory Council, Inc. supporting the defense position.]