Prenatal Injuries and California’s Statutes of Limitation

A growing number of cases allege that chemical exposures sustained by parents have resulted in birth defect injuries to their children. One case went to defense verdict in Southern California this year (Morales v. Well Pict, Ventura County) and additional cases have been filed both in California and elsewhere. Many of these cases are referred to as “clean room” cases, because the earliest of them involved workers claiming exposure to toxic chemicals used in “clean room” environments producing computer components. Two decisions in California have grappled with the application of two different statutes of limitations that might apply in such circumstances and have reached directly inconsistent conclusions. The Nguyen decision came first in 2014 from the Sixth District in California (covering Silicon Valley). The Lopez decision followed in 2016 in the Second District (covering Los Angeles and environs) and specifically disagreed with Nguyen.

The first statute is California Code of Civil Procedure section 340.4, which provides for a 6-year period of limitation for a minor to bring a claim for “personal injuries sustained before or in the course of … birth.” It is expressly provided that this period is not tolled while the plaintiff is a minor. The second is California Code of Civil Procedure section 340.8, which provides for a 2-year period for injuries caused by exposures to hazardous materials and toxic substances. Section 340.8 is, however, tolled while a plaintiff is a minor. One can easily see how the application of the statutes can be determinative. If section 340.4 applies, each child born with a birth defect must file not later than their 6th birthday. If 340.8 applies, a child can wait until their 20th birthday to file. So, which statute applies where the prenatal injury results from exposure to hazardous materials – the pre-natal statute of limitations, or the toxic tort statute of limitations?

Nguyen applied the toxic tort statute, section 340.8, and found that a complaint filed on behalf of a 16-year-old girl alleging injuries from her in vitro exposures to work place exposures was timely. The court found that the statute was tolled for the entire period of minority of Ms. Nguyen. Lopez acknowledged the holding in Nguyen, but decided to “depart from our colleagues in theSixth District” and held that the pre-natal statute, section 340.4, applied, so that 12-year-old Ms. Lopez was time barred from pursuing her action.

Both these decisions are lengthy and complicated. The Lopez decision drew a dissent. The California Supreme Court has accepted the Lopez decision for review. The matter has been fully briefed, with several amicus curiae briefs filed for the defense. A decision is likely sometime within the next 18-24 months.

In the meantime, just in recent weeks, the same District Court of Appeal that applied section 340.4 in Lopez to time bar an action by a 12-year-old published a decision sorting out the application of apparently conflicting statutes of limitation applying in the family law/probate arena and made some pronouncements that could be applicable to the Nguyen-Lopez disagreement. In Yeh v. Tai, the court stated: “When two statutes of limitation are applicable, the specific takes precedence over the general.”  But which statute is more specific in the clean room context? Section 340.4 applicable to injuries sustained during birth? Or section 340.8 applicable to injuries caused by exposure to toxins? There does not seem to be a clear answer.

The Yeh court went on to rule that “in the event two statutes conflict and cannot be reconciled, later enactments supersede earlier ones.” Section 340.4 was first effective in 1993. Section 340.8 was first effective in 2004. If one were to strictly adhere to the “later enactments supersede earlier ones” rule, then section 340.8 should apply, and a different panel in the Second District erred in deciding Lopez.

This remains a difficult and unclear area. We await the California Supreme Court’s decision in Lopez with great interest as it will have a substantial effect on this growing area of litigation.

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