Whiteley v. R. J. Reynolds Tobacco Co.

Full title: LEONARD WHITELEY et al., Plaintiffs and Respondents, v. R. J. REYNOLDS…

Court: California Court of Appeals, First District, Second Division

Date published: Oct 14, 2009

No. A119345 (Cal. Ct. App. Oct. 14, 2009)

Opinion

LEONARD WHITELEY et al., Plaintiffs and Respondents, v. R. J. REYNOLDS TOBACCO COMPANY et al., Defendants and Appellants. A119345 California Court of Appeal, First District, Second Division October 14, 2009

NOT TO BE PUBLISHED

San Francisco County Super. Ct. No. 303184, cons. With 317140

Kline, P.J.

INTRODUCTION

Defendants Philip Morris Inc. (Philip Morris) and R.J. Reynolds Tobacco Company (R.J. Reynolds) appeal from judgments in favor of plaintiffs in a combined wrongful death and survival action by the estate and the surviving spouse and children of Leslie Whiteley (Whiteley), a smoker who was diagnosed with lung cancer in 1998 and who died in July 2000.

This is the second appeal by defendants. On the first appeal, Whiteley v. Philip Morris, Inc. et al. (2004) 117 Cal.App.4th 635 (Whiteley I), we reversed a judgment in favor of Whiteley and her spouse Leonard Whiteley on causes of action for fraud by intentional misrepresentation, false promise, and negligent misrepresentation, because the trial court erred in failing to instruct the jury that defendants could not be held liable for their conduct from January 1, 1988 to January 1, 1998, during which defendants enjoyed a statutory immunity. We also reversed a verdict for plaintiffs on a negligent design cause of action and directed entry of judgment in favor of defendants on that claim. (Id. at p. 642.) We remanded for a new trial on the fraud-related causes of action. (Id. at pp. 642, 694.) This appeal arises from that retrial.

On retrial, the jury rendered verdicts in favor of plaintiffs on their causes of action for false promise and negligent misrepresentation. For the personal injury claims, the jury awarded Whiteley’s estate $90,640 for past economic damages, which was increased to $225,000 based on a previous stipulation. It awarded Leonard Whiteley $30,000 for pre-death loss of consortium. The jury awarded plaintiffs damages of $2,345,964 on the wrongful death claims. Deadlocking on the issue of whether there was sufficient evidence of malice to warrant punitive damages against Philip Morris, the jury assessed $250,000 punitive damages against R.J. Reynolds on the false promise cause of action. Following a limited retrial of the punitive damages claim against Philip Morris, the jury found in favor of Philip Morris. Judgment was entered against R.J. Reynolds on July 13, 2007, and against Philip Morris on November 19, 2007. These consolidated appeals followed.

Defendants urge us to reverse the judgments, contending: (1) plaintiffs were collaterally estopped by a special verdict in Whiteley I from showing Whiteley’s reliance upon false statements by agents of defendants and, therefore, the trial court erred in admitting evidence of such statements by various entities and organizations alleged to be agents of defendants; (2) the jury’s findings of Whiteley’s reliance on false promises or other misrepresentations by defendants was unsupported by substantial evidence; and (3) the personal injury action (as distinguished from the wrongful death action) was barred by the statute of limitations.

We shall affirm the judgments.

BACKGROUND

A. Whiteley’s Smoking History^{[ 1}

1 Whiteley’s smoking history was presented through excerpts from her videotaped deposition at both the first and second trials. Although some testimony, including that relating to the immunity period, the impact of billboard advertisements, and to Whiteley’s smoking of light cigarettes was omitted from the retrial, her testimony at the retrial was in other respects identical to that presented in the first trial. We therefore quote at length from relevant portions of our opinion in Whiteley I, supra, 117 Cal.App.4th 635, describing that testimony.

“Viewed in the light most favorable to the judgment, the evidence shows that Leslie Whiteley, who was born in 1959, smoked her first cigarette with a friend in 1972 at age 13. She was influenced to start smoking by peer pressure, a desire to fit in and to look cool, as well as by candy and gum cigarettes and advertisements on TV. It was a ‘rite of passage’ and she ‘had seen adults smoking’ and ‘was curio[us] to try to see what it was like.’ ‘[P]eer pressure’ was also a factor. [There was not just one reason that] influenced her to start smoking cigarettes. She recalled cigarette advertisements on TV during her childhood, particularly the Winston song on the Flintstones cartoon series.... She recalled seeing advertisements for cigarette brands while watching TV during her junior high school years.” (Whiteley I, supra, 117 Cal.App.4th at pp. 642-643, fns. omitted.)

“As a teenager growing up, Whiteley did not believe that cigarettes could cause serious disease, death or cancer. Her parents never told her that smoking could cause cancer, death or any health risk. [Whiteley’s mother] did not know or believe that smoking caused cancer. The only teacher who ever suggested Whiteley should quit smoking was her junior high gym teacher who warned her that smoking would slow her down in running track and field.” (Whiteley I, supra, 117 Cal.App.4th at p. 643.) Whiteley did not believe her. “When the high school dean caught Whiteley smoking in the bathroom, [Whiteley] was suspended for breaking the rules, but the dean did not tell her she should not smoke because of health consequences.” (Id. at p. 643.) The dean testified she, herself, smoked, but not excessively. She did not think it was hazardous to herself. Although the dean might have understood in the 1970’s that smoking one pack a day could cause lung cancer, she did not think about it. Smoking was “widespread” at school and in the community. “There was smoking everywhere.”

“Whiteley did not recall actually seeing a cigarette package warning until she became pregnant in 1988. At that time, she thought that if smoking actually caused lower than normal birth weight, then, ‘Thank God I smoked.’ ” (Whiteley I, supra, 117 Cal.App.4th at p. 643.) “As an adult, she heard that the tobacco companies were saying the government made them put the warning labels on cigarettes. She believed the tobacco companies’ denials that smoking cigarettes caused cancer and ‘thought that the government was just sticking their nose into business it didn’t belong in.’ She believed the tobacco companies had said that it was safe to smoke. [She testified, ‘You... guys [defendants] said that these were safe.’] Although she could not say when she heard this information, she believed the source of this information ‘must have been a media or—or TV, or I read it somewhere.’ She believed the tobacco companies, because they manufactured the cigarettes. ‘[T]hey made them so they knew what they did to people or didn’t do to people, so I believed them.’ The worst she thought cigarettes could do in adults was to cause a ‘bad cough,’ because she had seen her grandmother coughing in the morning. She learned that cigarettes could cause something more serious than low birth weight or a cough in an older person, [or not running as fast] ‘[t]he day the doctor told me I had lung cancer.’ ” (Whiteley I, at p. 643.) Asked whether before that time she believed that the manufacturers of the cigarettes she smoked, specifically Philip Morris and R.J. Reynolds, would sell them if they knew cigarettes caused serious injury or death, Whiteley responded, “No.” “I did not believe that they would sell me something that would kill me.”

“When Whiteley began smoking, she smoked from ‘five’ cigarettes to ‘half a pack’ per day. She liked Marlboro cigarettes (a Philip Morris product) because it seemed that ‘[a]ll teenagers smoked Marlboros.’ In high school, Whiteley smoked ‘[a]bout half a pack a day.’ She switched between Marlboro cigarettes and Camels (an R.J. Reynolds product). In high school, she never thought that she would be a smoker for all of her life. At age 15, she tried to quit for the first time because she did not have money to buy cigarettes, but it did not last.” (Whiteley I, supra, 117 Cal.App.4th at p. 643.)

“As an adult, Whiteley began smoking her first cigarette each day as soon as she woke up. She smoked all day long and had to leave nonsmoking places like a church or movie theatre to have a cigarette. She smoked when she was sick with a cold or the flu and even smoked during her pregnancies, including on the way to the hospital. She made at least one serious effort to quit in 1989, when she and Leonard tried to quit together during a camping trip to Yosemite. They tried because they were having children. It was ‘sheer hell.’ Whiteley went through ‘really bad withdrawals,’ experienced ‘extreme dizziness,’ could not ‘think’ or ‘concentrate,’ was ‘very irritated and agitated,’ and ‘craved cigarettes very badly.’ She and Leonard ‘fought and bickered’ until they went back to smoking. According to plaintiff’s expert Neal Benowitz, who analyzed Whiteley’s smoking history and behavior under the ‘Fagerstrom Dependence Questionnaire,’ Whiteley was ‘highly addicted.’² (Whiteley I, supra, 117 Cal.App.4that p. 644.) Also opining that “Leslie was so addicted to cigarettes that it made it extremely difficult for her to try and quit,” was her pregnancy doctor, Jeffrey Randa Richardson. Richardson also testified that Whiteley was “not a sophisticated person. She was fairly simplistic” and in his opinion, “a lot of things were kind of beyond her ability to grasp how important they were.”

2 “We are using the term ‘addicted’ as shorthand. We do not here declare as a judicial fact that tobacco is addictive in any settled medical sense. That question is not before us. The jury could find that tobacco was addictive in the sense supported by the evidence and supportive of the judgment.” (Whiteley I, supra, 117 Cal.App.4that p. 644, fn. 5.)

On one occasion Whiteley’s husband, Leonard, was told by his doctor that he was on the “fast track to emphysema” if he did not quit smoking. When he mentioned this to Whiteley, she replied that she didn’t need to quit. She was healthy, and smoked a different kind of cigarette than he did. Otherwise, Leonard did not discuss any dangers of smoking with her. He also testified that in the community one would hear both sides arguing different issues and when he was a smoker, he “didn’t really think about it.” He testified that he heard “pros and cons in newspaper articles and papers and radio programs, TV programs, where you’d hear people talking both sides of the issue.” He would hear “one group of people... saying one thing, scientifically,... and then the other side saying, no, that’s not supported. It’s not accurate science or... [i]t’s bad, junk science.” He thought this latter view was being communicated by the tobacco company. Thus, although he heard warnings about health hazards of smoking, he did not believe them at the time. He heard contrary information from the tobacco companies through different means, such as ads, talk shows, magazines, and sports figures. He believed the information was coming from the tobacco companies and he believed them, because he was using the product. In hindsight, he was addicted and believed the side that supported his using the product. However, he and Whiteley did not think of it in those terms at the time. “It’s just something that you do.” Leonard, too, believed one could get a cough from smoking. He did not believe it could cause lung cancer or death. He understood that emphysema would make his cough worse.

“Whiteley continued to smoke until February 1998, when she suffered an acute bronchitis episode, which her doctor told her would persist chronically if she did not stop smoking. She nevertheless tried to smoke on the way home from the doctor, but could not breathe.” (Whiteley I, supra, 117 Cal.App.4th at p. 644.) Whiteley first understood that smoking could cause serious disease in June 1998, when the doctor told her she had lung cancer. “Whiteley died on July 3, 2000, at the age of 40.” (Ibid.)

B. The False Controversy

On appeal, defendants do not dispute that smoking cigarettes causes lung cancer or that smoking cigarettes caused Whiteley’s lung cancer. Nor do they challenge the sufficiency of the evidence that by the mid-1950’s medical authorities agreed and the tobacco industry (including these defendants) knew and admitted privately that smoking causes lung cancer. By the mid-1950’s there was a consensus in the scientific community that cigarette smoking was a cause of lung cancer. By 1957, all serious scientists had accepted that cigarette smoking was the most important cause of lung cancer.

In 1953, sales of cigarettes dropped, following the release of scientific studies showing a link between cigarette smoking and lung cancer, and wide publicity that cigarette smoking was a cause of lung cancer. According to witness Kenneth Michael Cummings, an expert in health behavior and health education, who had reviewed masses of internal tobacco industry documents, “the cigarette companies were quite concerned about how the public would respond to the information from the Surgeon General and the other health groups and, basically, mounted... a public relations campaign to counter that information by creating doubt and providing an illusion... of controversy about the smoking-and-health issue.” Defendants and other cigarette manufacturers agreed to act together to counter mounting scientific evidence of the health risks of cigarette smoking. The cigarette industry launched a massive public relations campaign to reassure smokers and the general public that it was safe to smoke and that there was no evidence of a health hazard. As a result of the public relations effort, cigarette consumption increased.

A major part of this strategy was the creation in 1953 of an independent “research institute” that the public was told would attempt to find the truth about smoking and health. This research arm, the Tobacco Industry Research Committee (later renamed the Council for Tobacco Research (hereafter TIRC or CTR)), was in fact “ ‘an industry shield.’ ” It provided advice and technical information as needed at court trials, supplied spokespersons for the industry, and a base for introduction of witnesses. TIRC was formed in 1953 by the major cigarette companies, including defendants here. The governing committee was made up of tobacco executives, including those representing defendants. The public relations campaign included not only advertising, but articles appearing to come from independent sources. It included press releases claiming that TIRC intended to research the health issues surrounding cigarette smoking, which in turn were picked up and published by newspapers and other media. The campaign was approved by both defendants. The public relations firm of Hill and Knowlton was hired to conduct the campaign. In April 1955, a report was prepared detailing the activities that had been conducted through TIRC on behalf of the cigarette manufacturers to that date. From 1953 through 1958, the recommendations of Hill and Knowlton were put into effect on behalf of the tobacco industry. Defendants were on the committee that determined whether to accept or reject the Hill and Knowlton proposals. All suggestions that Hill and Knowlton made were carried out.

The Tobacco Institute (TI) was split off from TIRC in 1958, following a July 30, 1957 letter from Edward Darr, president of defendant R.J. Reynolds, to the president of American Tobacco Company in which Darr urged the formation of a public relations entity separate from TIRC to go “on the offensive” regarding the public health claims against smoking. The purpose of TI was to handle public relations activities on behalf of the tobacco companies and specifically “[t]o counteract the health charges brought up against smoking [and] to create doubt in the public’s mind about the harm caused by cigarettes.” This was a consistent effort from TI’s formation up to the immunity period that began in 1988. A May 1, 1972 internal memo to H.R. Kornegay, the president of TI, from Fred Panzer, the vice-president of TI, acknowledged that for 20 years, the industry had employed a consistent strategy of “creating doubt about the health charge without actually denying it” and “advocating the public’s right to smoke without actually urging them to take up the practice.” The campaign to create the illusion of “controversy” about the hazards of smoking was highly effective.

The first Surgeon General’s report in 1964 was prepared by an independent committee of scientists. Each report thereafter surveyed new research and findings on the issue of smoking and cancer, and occasionally presented an overall cumulative review of research.

Referencing the first Surgeon General’s report, a January 29, 1964 Philip Morris memo from George Weisman, vice president of marketing, to Joe Cullman, president of Philip Morris, described the need, not only to create doubt and to call for further research, but also “in the near future [to] provide some answers which will give smokers a psychological crutch and self-rationale to continue smoking.” The “psychological crutch” was provided by the “massive public relations activities” at the cost of millions of dollars expended annually by TI, TIRC, CTR and the individual tobacco companies themselves, contributing to those organizations.

The activities of the tobacco industry, particularly TIRC, CTR, TI and their spokespersons, countering the Surgeon General’s reports were related in detail by Dr. David Burns, a doctor specializing in lung disease, who has worked on every Surgeon General’s report since 1975. Dr. Burns testified that from the time the U.S. Public Health Service first issued a report in 1957, linking cigarette smoking and cancer, through December 1987, the tobacco industry public relations activities “substantially interfered with communication to people about the risks of smoking and the personalization of that; that is, the acceptance by smokers that their own smoking was indeed causing them—them, as individuals, disease.” The industry published press releases and reports casting doubt on the government reports and falsely claiming the existence of a controversy that did not exist among mainstream scientists. To counter the public health information relating to smoking and disease, from 1965 through 1987, the tobacco industry waged a persistent, determined and well-funded public relations campaign that insisted the information was not complete and that the science linking cigarette smoking to serious disease and death was not definitive. This effort was widely publicized. Every time the Surgeon General’s report was mentioned in a newspaper, the last paragraph was always devoted to the tobacco industry response that none of the report was accurate. This was part of the total environment around the smoker that influences a smoker to quit or not.

Public statements, interviews and responses by executives of defendants Philip Morris and R.J. Reynolds were consistent with this message. They reiterated that the claims of a causal relationship between smoking and disease were “erroneous”; that there was no “conclusive evidence that an element in tobacco or tobacco smoke causes any human disease”; that more research was needed; and that the industry had established TIRC /CTR in a “sincere attempt to determine what harmful effects, if any, smoking might have on human health.”

On many different occasions, many different representatives of the tobacco companies, including the chief executive officer and president of defendant Philip Morris, publicly stated that if and when it was reliably shown that particular substances in smoke caused harm, they would remove the substances. In a 1954 speech, Philip Morris’s senior executive and board member Weissman stated, “I would only like to say this on behalf of officials at Philip Morris and I believe this represents the view of the other manufacturers, the jobbers, retailers, and everyone in this room: ‘If we had any thought or knowledge that in any way we were selling a product harmful to consumers, we would stop business tomorrow.’ ” In a 1976 interview, James C. Bowling, vice president of Philip Morris, urged more research and reiterated that “if anyone ever identified any ingredient in tobacco or smoke as being hazardous to human health, or being something that shouldn’t be there, we could eliminate it, but no one ever has.”

Nor was the tobacco industry, including defendants Philip Morris and R.J. Reynolds, forthcoming with information they did have that would have been helpful to the public health community. The industry had a “much more complex and sophisticated understanding of the chemical makeup of smoke,” the carcinogens present in the smoke, and the relationship of the chemicals to the production of cancer. This information would have been “completely useful” in formulating the understanding of cigarettes for preparation of the Surgeon General’s reports and in attempts to educate the public.

C. Whiteley’s Information Environment

Evidence was presented about the “information environment” in which Whiteley began smoking and continued smoking. A massive amount of public relations information was put out by TI and the cigarette companies from the time Whiteley was a preteen up to the beginning of the immunity period in 1987. It was described by Cummings as “wallpapering the environment.”

Dr. Richard Pollay, an expert in consumer behavior, testified about health claims made for cigarettes from the 1920’s through the 1940’s, and the shift in the 1950’s from explicit health claims to “health reassurances” following a Readers’ Digest article about the link between smoking and lung cancer. He testified that consumers are rarely aware of the influence of advertisements on their behavior. Advertisements before Whiteley’s birth in 1959 would have had an indirect influence on her smoking behavior, shaping the attitudes, opinions and beliefs of her parents, neighbors, and people in her community. That was the world into which she was born. Extensive national television advertising was done by defendants during the time Whiteley was growing up. Children are particularly drawn to cartoon characters and jingles are particularly memorable, planting the message in a reliable way. A substantial percentage of preteens watched the Flintstones. Defendants advertised on numerous television shows with a significant percentage of teens and preteens in the audience. Extensive cigarette advertising was also done in magazines and other periodicals of all types. By the late 1960’s, there was an upsurge in smoking by women, attributable to an upsurge in ads targeting women and the development of new brands targeted to women.

Pollay testified that the ads and television programming occurring before Whiteley began smoking in 1972 “would have had a substantial influence” on her. Their influence would have been “cumulative,” “[s]haping how she perceives cigarettes. How glamorous cigarette smoking was. The extent to which people who were engaged in athletic behavior or prestigious occupations or sports, might be smokers. What type of people smoked what types of brands. [¶] So I think as she comes into the marketplace and starts to be tempted herself, all her perceptions about smoking in general and brands in specific have been shaped by her life history of having grown up in a world dense with advertising.” When the Surgeon General’s 1980 report described the health consequences of cigarette smoking for women, TI at the same time put out its own information and report contradicting the Surgeon General. All these contradictions went into the information environment, keeping the uncertainty going. Pollay opined that it was not surprising that people were not able to identify the source of information as TIRC or TI “because the best public relations has no fingerprints on it; that is, you don’t know where it’s coming from. There’s just a story.” In fact, in his review of TIRC documents from Hill and Knowlton, there were discussions of how to get the story into mass media without leaving “fingerprints.” Moreover, he testified, that when there is a large volume of information being put into the media, is it unlikely that an individual is going to remember a specific statement from a specific source.

Although smoking is a complex behavior, nicotine is the primary, single reason people smoke. The difficulty in quitting smoking is due in large measure to the fact that smokers become addicted to nicotine. The heavier the smoker, the higher the relapse rate. Cummings testified that people tend to articulate or “parrot” what they have heard or seen from all forms of advertising and Whiteley had parroted some of these statements made by TI, TIRC and CTR. Cummings also testified that, as a nicotine cessation expert, he had never come across a smoker who had heard of TIRC, but he had heard people he was trying to help quit cigarettes make statements, similar to those expressed by Whiteley, that they believed the tobacco companies over the health community. This was not an unreasonable position and Cummings spent a considerable amount of time educating the public about the reality of such statements.

Dr. Neal Benowitz, an expert on nicotine addiction, testified that smokers begin smoking for psychosocial reasons, usually between ages 16 and 20. Very quickly, the pharmacologic effects of nicotine take over. “Nicotine has effects on your brain, and then after awhile you stop smoking even independent of your friends but by yourself for nicotine effects. Then you start having nicotine tolerance and withdrawal, and then you’re smoking for what I call the pharmacologic reasons. So it transitions from social smoking in the beginning to pharmacologic smoking.” Benowitz opined that if Whiteley had said she heard the tobacco companies saying that the link between smoking and disease had not been proven, she did not manufacture that statement. Statements that there were scientists who had not agreed that smoking caused disease and that causation was not proven were being made by tobacco companies and others related to the industry. Those statements gave the addicted cigarette smoker some means of denial in terms of their own smoking. “[A]n addictive person still needs to think that what they’re doing makes some sense... you try to find something to support your behavior. [¶] And if people are saying you should quit because it’s bad for you and you can say, ‘Well, here is a reputable source that says that’s not even proven; so, therefore, I can keep on doing what I am addicted to doing....” Benowitz testified that such addictive behavior was “really common,” particularly with regard to cigarettes.

DISCUSSION

I. Collateral Estoppel

Defendants contend that plaintiffs’ theory that Whiteley relied on false statements by defendants’ agents, TI, CTR and TIRC, was barred as a mater of collateral estoppel by the jury’s special verdict findings in Whiteley I, supra, 117 Cal.App.4th 635 , rejecting plaintiffs’ two conspiracy claims for lack of reliance. Consequently, defendants maintain the trial court erred in admitting evidence of allegedly false statements by TI, CTR and TIRC, as agents of defendants, and in refusing instructions that would have precluded the jury from imposing liability on defendants for those statements. In Whiteley I, the jury rendered two special verdicts on the conspiracy causes of action, finding that defendants “together or with other tobacco companies, or with others, enter[ed] into an agreement to misrepresent a fact [and to conceal a fact] regarding the health effects of cigarette smoking” with the intent to defraud the public, including Whiteley; that “Philip Morris and R.J. Reynolds, together or with other tobacco companies, or with others” did misrepresent such a fact and did conceal such a fact; but that Whiteley would have acted as she did if she had known of the misrepresented and concealed fact.

On appeal in Whiteley I, defendants argued that they were “entitled to a new trial on the fraud claims because the jury verdicts rendered on the three affirmative fraud claims (finding that Whiteley had justifiably ‘acted in reliance’ on the misrepresentations) were inconsistent with the verdict on the conspiracy to defraud claim[s] (finding no reliance). The trial court rejected this argument upon defendants’ new trial motion, finding the verdicts reconcilable.” (Whiteley I, supra, 117 Cal.App.4th 635, 694, italics added.) We found it unnecessary to address the inconsistent verdict claim as we “determined that a retrial [was] required in any event because of prejudicial error on the Immunity Statute issue.” (Ibid.)

On remand in this case, plaintiffs again alleged a conspiracy between the defendants and others, identified as other major cigarette makers, the tobacco industry’s “various trade associations, public relations entities, and so called ‘research’ organizations, including but not limited to” TIRC, CTR and TI, defendants’ attorneys and others. However, plaintiffs did not pursue a conspiracy theory at trial, as they had in Whiteley I. Rather, as found by the trial court in rejecting defendants’ new trial motion, plaintiffs contended that CTR, TI and TIRC were acting as defendants’ agents when they sponsored certain representations or false promises. Defendants objected to the introduction of any evidence or argument relating to statements made or actions taken by CTR, TI and TIRC on the ground, among others, that plaintiffs were collaterally estopped by the special verdict in Whiteley I from presenting the agency theory to the jury. They also sought an instruction that “[y]ou may not find that the Defendants are liable for any misrepresentation or concealment of facts regarding smoking and health that were made pursuant to an agreement between the Defendants, or between either Defendant and any other entity, such as the Tobacco Institute.” The court rejected defendants’ collateral estoppel argument, allowed the evidence, and denied defendants’ proposed limiting instruction.³

3 In rejecting defendants’ motions for judgment notwithstanding the verdict and new trial, the trial court said: “[T]he Defendants claim that this agency theory was inappropriately presented to the jury to this second trial because of collateral estoppel. This issue came up during the second trial and was rejected by the Court after full briefing and discussion. It is rejected again. There is a legal and qualitative difference between the civil conspiracy notion of the first trial and the individual liability of R.J. Reynolds in this case. Also, liability for the promises of its agents is not the same as legal responsibility as a co-conspirator, especially in light of collateral estoppel. [Citing Lucido v. Superior Court (1990) 51 Cal.3d 335, 341-343 (Lucido).]”

Although content on the previous appeal to seek a retrial of the fraud claims due to alleged inconsistency with the conspiracy special verdicts, on this appeal, defendants seek a determination that the jury’s findings of no reliance by Whiteley in connection with the conspiracy claims in Whiteley I collaterally stopped plaintiffs from pursuing an agency theory with respect to TI, CTR and TIRC on the fraud causes of action. We disagree.

“When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” (Rest.2d Judgments, § 27, p. 250.)

“Collateral estoppel is one of two aspects of the doctrine of res judicata. In its narrowest form, res judicata ‘ “precludes parties or their privies from relitigating a cause of action [finally resolved in a prior proceeding].” ’ [Citations.] But res judicata also includes a broader principle, commonly termed collateral estoppel, under which an issue ‘ “necessarily decided in [prior] litigation [may be] conclusively determined as [against] the parties [thereto] or their privies... in a subsequent lawsuit on a different cause of action.” ’ [Citation.] [¶] Thus, res judicata does not merely bar relitigation of identical claims or causes of action. Instead, in its collateral estoppel aspect, the doctrine may also preclude a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case. Moreover, because the estoppel need not be mutual, it is not necessary that the earlier and later proceedings involve the identical parties or their privies. Only the party against whom the doctrine is invoked must be bound by the prior proceeding. (Lucido[, supra,] 51 Cal.3d 335, 341...; [citations].)” (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828; accord, Smith v. ExxonMobil Oil Corp. (2007)153 Cal.App.4th 1407, 1413-1414.)

“Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.] The party asserting collateral estoppel bears the burden of establishing these requirements. [Citation.]” (Lucido, supra, 51 Cal.3d at p. 341, fn. omitted, italics added.)

“Collateral estoppel (like the narrower ‘claim preclusion’ aspect of res judicata) is intended to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment by vexatious litigation. (Lucido, supra, 51 Cal.3d 335, 343.) However, even where the minimal prerequisites for invocation of the doctrine are present, collateral estoppel ‘ “is not an inflexible, universally applicable principle; policy considerations may limit its use where the... underpinnings of the doctrine are outweighed by other factors.” ’ (Ibid., quoting Jackson v. City of Sacramento (1981) 117 Cal.App.3d 596, 603; [citation].)” (Vandenberg v. Superior Court, supra, 21 Cal.4th at p. 829.)

We review the trial court’s determination as to the applicability of collateral estoppel de novo. (Smith v. ExxonMobil Oil Corp., supra, 153 Cal.App.4th at p. 1415.)

Defendants assert that the threshold requirements of collateral estoppel are present here. At the outset, the parties debate whether the jury’s conspiracy findings were made in “former proceedings” and whether they were “final.” We need not address the parties’ contentions on these requisites, as we are convinced that defendants did not carry their burden of demonstrating that the issue of Whiteley’s non-reliance upon misrepresentations by TI, CTR, TIRC, or other trade associations was “necessarily determined” by the special verdicts in Whiteley I, finding that Whiteley would have acted as she did had she known of the misrepresentation and concealed fact that was the object of the conspiracy.

The agency theory upon which plaintiffs proceeded in the retrial of the fraud causes of action on remand (in Whiteley II), did not present identical factual issues necessarily decided by the jury in connection with the conspiracy theory in Whiteley I, supra, 117 Cal.App.4th 635 .

“The ‘identical issue’ requirement addresses whether ‘identical factual allegations’ are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. [Citation.]” (Lucido, supra, 51 Cal.3d at p. 342; see Evans v. Celotex Corp. (1987) 194 Cal.App.3d, 741, 745.) The question of coconspiracy and agency are not identical causes of action or theories of liability. Indeed, agents of a corporation cannot conspire with their corporate principal where they act in their official capacities on behalf of the corporation and not as individuals for their individual advantage. (See e.g., Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994)7 Cal.4th 503, 512, fn. 4.) Nor is the principal’s liability for the promises of its agent, the same as the legal responsibility of a coconspirator. We recognize that collateral estoppel may apply even though the causes of action are not same, where there is an identity of factual or evidentiary issues (7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 419, pp. 1064-1066), but we are not persuaded that the factual or evidentiary issues underlying the coconspiracy theory in Whiteley I, supra, 117 Cal.App.4th 635,were the same as those underlying the agency theory in Whiteley II. The special verdicts in Whiteley I did not identify either the coconspirators or the particular misrepresentations upon which the jury determined Whiteley did not rely. At the same time, the jury in Whiteley I also found Whiteley did reasonably rely upon misrepresentations and false promises made by defendants. Defendants have not shown the issues were identical.

The jury in Whiteley I, supra, 117 Cal.App.4th 635,did not “necessarily decide” that TIRC, CTR and/or TI were coconspirators with defendants. Plaintiffs in Whiteley I alleged and argued that defendants conspired with other tobacco manufacturers, their trade associations, their attorneys and others and that defendants could be liable on a conspiracy theory for the misrepresentations and concealments of these entities as coconspirators. Plaintiffs made the similar allegations in their consolidated amended complaint on retrial below, specifically identifying TIRC, TI and CTR as coconspirators. However, plaintiffs stipulated to dismissal of the conspiracy cause of action in Whiteley II, recognizing that it was not a separate cause of action, but a theory of joint liability. Plaintiffs did not pursue a conspiracy theory on retrial.

The conspiracy special verdicts in Whiteley I did not identify TI, CTR or TIRC as coconspirators, either expressly or by implication. Moreover, the questions relating to the conspiracy were phrased in the disjunctive, for example: “Question 1: Did defendants Philip Morris and R.J. Reynolds, together or with other tobacco companies, or with others, enter into an agreement to misrepresent a fact regarding the health effects of cigarette smoking at any time?” (Italics added.) The jury responded “Yes” with respect to each of the two defendants. However, the special verdicts did not disclose whether the jury found the conspirators to be only Philip Morris and R.J. Reynolds together, whether they included some or all of the other tobacco companies, or whether the undesignated “others” included the defendant’s attorneys, public relations firms, and/or TI, CTR and TIRC.

Defendants argue that the issue of these entities’ conspiracy with defendants and Whiteley’s lack of reliance on their misrepresentations and concealments was “necessarily decided” by the jury in Whiteley I, because the issue was not “entirely unnecessary” to the conspiracy special verdicts there. For collateral estoppel to apply, “[t]he courts have previously required only that the issue not have been ‘entirely unnecessary’ to the judgment in the initial proceeding. [Citations.]” (Lucido, supra, 51 Cal.3d at p. 342; see 7 Witkin, Cal. Procedure, supra, Judgment, § 432, p. 1084 [“If a finding or other determination of an issue in the first action was entirely unnecessary to the judgment, it will not have the effect of a collateral estoppel. [Citations.]”].)

Defendants concede that “where it is not possible to determine whether the jury in a prior proceeding decided a specific fact as part of its verdict, collateral estoppel does not apply. ([Rutherford v. California (1987) 188 Cal.App.3d 1267, 1285].)” Although they argue that is not the case here, we believe that is precisely the case.

On these conspiracy special verdicts in Whiteley I, supra, 117 Cal.App.4th 635, it is impossible to say that the jury found that TI, CTR and/or TIRC were coconspirators with defendants or that they conspired to make misrepresentations. Further, findings that TI, CTR and/or TIRC were coconspirators or that they conspired with defendants to make misrepresentations were entirely unnecessary to the special verdict on the conspiracy claims. This case is unlike Lucido, supra, 51 Cal.3d 335, or Evans v. Celotex Corp., supra, 194 Cal.App.3d 741, upon which defendants rely.

In Lucido, the trial court expressly found after a probation revocation hearing at which indecent exposure was the only contested issue, that the prosecution had not proved the indecent exposure allegation. (Lucido, supra, 51 Cal.3d at pp. 340-341.) It nevertheless revoked probation on the basis of the defendant’s conceded drug use. The defendant argued that the express finding at the revocation hearing that the prosecution had failed to prove its case precluded a later criminal prosecution for the same indecent exposure. (Id. at p. 339.) Although refusing to apply collateral estoppel for public policy reasons (ibid.), the Supreme Court concluded that the court’s finding was not “ ‘entirely unnecessary’ ” to the judgment modifying the terms of the probation, because all parties anticipated that the court would treat the petitioner differently with respect to probation revocation if it found he committed indecent exposure in addition to the conceded drug use. (Id. at p. 342.)

In the instant case, there is not even a finding linking TIRC, CTR or TI to the conspiracy special verdict.

In Evans v. Celotex Corp., supra, 194 Cal.App.3d 741, the appellate court held that where the plaintiff lost his asbestos personal injury suit and then died, the ensuing judgment collaterally estopped his heirs from any new lawsuit for wrongful death arising from the same injury. The court rejected the heirs’ argument that the general verdict in favor of defendant in the personal injury action did not necessarily mean that the jury found the defendant was not liable. “A general verdict implies the existence of every fact essential to support the judgment. [Citation.]” (Id. at pp. 744-745.) “[T]he prior defense verdict negatives the existence of liability of Celotex for Evans’s injuries. Plaintiffs suggest the jury could have reached their verdict on alternative bases: (1) Evans failed to prove causation; (2) Evans’s condition was not asbestos related; or (3) that the jury could not make up its mind. Each of these ‘alternatives’ conclusively establishes that Celotex is not liable for Evans’s condition. Contrary to plaintiffs’ contention, there can be no other interpretation of the jury’s general defense verdict. Accordingly, we hold that the issues in the instant action were decided in defendant’s favor in the prior adjudication and cannot be relitigated.” (Id. at p. 745.)

Of course, in Whiteley I, supra, 117 Cal.App.4th 635,there was no general verdict in favor of defendants conclusively establishing their lack of nonliability for Whiteley’s injuries. Nor were the conspiracy special verdicts such that we can conclude that the issue of Whiteley’s lack of reliance on misrepresentations or concealments made by TIRC, CTR or TI was “necessarily decided” or “not entirely unnecessary” to the verdict.

Defendants argue that there is no basis for speculation that the jury’s conspiracy finding did not include TI, CTR and TIRC, as those organizations were the focus of plaintiff’s conspiracy claim in Whiteley I, and the agreements that gave rise to the conspiracy were the 1953 agreement to create TIRC (that later became CTR) and the later agreement to create TI. However, the jury was not required to find that these three entities were members of the conspiracy in order to find that a conspiracy existed between defendants and/or other tobacco manufacturers and/or others.

The burden of proof was on defendants below to show that the requisites of collateral estoppel were present. (Lucido, supra, 51 Cal.3d at p. 341.) They failed to carry that burden. Consequently, we conclude that plaintiffs were not collaterally estopped from presenting evidence in support of the theory that Whiteley relied upon misrepresentations and concealments by TI, CTR and TIRC acting as agents of defendants.⁴

4 Our determination makes it unnecessary to address plaintiffs’ additional argument that the conspiracy verdicts in Whiteley I related only to misrepresentations of fact and that any collateral estoppel could not affect causes of action for false promises made through these entities.

II. Substantial Evidence of Agency—Control

Defendants contend that plaintiffs failed to prove that TI, CTR and TIRC were defendants’ agents. They argue that there was no evidence that either R.J. Reynolds or Philip Morris, acting individually, controlled or was capable of controlling those trade associations. (See F. Hoffman-LaRoche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 797 [“[T]he hallmark of agency is the exercise of control over the agent by the principal”].) “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” (Rest.3d Agency (2006) § 1.01.)

Defendants argue that the evidence established only that they constituted a minority of the membership of TI, CTR and TIRC, each of which could act only upon approval by a majority of members.⁵ Mere membership in an organization is not sufficient in and of itself to establish control. Nor does sponsorship alone suffice to render the sponsor the guarantor of the truth of all statements made in a publication. (See Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1035-1036 [in action for defamation based on posting of allegedly defamatory email authored by a third party, web operator’s sponsorship agreement did not give the operator practical control of editorial content but instead disclaimed control by principal].)

5 Defendants were two of 14 members of TIRC; two of at least seven members of TI; and two of at least 17 members of CTR.

“An unincorporated association member is liable for torts where the member personally participates in, authorizes, or ratifies the wrongful act. Liability for the acts of other members or third parties is based on the agency doctrine of respondeat superior. [Citations.]” (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 37,at p. 100, citing among others, Steuer v. Phelps (1974) 41 Cal.App.3d 468, 472.)

The evidence here showed that TIRC, TI and CTR were founded by defendants and a small group of tobacco manufacturers that together controlled these entities. Defendants not only participated in setting up and funding these entities, but also in approving their budgets and decisions. Each of the defendants at various times approved and ratified the statements made and actions taken by these organizations, which were created specifically for the purpose of being spokespersons for defendants and other tobacco manufacturers, and even more particularly for the purpose of changing the public’s mind about the harm caused by cigarettes, through making false promises and representations regarding the links between smoking and health. Defendants never publicly contradicted any of the false or misleading statements made by these entities. In fact, in a letter dated July 30, 1957, from the president of defendant R.J. Reynolds, Edward Darr, to the president of the American Tobacco Company, Darr affirmed that TIRC had done a good defensive job of counteracting the negative health claims about smoking and proposed the offensive public relations campaign, that resulted in the formation of TI in 1958.

Defendants heavily influenced the “independent research” the entities purported to do. For example, following the Surgeon General’s report, a 1964 memorandum from Weissman, Philip Morris vice president for marketing, to Cullman, president of Philip Morris, advised mounting a public relations campaign to counter the Surgeon General’s report by creating doubt and providing an illusion of controversy about the smoking-and-health issue. Cummings testified that a massive public relations campaign was financed by the entities and by the tobacco companies, including defendants, who funded them and who heavily influenced the so-called “independent research” TIRC and later CTR purported to do. This was the public relations program that was executed over the next decades. When defendants’ executives spoke publicly, they repeated the falsehoods put out by TI and CTR that there was no evidence that smoking was harmful, that there existed a controversy and doubt on the matter, that the tobacco industry was doing research which, if it uncovered anything harmful, would result in the harmful ingredient being removed.

The control exercised by defendants over these entities they created and maintained is illustrated by the 1964 memo from Philip Morris executive Weisman to company president Cullman, suggesting as part of the campaign to counter the Surgeon General’s report and provide smokers a “psychological crutch” to keep smoking, that a press conference should be called at which Dr. Clarence Cook Little, science director of TIRC, and other research directors and scientists would participate. The memo even detailed the “approach” that Little and the others would take, as part of a larger, overall public relations strategy. Further, the general counsel of the cigarette manufacturers, including those of defendants here, were responsible for all research funding decisions for the TIRC/CTR. The general counsel met monthly and determined which special projects to fund. The special projects typically explored alternate causations than cigarette smoking for diseases such as lung cancer. They were quoted in the White Papers issued by the entities, were another form of creating a false controversy, and gave an air of legitimacy to the alleged controversy. The industry continued to fund research in order to show they did not agree that the case against smoking was closed—funding research for public relations purposes.

Considered as a whole, the record provides substantial evidence that defendants, together with other tobacco companies, controlled TIRC, CTR and TI, that defendants approved and ratified the acts of these entities, and that these entities were agents of defendants.

III. Reliance

As they did in Whiteley I, defendants again contend that reversal of the fraud verdicts is required because there was no substantial evidence that Whiteley relied on any false promise or misrepresentation by defendants. (Whiteley I, supra, 117 Cal.App.4th at pp. 677-682.)⁶ Here, defendants contend plaintiffs’ showing of reliance was insufficient because: (1) none of the statements Whiteley heard involved a “promise”; (2) there was no evidence that any false promise or misrepresentation caused Whiteley to smoke; and (3) Whiteley’s testimony was “too vague” to support a misrepresentation claim. Defendants do not argue that Whiteley’s reliance, if any, was not reasonable.

6 In Whiteley I, defendants argued that reversal of the fraud verdicts was required because: “(1) plaintiffs failed to prove Whiteley saw or heard any specific misrepresentations of fact or false promises that defendants made, (2) plaintiffs failed to prove Whiteley actually and justifiably relied upon any such misrepresentations or false promises, and (3) the fraud verdicts were based upon a prohibited ‘fraud on the market’ theory.” (Whiteley I, supra, 177Cal.App.4th at pp. 677-678.)

A. Law of the Case

Plaintiffs contend the evidence presented on retrial below was substantially the same as that presented in Whiteley I, and that our holding that substantial evidence supported the finding of justifiable reliance in Whiteley I is “law of the case” and binding on this appeal. “Where the sufficiency of the evidence to sustain the judgment depends on the probative value or effect of the evidence itself (as distinguished from the credibility of witnesses), and there is no substantial difference in the evidence in the retrial, the former decision is law of the case. [Citations.] [¶] The evidence produced on a retrial is seldom identical to that in the first trial, and the doctrine will be applied notwithstanding insubstantial changes, e.g., where the new evidence is merely cumulative or of such slight probative value as to have no effect on an already existing conflict.... ‘Additional evidence merely cumulative to evidence of the same class given on the first appeal will not carry a question outside the operation of the rule as to the law of the case, but to successfully escape the rule a new and substantial fact must be brought into the case on the subsequent appeal.’ ([Estate of Baird (1924) 193 Cal. 225, 244].)” (9 Witkin, Cal. Procedure, supra, Appeal, § 470, p. 528; see Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, 304.)

Plaintiffs are arguably correct. The vast majority of evidence material to the issue of Whiteley’s reliance was substantially the same in the retrial below as in Whiteley I, supra, 117 Cal.App.4th 635 . This evidence included Whiteley’s deposition testimony and her husband Leonard’s testimony concerning what they saw, heard, and thought about the health risks of cigarette smoking; testimony of Whiteley’s father, mother and high school dean about the information environment in which she began and continued smoking; the testimony of plaintiff’s experts Pollay and Benowitz regarding the information environment, the addictive properties of nicotine, and the behavior of addicted smokers; and testimony regarding defendants’ conduct during the non-immunity period.

Two things militate against our relying upon law of the case here:

First, contrary to plaintiffs’ assertion, our determination that substantial evidence supported the findings of justifiable reliance by the jury in Whiteley I was based on the entire record presented in that case, including evidence that was not admitted on retrial below. Specifically, our discussion of the issue in Whiteley I, supra, 117 Cal.App.4th 635,references evidence of target marketing to youth, her viewing of “billboards where ‘everybody looked healthy, white teeth, suntans, having fun,’ ” evidence related to the manufacture and marketing of “light” cigarettes, and Whiteley’s comments that she had switched to lights in part because they had less tar and that they were “healthier” than a full-flavored cigarette. (Id. at pp. 679-680.) Our opinion in Whiteley I, also referenced the “ ‘Frank Statement to Cigarette Smokers’ ” made by the cigarette manufacturers in 1954, which was not admitted into evidence in the retrial. (Id. at p. 645.) Although less relevant to the issue of reliance, other evidence relating to defendants’ conduct during the immunity period from 1988 to 1998 was also omitted from the retrial. (See Whiteley I, at pp. 657-665.)

Second, issues of credibility—especially Whiteley’s credibility—were important to the reliance determination. It is well established that where the sufficiency of the evidence depends on the credibility of witnesses, the former decision may not be law of the case, although the evidence is substantially the same. (9 Witkin, Cal. Procedure, supra, Appeal, § 471, p. 529, citing Wallace v. Sisson (1896) 114 Cal. 42, 45.) Where “the fact... to be decided depends upon the credit to be given to the witnesses whose testimony is received, or the weight to which their testimony is entitled, or the inferences of fact that are to be drawn from the evidence, the sufficiency of the evidence to justify the decision must be determined by the tribunal before which it is presented, and is not controlled by an opinion of an appellate court that similar evidence at a former trial of the cause was insufficient to justify a similar decision.” (Wallace v. Sisson, at p. 45; accord, Eltolad Music, Inc. v. April Music, Inc. (1983) 139 Cal.App.3d 697, 704.)

Notwithstanding the inapplicability of the doctrine of law of the case to the sufficiency of the evidence question, our examination of the record on this retrial convinces us that there was substantial evidence to support the jury’s finding of reliance.

B. Standard of Review

As we recognized in Whiteley I, supra, 117 Cal.App.4th at page 678, “ ‘[W]e are bound by the rule that when “a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.” [Citations.]’ (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503.)” Defendants raising a claim of insufficiency of the evidence assume a “daunting burden.” (In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329; accord, Whiteley I, at p. 678.)

“ ‘Actual reliance occurs when a misrepresentation is “ ‘an immediate cause of [a plaintiff’s] conduct, which alters his legal relations,’ ” and when, absent such representation, “ ‘he would not, in all reasonable probability, have entered into the contract or other transaction.’ ” [Citations.] “It is not... necessary that [a plaintiff’s] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct.... It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision.” (Rest.2d Torts, § 546, com. b, p. 103.)’ (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 976-977.)” (Whiteley I, supra, 117 Cal.App.4th at p. 678; accord, In re Tobacco II Cases (2009) 46 Cal.4th 298, 326-327.)

Defendants ignore the “substantial factor” portion of the above standard, instead arguing that there was no evidence Whiteley actually heard, either directly or indirectly, specific misrepresentations or false promises. This argument, that there was insufficient evidence that Whiteley heard any of the specific misrepresentations or false promises that defendants or their agents concededly made, is a variation of the reliance argument defendants made in Whiteley I. There, defendants challenged the sufficiency of the evidence of Whiteley’s reliance on the ground “that the evidence did not show that Whiteley heard any specific misrepresentation or false promise made by either defendant.” (Whiteley I, supra, 117 Cal.App.4th at p. 680.) In Whiteley I, defendants asserted “ ‘it [was] not enough that the plaintiff heard the alleged misrepresentation at some unidentified time from some unidentified source. Instead, the plaintiff must identify a specific misrepresentation that was actually communicated to the plaintiff (directly or indirectly).’ ” (Ibid.) We rejected that contention, as have other California courts subsequently considering this question, including, recently, our Supreme Court in In re Tobacco II Cases, supra, 46 Cal.4th at pages 327-328. (See also Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 676 [“We therefore reject the contention that Bullock must prove she heard and actually relied on a specific misrepresentation and conclude that Philip Morris has not shown error”]; Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1660.) “Litigants are not free to continually reinvent their position on legal issues that have been resolved against them by an appellate court.” (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 312; accord, Joyce v. Simi Valley Unified School Dist., supra, 110 Cal.App.4th at p. 304.)

In Whiteley I, supra, 117 Cal.App.4th 635,we held: “Whiteley did not have to prove that she saw or heard any specific misrepresentations of fact or false promises that defendants made or that she heard them directly from defendants or their agents. It was sufficient that the statements were issued to the public with the intent that they reach smokers and potential smokers and that Whiteley, as a member of the intended target population, heard them. The jury was correctly instructed: ‘One who makes a misrepresentation or false promise or conceals a material fact is subject to liability if he or she intends that the misrepresentation or false promise or concealment of a material fact will be passed on to another person and influence such person’s conduct in the transaction involved.’ ‘A person has reason to expect that misrepresentation, false promise or nondisclosure of material fact will be passed on to another person and influence that person’s conduct if he or she has information that would lead a reasonable person to conclude that there is a likelihood that it will reach such person and will influence his or her conduct in the transaction involved.’ ‘Subject to liability means that the defendant is liable if all of the other essential elements of the claim of fraud are established. [¶] One who makes a misrepresentation or false promise or conceals a material fact with the intent to defraud the public or a particular class of persons is deemed to have intended to defraud every individual in that category who is actually misled thereby.’

“The Restatement Second of Torts, section 533, states the relevant principle: ‘The maker of a fraudulent misrepresentation is subject to liability... to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct in the transaction or type of transactions involved.’ (See Geernaert v. Mitchell (1995) 31 Cal.App.4th 601, 605 [‘if defendant makes the representation to a particular class of persons, he is deemed to have deceived everyone in that class’]; Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1098 [(Mirkin)] [confirming the general rule, but noting it did not apply where the plaintiff was unaware of the misrepresentation]; Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 219 [(Children’s Television)] [applying the general principle to misleading advertising], [superseded by statute on another ground, as stated in Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 227]; Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534, 1548 [following Geernaert v. Mitchell, supra, 31 Cal.App.4th 601]; cf. Gawara v. United States Brass Corp. (1998) 63 Cal.App.4th 1341, 1351, 1355 [(Gawara)] [evidence did not show indirect reliance].)

“Although defendants may not have stated unequivocally that cigarette smoking was absolutely ‘safe,’ their statements were intended to reassure smokers and potential smokers about the health hazards of smoking and to convey that safety message. That was exactly the message Whiteley received. Defendants’ and their agents’ multifarious misrepresentations regarding the unsettled state of knowledge and the unreliability of any link between cigarette smoking and serious disease were made with the intention and expectation that these misrepresentations would circulate among and influence the conduct of all smokers and prospective smokers. They were heard by or passed on to Whiteley, who believed them. When she eventually read contrary information on the cigarette label, she discounted it as being from the ‘government,’ knowing that the tobacco industry was saying it was ‘safe’ to smoke cigarettes. This brings her within the cited rule.” (Whiteley I, supra, 117 Cal.App.4th at pp. 680-682.)

Unlike the assessment of substantial evidence we have discussed above, this legal standard for evaluating the sufficiency of Whiteley’s reliance, is entitled to law of the case effect as a statement of law, necessary to our determination in Whiteley I, supra, 117 Cal.App.4th 635. Moreover, we believe it correctly states the law, as recently confirmed by the California Supreme Court in In re Tobacco II Cases, supra, 46 Cal.4th at pages 326-328. In re Tobacco II Cases cites extensively from Whiteley I, explaining that it and Boeken v. Philip Morris, Inc., supra, 127 Cal.App.4th 1640, “teach that, while a plaintiff must allege that the defendant’s misrepresentations were an immediate cause of the injury-causing conduct, the plaintiff is not required to allege that those misrepresentations were the sole or even the decisive cause of the injury-producing conduct. Furthermore, where, as here, a plaintiff alleges exposure to a long-term advertising campaign, the plaintiff is not required to plead with an unrealistic degree of specificity that the plaintiff relied on particular advertisements or statements.... Accordingly, we conclude that a plaintiff must plead and prove actual reliance... but... is not required to necessarily plead and prove individualized reliance on specific misrepresentations or false statements where, as here, those misrepresentations and false statements were part of an extensive and long-term advertising campaign.” (In re Tobacco II Cases, at p. 328, italics added; see also Bullock v. Philip Morris USA, Inc., supra, 159 Cal.App.4th at pp. 676-677 [“substance of the misinformation reached Bullock indirectly through various means and media sources and caused her to begin and to continue smoking”]; Boeken v. Philip Morris, Inc., at p. 1660 [smoker need not recall specific ad or misrepresentation upon which he relied].)

C. False Promises

Defendants contend that there was no evidence Whiteley directly or indirectly received a promise relating to the health risks of smoking. They do not contend that such promises were not made to the public in general. Rather, citing Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, and Union [Flower Market, Ltd.] v. Southern Cal[ifornia Flower Market, Inc.](1938) 10 Cal.2d 671, 676, defendants argue that a “promise” is a statement expressing an intent to engage in future conduct and that Whiteley did not claim in her testimony to have heard any statement expressing defendants’ intent to engage in future conduct. “ ‘Promissory fraud’ is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. (Union Flower Market, Ltd. v. Southern California Flower Market, Inc., [at p. 676]; see Civ. Code, § 1710, subd. (4); [5 Witkin, Summary of Cal. Law, supra, Torts § 781, pp 1131-1132].)” (Lazar v. Superior Court, at p. 638.)⁷

7 We note that neither case expressly says the false promise can only relate to an intention to engage in future conduct, as stated by defendants. In Lazar v. Superior Court, supra, 12 Cal.4th 631, the court held the plaintiff’s complaint stated a cause of action for fraudulent inducement of an employment contract. The complaint alleged that in reliance on the defendant’s promise of long-term employment and assurances of the company’s viability and future pay raises, he quit his job in New York and moved his family to Los Angeles to accept a general manager position. Lazar expressly identifies one of the false promises, made to induce him to leave his employment and come to work for defendant in California, as being that “the company was strong financially.” (Id. at p. 639, italics added.) Hence, the false promise can be as to current actions or conditions where there is the implication that the conduct will continue into the future or that a product will continue to be safe.

Defendants and their agents made numerous such false promises, including, but not limited to, promises that defendants were diligently seeking answers to questions about smoking and health and, that if any ingredient in smoking were found to be harmful, they could and would remove it; defendants would not be in the business if they thought cigarettes could harm people; defendants would cooperate fully with the health community; and defendants were engaged in and would continue to do independent scientific research to answer questions about smoking and health.

The clear implications of these and other promises made to the public were that smoking was not harmful, but that if it were found to be so, defendants would remove the harmful ingredients or get out of the business, and that they would notify both the public and the health community of their findings. (Cf. Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th 951 [actionable misrepresentation in Kaiser’s false promise to comply with the implied covenant of good faith and fair dealing by exercising good faith and reasonable diligence in providing expeditious arbitration]; Locke v. Warner Bros., Inc. (1997) 57 Cal.App.4th 354, 367-368 [action for promissory fraud may be based on implied covenant of good faith and fair dealing where studio’s agreement giving a right of first refusal to Locke’s proposals implied an intention to give proposals a good faith evaluation].)

The reassurance message sent by these and other false promises to smokers such as Whiteley was that smoking was “safe,” that the link between smoking and serious disease or death had not been established, that defendants were actively researching the health questions, and that defendants had smokers’ best interests in view and would let them know if the evidence ever showed serious risk of harm. That message was clearly received by Whiteley, who testified that she believed defendants, that they were the parties most knowledgeable about cigarettes and “what [cigarettes] did to people or didn’t do to people,” and that defendants would not sell her something that could kill her.

D. False Promise or Misrepresentation Causing Whiteley to Begin or Continue Smoking

Defendants next argue that no substantial evidence was presented that any false promise or misrepresentation by them either caused Whiteley to start smoking or caused her not to quit smoking.⁸ They contend “the only basis for imposing liability in Whiteley II is if Whiteley relied on an affirmative statement by [defendants]—a misrepresentation of fact or false promise.” We repeat, Whiteley was not required to identify any particular misrepresentation of fact or false promise upon which she relied. Substantial evidence was presented that the messages of controversy and smoking safety that defendants’ intended to convey by their statements and their entire media campaign were a substantial factor in Whiteley’s continuing to smoke. (See In re Tobacco II Cases, supra, 46 Cal.4th at pp. 327-328.)

8 We need not determine whether substantial evidence sufficed to show Whiteley relied on defendants’ false promises or misrepresentations to begin smoking. We note, however, that Pollay’s and Cummings’ testimony regarding defendants’ misinformation campaign, health reassurances, and the smoking information environment (including TV advertisements, jingles, and cartoons) surrounding Whiteley as a child and adolescent provided some circumstantial evidence, similar to that found sufficient to support a finding of reliance in Boekin v. Philip Morris, Inc., supra, 127 Cal.App.4th at pp. 1660-1663.)

Defendants’ claim boils down to the failure of Leslie to testify that she would never have begun smoking or continued smoking but for the misrepresentations and false promises of defendants and their agents. We believe the evidence before the jury was sufficient to support their finding of reliance.

Substantial evidence of reliance does not depend upon a statement by Whiteley that she never would have started smoking or that she would have stopped smoking, but for defendants’ campaign of deception. Reliance may be proved by circumstantial evidence. (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 814 [California rule is that it is unnecessary to show reliance upon false representations by direct evidence; reliance upon false representations may be inferred from the circumstances]; Bullock v. Philip Morris USA, Inc., supra, 159 Cal.App.4th at p. 676 [same]; Boeken v. Philip Morris, Inc., supra, 127 Cal.App.4th at pp. 1664-1666 [substantial evidence of reliance was shown, despite Boekin’s inability to recall particular statements made by tobacco companies other than advertisements].)

In Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th 951, the California Supreme Court rejected a similar claim that the Engalla plaintiffs had failed to demonstrate actual reliance upon the defendant Kaiser’s misrepresentations, explaining that “a presumption, or at least an inference, of reliance arises wherever there is a showing that a misrepresentation was material. [Citations.] A misrepresentation is judged to be ‘material’ if ‘a reasonable [person] would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question’ [citations], and as such materiality is generally a question of fact unless the ‘fact misrepresented is so obviously unimportant that the jury could not reasonably find that a reasonable [person] would have been influenced by it.’ [Citation.]” (Id. at pp. 976-977.) Thus, the Supreme Court explained, in the summary judgment-like proceeding before it, the plaintiffs “need only make a showing that the misrepresentations were material, and that therefore a reasonable trier of fact could infer reliance from such misrepresentations... absent evidence conclusively rebutting reliance. [Citation.]” (Id. at p. 977.) The record here contains adequate support for the jury’s findings.

It is undisputed that defendants and their agents made numerous misrepresentations of fact and false promises regarding the health effects of smoking and whether the case against smoking had been made. These representations were clearly “material.” Defendants engaged in a campaign of deception (including both misrepresentations and false promises) intended, among other things, to provide a “psychological crutch” to keep addicted smokers smoking. Plaintiffs’ experts explained the impact on smokers—particularly addicted smokers like Whiteley—of the disinformation campaign. Whiteley testified she never believed that smoking could cause serious disease or death until she was diagnosed with lung cancer. Before then, Whiteley told Leonard that she did not need to stop because she was healthy, she was skinny, she ate a good diet and she smoked a different kind of cigarette than he did. The jury could conclude from the evidence before it that until her bronchitis episode, Whiteley was not sufficiently motivated to stop smoking because she believed defendants’ claims that the case against smoking cigarettes had not been proven and because she was addicted, which made her more willing to credit defendants’ misinformation and less able to hear any contrary health messages. The jury could also find that had Whiteley believed that cigarette smoking could cause her serious disease or death, she would have made a serious and successful effort to stop smoking. After the Yosemite trip, where she and Leonard attempted and failed to stop smoking “cold turkey,” Whiteley never again made a serious attempt to stop smoking until her 1998 bronchitis episode. At that time, she was successful in her attempt to stop, as she had been successful in her attempt to stop drinking many years before. Whiteley testified that when she stopped smoking, she was on medication and slept through the worst side-effects, while Leonard used a nicotine patch. The jury could infer Whiteley cared about her health and that had she known smoking cigarettes could cause serious disease or death, she would have made a second, more serious effort to stop smoking and would have stopped long before the bronchitis episode.

Extrapolating out of context from our discussion of the negligent design issue in Whiteley I, supra, 117 Cal.App.4th 635, 694-703,defendants contend that our analysis there prevents us from concluding here that the jury could draw inferences from the evidence before it that Leslie would have stopped smoking, but for defendants’ misrepresentations and false promises. Defendants are mistaken.

In Whiteley I, supra, 117 Cal.App.4th 635,we concluded that plaintiff’s evidence on negligent design “was insufficient to support the finding that such negligence was a ‘cause’ of Whiteley’s injuries.” (Id. at p. 701.) Our focus was causation and the need for expert testimony on that issue, not whether there was substantial evidence of Whiteley’s reliance upon defendants’ misrepresentations or false promises. (See id. at pp. 698, 701-702.) The negligent design analysis centered on “whether plaintiff has shown ‘in reasonable medical probability’ that the alleged negligent design of [the cigarettes she smoked] was a substantial factor contributing to the dose of carcinogens Whiteley inhaled or ingested, and hence to her risk of developing lung cancer.” (Id. at p. 701.) “Plaintiffs’ expert witnesses did not attempt to quantify the likelihood that the asserted design defects of cigarettes, as distinguished from smoking cigarettes in general, contributed to Whiteley’s developing lung cancer. Nor did they opine that the negligent design of cigarettes was ‘in reasonable medical probability’ a substantial factor contributing to her lung cancer (or even to her risk of developing lung cancer.)” (Id. at pp. 701-702.) We stated the “expert testimony, not jury speculation” was required on the question whether the identified design defects “were more likely than not a ‘substantial factor’ contributing to Whiteley’s developing the disease.” (Id. at p. 702.)

Defendants point to our recognition that plaintiffs had failed to “cite any evidence... from which the jury could assume that, were the suggested design changes made, Whiteley would have smoked the safer cigarettes, smoked less, or quit smoking altogether. The jury could only speculate that the design, manufacture and marketing of ‘safer’ cigarettes would have resulted in Whiteley ingesting fewer carcinogens or quitting smoking altogether. Indeed, such speculation would run counter to the evidence, which showed that when Whiteley moved from unfiltered to filtered cigarettes, the number of cigarettes she smoked actually increased.” (Id. at p. 702.) Therefore, we concluded that on the record in Whiteley I, there was “simply no substantial evidence from which the jury could conclude that the negligent design of cigarettes was ‘in reasonable medical probability’ a ‘substantial factor’ contributing to Whiteley’s risk of developing lung cancer.” (Id. at p. 703.) Unlike the negligent design causation issue in Whiteley I, the question of reliance here was not one upon which expert testimony was required. Moreover, as we have discussed above, the evidence on this issue was sufficient to allow the jury to draw a reasonable inference of Whiteley’s reliance without resorting to mere speculation.

E. Evidence Was Not Too “Vague” to Show Deceit

Defendants argue that plaintiffs failed to prove any misrepresentation by defendants was directly or indirectly communicated to Whiteley. Relying upon Mirkin, supra, 5 Cal.4th 1082, defendants assert that misrepresentations must be passed on through a known chain of intermediaries and that plaintiff must establish “all the necessary links in the chain.” (Gawara, supra, 63 Cal.App.4th 1341, 1357.) Defendants further assert that there was no evidence that any statement made by defendants or their agents was actually communicated to Whiteley. This argument is a variation of defendants’ claim that plaintiffs failed to identify a specific misrepresentation that was actually communicated to Whiteley, whether directly or indirectly. We have rejected that claim as has the California Supreme Court. (See In re Tobacco II Cases, supra, 46 Cal.4th at pp. 327-328.)

Defendants appear to argue that plaintiffs must identify each link in the chain—who communicated the specific message and when and where Whiteley heard it. We have previously held that such specificity was not required in the circumstances.

Moreover, Whiteley’s inability to pinpoint the precise intermediary communicating defendants’ message of cigarette safety to her is completely in line with the evidence that defendants, their agents and others, orchestrated a campaign that would leave “no fingerprints.” Expert witness Pollay testified that it was not surprising that people could not identify the source of the cigarette safety message “because the best public relations has no fingerprints on it; that is, you don’t know where it’s coming from. There’s just a story.” Those conducting the industry’s public relations effort discussed how to get the story into the mass media without leaving “fingerprints” Moreover, as Pollay also testified, when there is a large volume of information being put into the media, is it unlikely that an individual is going to remember a specific statement from a specific source.

Defendants contend that the evidence of reliance was insufficient because there was no showing when the misrepresentations Whiteley heard were made. They argue such information was essential because plaintiffs were required to prove the statements Whiteley relied upon were made outside of the immunity period—before January 1, 1988 or after December 31, 1998. Defendants argue that the closest Whiteley could come to saying when she heard the statements was that she recalled being aware of them when she was pregnant with her first child in 1988, during the immunity period. Defendants fail to recount the evidence in the light most favorable to the prevailing party, as required by the standard of review, and they erroneously place the burden of proving that statements were made outside the immunity period on Whiteley.

Defendants cite no authority for the proposition that plaintiffs had the burden of proving any statement Whiteley relied upon was made outside the immunity period. Under the usual standard of review, the burden is upon defendants to demonstrate any reversible error in the admission of evidence. (See People v. Harvey (1991) 233 Cal.App.3d 1206, 1227; Eisenberg et al., Civil Appeals and Writs (The Rutter Group 2008) ¶¶ 8:16-8:17.1, pp. 8-5 to 8-6 [presumption of correctness].) The trial court correctly instructed the jury regarding the immunity period and we presume the jury followed that instruction.⁹ Voluminous evidence regarding defendants’ misrepresentations and conduct occurring outside the immunity period was introduced at trial. Defendants have failed to show that the jury’s finding as to Whiteley’s reliance was based upon any misstatement made by them during the immunity period.

9 The court instructed the jury: “California law provides that you may not find the defendants liable for anything that either defendant did or did not do or said or did not say either directly or through an agent, between January 1st, 1988, and December the 31st, 1997.” (Jury Instr. No. 50: No Liability 1988-1997, Exception to General Rule; see Whiteley I, supra, 117 Cal.App.4th at pp. 642, 654.)

Whiteley did testify that she could not recall a specific time when she actually heard someone representing a tobacco company saying it was safe to smoke. However, the only testimony defendants reference as occurring in the immunity period was her statement that the first time she recalled seeing the Surgeon General’s warning on a package of cigarettes when she was pregnant with her first child in 1988. She did not testify that the first time she heard that the government was making the tobacco companies put the warning on the cigarette packages was at that time. As defendants had made such statements since the inception of the warning label requirement, it is very likely Whiteley had heard their statements even before noticing the label.

IV. Statute of Limitations

Defendants contend the statute of limitations ran months before Whiteley and Leonard filed the initial lawsuit and that the trial court erred in denying defendants’ motion for nonsuit based on the running of the statute of limitations.

In a footnote in their appellants’ opening brief, defendants refer to a jury instruction they proposed on the statute of limitations and assert that the court’s failure to give the instruction constitutes a separate ground for reversing the verdict. Defendants cite no case law or other authority regarding the standard of review for jury instructions, and offer no argument as to why their instruction should have been given. An assertion of error unsupported by pertinent argument or authority is insufficient to preserve the issue on appeal. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 9:21, p. 9-6, citing Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) Defendants have waived any claim of instructional error.

A. Evidence at the Second Trial

Whiteley’s deposition testimony was presented at both the first and second trials. She testified that, in February 1998, she had what she called “chronic bronchitis” for approximately a week. It was “a cold that got worse. As the symptoms got worse, then I went to seek medical care.” She saw Dr. LaMonica one time at the Ojai Valley Community Health Center. Whiteley’s testimony continued as follows:

“Q. Did Dr. LaMonica tell you that smoking was, in his opinion, a likely cause of your chronic bronchitis?

“A. Yes.

“Q. Was your chronic bronchitis at that time, in your opinion, causing you appreciable pain?

“A. Yes, it was.

“Q. Was it causing you appreciable harm, from your standpoint?

“THE WITNESS: Harm? I was in so much pain, that’s why I made the doctor appointment, because I could not breathe. It hurt to breathe—actually breathe.

“MR. BARRON: Q. So when you

“A. I was—something was wrong with me.

“Q. So at the time you thought you were suffering some appreciable harm from what was going?

“A. I—I was sick. That’s—and that’s why I went to the doctor, I—I had been sick. My lungs were all infected, you know, you go to the doctor. Is that the answer you were

“Q. When the doctor told you he thought that smoking was a cause of this condition, did you believe that he was correct?

“A. I listened to him because he told me that at that point. Obviously I couldn’t, I—at this point I—I couldn’t breathe. I just wanted to get some medicine and get well, is why I went, and he spent the time looking at me.

“Q. You didn’t think he was lying to you, did you?

“A. He was—he told me he thought that as long as I smoked, I would have those episodes.

“Q. My question is: You didn’t think he was lying to you?

“A. Not at that point, no.

“Q. So when he told you that he thought that smoking was a cause, you believed him, didn’t you?

“A. At that—at that point, I don’t know what I believed. I just wanted to get the pain taken care of.

“Q. What did he tell you, or what did you learn while you were there, as to what ‘chronic bronchitis’ meant?

“A. He had looked at my records and seen that I had been in previously for infection in my lungs, and told me that his opinion was it was from smoking, and if I continued to smoke, that I would continue to have chronic bronchitis.

“Q. Didn’t you learn—without the exact words here being exact here, didn’t you learn that the smoking had been causing some damage to some parts of your body like the lungs or the tube that went down to the lungs?

“A. He only told me smoking causes the chronic bronchitis, that if I continued to smoke I would get it again. This is what I remember. I just told you that.

“Q. And did you understand what part of your body was being affected by the smoking to cause the chronic bronchitis?

“A. At that point my lungs hurt and I could not breathe.”

Leslie left the office and tried to smoke a cigarette in the car, but put it out after a couple of puffs because she could not breathe. After smoking one more cigarette that evening, she did not smoke again. She was put on codeine, so she slept a lot for three or four days. The medicine and antibiotics worked. The pain “lessened after taking the pain medication. And as the antibiotics started working, of course, the symptoms went away.” After the bronchitis went away she felt fine for weeks, until she began having blurred vision and muscle weakness that neither she nor her doctors initially attributed to her smoking.

Whiteley also testified she first learned that cigarettes could cause something more serious than a bad cough in an older person or not running as fast the day the doctor told her she had lung cancer in June 1998.

Leonard Whiteley testified that, in early 1998, Whiteley had a “really bad back pain [and] went to the doctor because she thought something was wrong with her back.” She told Leonard “the doctor told her that she had bronchitis—acute bronchitis or something like that—and gave her a prescription for antibiotics. [¶] And told her at that point that if she continued to smoke, the bronchitis could come back.” The pair quit smoking together. According to Leonard, Whiteley “got better from the bronchitis. And the antibiotics seemed to work so—and then by quitting smoking she seemed fine.”

Plaintiff’s addiction expert Benowitz testified at the first trial that, in February 1998, Whiteley had not chronic bronchitis, but “actually acute bronchitis, and probably the beginning of lung cancer.” (Italics added.) Benowitz testified at that time that Whiteley “stated she had severe pains in her chest, and whenever she coughed, her pains were worse. And smoking made her cough. Therefore, there was a direct relationship between smoking and her discomfort.” However, Whiteley’s perception of it was that it was bronchitis and she did not know it was lung cancer at the time.

At the retrial, Benowitz testified that Whiteley “actually was diagnosed with bronchitis,” but that the bronchitis, although neither Leslie nor her doctor knew it, was “a manifestation of her lung cancer.” He further testified that the acute symptoms of the bronchitis “generally does resolve after a few weeks.”

At the second trial, pulmonologist Dr. Barry R. Horn, an expert in lung diseases, testified as to Whiteley’s medical history, that “[i]n February 1998, [Whiteley] developed cough productive of green sputum and had some blood streaking of the sputum. She saw her primary care physician who diagnosed her as having acute bronchitis—acute inflammation of the airways with bacterial infection. And she was given an antibiotic. The sputum production subsided. She stopped coughing up blood.” He further testified that “[a]cute bronchitis is typically precipitated by viral infection. The virus comes along and injures the airway. And people develop secondary bacterial infection from the injured airway. That’s acute bronchitis. Everybody gets that.” (Italics added.) He also testified that the episode of bronchitis “cleared with antibiotics.”

In March of 1998, Whiteley began developing muscle weakness of her upper and lower extremities. She had increasing weakness over the next several months. She was referred to a neurologist and preliminarily diagnosed in June 1998, with myasthenia gravis. She then developed a recurrent cough, coughing up blood and having shortness of breath. A chest x-ray led to her hospitalization on June 20, 1998 for lung cancer.

B. Procedural Background

At the conclusion of plaintiffs’ case, defendants moved for a nonsuit on the basis that Whiteley’s lung cancer had manifested itself in February 1998, more than one year before she filed her lawsuit on April 30, 1999, outside the then applicable one-year statute of limitations for personal injury actions. (Former Code Civ. Proc., § 340, subd. (3).)¹⁰ The nonsuit motion was directed toward the estate’s survival claim and Leonard Whiteley’s loss of consortium claim. Defendants acknowledged that the wrongful death cause of action was timely, having been filed within one year of Whiteley’s death. (See former Code Civ. Proc., § 340, subd. (3).)

10 At the time the personal injury lawsuit was filed, the applicable statute of limitations was one year. (Code Civ. Proc., § 340, subd. (3).) In 2002, the limitations period was expanded to two years. (Code Civ. Proc., § 335.1; Stats. 2002, ch. 448, § 2, p. 2137.)

In the first trial, defendants had pleaded the statute of limitations. The parties at that time stipulated (on evidence that was substantially the same on this issue as that presented in the second trial) that the issue was one of law for the trial court. The trial court determined that the statute did not bar the action.¹¹ Defendants did not appeal that determination and we so acknowledged in Whiteley I, stating: “The statute of limitations is not at issue here.” (Whiteley I, supra, 117 Cal.App.4th at pp. 690-691[rejecting defendant’s claim that substantial evidence did not support the jury’s finding of justifiable reliance, and distinguishing Soliman v. Philip Morris Inc. (9th Cir. 2002) 311 F.3d 966, in part on the ground that it was decided on the pleadings on a statute of limitations defense].)

11 In his tentative ruling in the first trial, Judge Munter found that the bronchitis did not reach the level of “appreciable harm,” as Whiteley “suffered apparently an approximately two-week bout of bronchitis. She took antibiotics and cough syrup and then felt better. And in those circumstances, her injuries at that point were so insubstantial that it would be unviable for her to file suit at that time, particularly given the practicalities of litigation, including the cost of litigation.” In denying the motion, Judge Munter stated: “In order for an injury to be appreciable for purposes of starting the statute of limitations, in the court’s view it has to be substantial in the sense of being reasonable to expect a plaintiff to file a lawsuit based upon such a claim. [¶] In this situation, in February of 1998, the plaintiff was not diagnosed to have cancer, and she received no indication that her chronic bronchitis was caused by or related to any lung cancer, and she had no information to put her on notice that she was suffering from lung cancer. That diagnosis did not occur until June of 1998. Her action was filed on April 30, 1999, which was in one year of her being diagnosed as having lung cancer. [¶] So the additional point is that the word ‘appreciable’ in the law, in this court’s view, needs to be tied to the practical consideration of whether or not it is reasonable to expect somebody to bring a lawsuit in that situation. In other words, the word ‘appreciable’ means more than that you are aware that you are suffering from some kind of illness, and in this situation, chronic bronchitis not being enough to trigger a reasonable reaction of filing a lawsuit.”

In the retrial of the fraud claims, defendants again pleaded the statute of limitations defense. The trial court denied defendants’ nonsuit motion, adopting Judge Munter’s reasoning in the first trial and based on the evidence presented at the second trial, which evidence the court found was “comparable” to that before Judge Munter in the first trial.

C. Analysis

1.Plaintiffs contend that defendants were precluded from raising the statute as a defense on retrial by the trial court’s ruling in Whiteley I, that the statute of limitations did not bar the action, by defendants’ failure to assert that ruling as error in the previous appeal, and by our statement on appeal in Whiteley I, supra, 117 Cal.App.4th at pages 690-691,that the statute of limitations was not at issue. Plaintiffs also argue that defendants waived the defense, that they are estopped from raising it here, and that our acknowledgement in Whiteley I that the statute of limitations was not at issue is law of the case.

As a threshold matter, our review of the record convinces us that the evidence relevant to the statute of limitations question was substantially the same in all material respects at both trials. There is little distinction between the testimony of Dr. Benowitz in the first trial that the acute bronchitis Whiteley suffered in February 1998 was “probably the beginning of lung cancer” and his unequivocal testimony at the second trial that the acute bronchitis “was a manifestation of her lung cancer.” As plaintiffs point out, the standard for medical proof is reasonable medical probability; certainty is not required. (See Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403 [“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. Mere possibility alone is insufficient to establish a prima facie case. [Citations.]”]; Whiteley I, supra, 117 Cal.App.4th at pp. 694-703.) Dr. Benowitz’s testimony in the second trial may have been unequivocal; however, his testimony in the first trial was just as legally sufficient as to the nature of the symptoms Whiteley was suffering.

Nevertheless, the law of the case doctrine does not apply to our statement in Whiteley I that the statute was not at issue. “Under the doctrine of ‘law of the case,’ any principle or rule of law stated in an appellate court opinion that is ‘necessary’ to the court’s decision must be followed in all subsequent proceedings in the action, whether in the trial court or on a later appeal. [Citations.]” (Eisenberg et al., Civil Appeals and Writs, supra, ¶ 14:172, p. 14-64.) Our observation that the statute was not at issue was not a principle or rule of law “necessary” to our decision. We distinguished Soliman v. Philip Morris Inc., supra, 311 F.3d 966 on several grounds and found it unpersuasive for additional reasons. (Whiteley I, supra, 117 Cal.App.4th at pp. 690-691.) Furthermore, as Witkin points out, “[t]he general rule holds that the doctrine is applicable only to points raised below. In other words, stated negatively: ‘The doctrine of the law of the case (in this state) does not extend to the facts or the points of law which might have been but were not presented and determined on a prior appeal.’ [Citations.]” (9 Witkin, Cal. Procedure, supra, Appeal, § 476, p. 534.) This is particularly true where the appellate court in its opinion expressly declines to pass on the point. (Id. at p. 535.) In Whiteley I, we expressly acknowledged that the statute of limitations was not at issue. (Whiteley I, at pp. 690-691.)

Nor do we see how the doctrines of waiver or estoppel should prevent defendants from raising this claim on appeal. They pleaded the statutory bar in the case below and pursued it in the motion for nonsuit. Plaintiffs have not alleged any prejudice from the failure of defendants to appeal the trial court’s determination of the issue in Whiteley I. Nor does it appear that plaintiffs or the trial court were misled at retrial or that plaintiffs were lured into failing to present evidence relevant to the statute of limitations issue under a mistaken belief that defendants were not asserting that defense. (See Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 712; JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178; Eisenberg et al., Civil Appeals and Writs, supra, ¶¶ 8:249, pp. 8-164 to 8-165, 8:248.10, p. 8-163.)

2. Generally, the running of the statute of limitations is an affirmative defense, on which the defendant bears the burden of proof. (Samuels v. Mix (1999) 22 Cal.4th 1, 10-11; Permanente Medical Group v. Workers’ Comp. Appeals Bd. (1985) 171 Cal.App.3d 1171, 1183-1184; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2009) ¶ 8:3638.2, p. 8G-79 (Wegner).) “The rule is different under the so-called ‘delayed discovery rule,’ which postpones accrual of a cause action and hence the running of the limitations period until plaintiff discovers the injury and its cause. [Citation.]” (Wegner, ¶ 8:3638.3, p. 8G-79, citing McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160, superseded by statue on another point, as stated in Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 637, fn. 8 (Grisham).) In such cases, the plaintiff has the burden of establishing a factual basis for delayed accrual. (Wegner, ¶ 8.3638.3, p. 8G-79; see Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808-809.)

In ruling on a motion for nonsuit, the trial court is guided by certain well-established principles. “On a motion for nonsuit, the court may not weigh the evidence or consider the credibility of witnesses; instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded; further, the court must give to the plaintiff’s evidence all the value to which it is legally entitled. (Freeman v. Lind (1986) 181 Cal.App.3d 791, 798-799.)” (LaMonte v. Sanwa Bank California (1996) 45 Cal.App.4th 509, 517.)¹²

12 A motion for nonsuit “has the effect of a demurrer to the evidence: It concedes the truth of the facts proved and contends that those facts are not sufficient as a matter of law to sustain the plaintiff’s case. [Citation.] A judgment of nonsuit is an involuntary dismissal [citation] on a motion by a defendant who contends the plaintiff is unable to prove its case at trial [citation].” (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1328.)

The trial court was therefore required to consider the evidence in the light most favorable to plaintiffs in determining defendants’ nonsuit motion. So considered, we conclude the trial court did not err in denying the nonsuit.

In Davis v. Krasna (1975) 14 Cal.3d 502, the Supreme Court acknowledged that “[m]odern adjustments in limitations law,... have reflected concern for the practical needs of prospective plaintiffs. Our law has evolved, for example, to a point where the limitations clock only begins to run on certain causes of action when the injured party discovers or should have discovered the facts supporting liability. [Citations.] [¶]... [W]e generally now subscribe to the view that the period cannot run before plaintiff possesses a true cause of action, by which we mean that events have developed to a point where plaintiff is entitled to a legal remedy, not merely a symbolic judgment such as an award of nominal damages.” (Id. at pp. 512-513.) The court concluded that “although a right to recover nominal damages will not trigger the running of the period of limitation, the infliction of appreciable and actual harm, however uncertain in amount, will commence the statutory period. Under present authority, neither uncertainty as to the amount of damages nor difficulty in proving damages tolls the period of limitations.” (Id. at p. 514, italics added, fn. omitted.)¹³

13 In Davis v. Krasna, supra, 14 Cal.3d 502, the court held that assuming the plaintiff had stated a valid cause of action for breach of confidence, the statute began to run when the plaintiff discovered that the defendant had disclosed plaintiff’s story to the market, which substantially destroyed its marketability. At the point of disclosure, the plaintiff incurred actual and appreciable damage sufficient to start the running of the limitations period, even though the prospect of recovery from the defendant was speculative and uncertain. (Id. at p. 514.)

In Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 (Jolly), “the Supreme Court clarified that the rule in California is that it is not enough to commence the running of the limitations period when the plaintiff knows of her injury and its factual cause (or physical cause). Rather, the plaintiff must be aware of her injury, its factual cause, and sufficient facts to put her on inquiry notice of a negligent cause. ([Jolly,] at pp. 1110-1114.)” (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1057.) “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Jolly, at p. 1110, fn. omitted.) “A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights.” (Id. at p. 1111.)

The parties focus on this issue in the context of the rule against splitting a cause of action and the competing primary rights analyses of the courts in Martinez-Ferrer v. Richardson-Merrrell, Inc. (1980) 105 Cal.App.3d 316 (Martinez-Ferrer) and Miller v. Lakeside Village Condominium Assn. (1991) 1 Cal.App.4th 1611 (Miller) as to when the statute of limitations begins to run where a single wrongdoing gives rise to two or more different injuries, manifesting at different times. Recently, the California Supreme Court has acknowledged this split of authority on the issue of “whether and under what circumstances two different physical injuries arising out of the same wrongdoing can give rise to two separate lawsuits.” (Grisham, supra, 40 Cal.4th at p. 643.) As described by the Supreme Court in Grisham, “[s]ome courts have held that the earlier injury, even if less serious than the later injury, sets the statute running as to both injuries, and expiration of the statute on the earlier injury bars a suit on the later one. (See Miller, supra, 1 Cal.App.4th at p. 1622 [severe allergies and asthma from exposure to mold in condominium unit triggered limitations period for a later sickness of greater severity that was also caused by the initial exposure]; DeRose [v. Carswell](1987) 196 Cal.App.3d 1011, 1024, fn. 5 [injuries from rape started the limitations period for later psychological problems stemming from the rape].) Other courts have found that, under various theories, suit on a later manifesting injury was not time-barred even when suit on the earlier injury would be. (Zambrano v. Dorough (1986) 179 Cal.App.3d 169, 174 [tubal pregnancy which led to hospitalization was a different injury than later hysterectomy, even though they were both caused by problems stemming from the same misdiagnosis]; see Martinez-Ferrer[, supra, ]105 Cal.App.3d 316, 326-327 [in dicta, severe dermatitis from which plaintiff recovered after stopping the drug was a different type of injury than cataracts that developed 16 years later, even though both conditions were caused by the same drug].)” (Grisham, supra, 40 Cal.4th at p. 642.)

Grisham did not resolve this conflict, concluding that the Grisham plaintiff had alleged two different types of injury—one an economic injury and the other a serious physical injury—so that the triggering of the statute of limitations on the economic injury did not also trigger the statute for suit on the serious physical injury. (Grisham, supra, 40 Cal.4th at pp. 642-644.) This issue is now before our Supreme Court. (Pooshs v. Philip Morris USA, Inc, review granted May 20, 2009, S172023.) ¹⁴

14 On April 1, 2009, the Ninth Circuit Court of Appeals certified the question to the California Supreme Court asking it to determine: “(1) Under California law, when may two separate physical injuries arising out of the same wrong-doing be conceived of as invading two different primary rights? [¶] (2) Under California law, may two separate physical injuries—both caused by a plaintiff’s use of tobacco—be considered ‘qualitatively different’ for the purposes of determining when the applicable statute of limitations begins to run?” (Pooshs v. Philip Morris USA, Inc. (9th Cir. 2009) 561 F.3d 964.) The California Supreme Court granted review on May 20, 2009. (Pooshs v. Philip Morris USA, Inc, S172023.)

Plaintiffs argue that this case is like those “in which a toxic exposure causes two different and distinct disease processes, one less serious and earlier, and another substantially more serious and later....” They urge us to follow those cases holding that the occurrence of the first disease process does not cause the statute of limitations to commence on the second. (Zambrano v. Dorough, supra, 179 Cal.App.3d 169; Wagner v. Apex Marine Ship Management Co. (2000) 83 Cal.App.4th 1444 (Wagner) [asbestos]; see Martinez-Ferrer, supra, 105 Cal.App.3d 316 .) Defendants counter that the analysis of Zambrano v. Dorough and Martinez-Ferrer has been undermined by Miller, supra, 1 Cal.App.4th 1611, 1625,and further argue that Whiteley suffered one injury—lung cancer.

Evidence was presented that the disease process of Whiteley’s acute bronchitis was a viral infection followed by a bacterial infection, cleared up by antibiotics. Although there was evidence that the acute bronchitis was the first manifestation of Whiteley’s lung cancer, nothing here precluded the trial court from concluding that “separate and distinct” diseases or disease processes were at work. There was evidence in this case that the etiology for the less severe and earlier disease was distinct from that of the later-occurring and much more serious disease. We find more persuasive those cases holding the first and less serious disease process does not trigger the statute of limitations for the second, more serious disease. (See Martinez-Ferrer, supra, 105 Cal.App.3d 316 , Zambrano v. Dorough, supra, 179 Cal.App.3d 169,and Wagner, supra, 83 Cal.App.4th 1444.)

Were we to conclude as a matter of law that there was only one disease process and that the acute bronchitis was the first manifestation of Whiteley’s lung cancer, we would still conclude the statute of limitations did not bar the estate survival action or Leonard Whiteley’s loss of consortium claim.

We return to the basic rules relating to the running of the statute of limitations. To begin the running of the limitations period, the plaintiff must suffer “appreciable and actual harm” sufficient to entitle her to a legal remedy, not merely a symbolic judgment or an award of nominal damages (Davis v. Krasna, supra, 14 Cal.3d at pp. 512-513) and also must suspect or should suspect that her injury was caused by wrongdoing (Jolly, supra, 44 Cal.3d at p. 1110).

Defendants contend that Whiteley suffered appreciable and actual harm in February 1998, from the bout of acute bronchitis. They point to the severity of her pain when coughing, difficulty breathing, and coughing up blood, and to the testimony that this was the first manifestation of her lung cancer. On the other hand, Dr. Horn testified that acute bronchitis was typically precipitated by a virus, and developed into a bacterial infection from an injured airway. He testified that such acute bronchitis was very common, stating “everybody gets that.” The bronchitis was cleared with antibiotics and the entire episode lasted about two weeks.

The trial courts in both the first and second trials below concluded that Whiteley, at the time she was diagnosed with acute bronchitis, had not suffered injury rising to the level of “appreciable harm.” They reasoned that to be appreciable, the harm must be “substantial in the sense of being reasonable to expect a plaintiff to file a lawsuit based upon such a claim.” In February of 1998, Whiteley had not been diagnosed with cancer, and she received no indication that her bronchitis was caused by or related to any lung cancer, and she had no information to put her on notice that she was suffering from lung cancer. As Judge Munter observed in the first trial below, “In other words, the word ‘appreciable’ means more than that you are aware that you are suffering from some kind of illness....” In this situation, the court could determine Whiteley’s bronchitis was insufficient to trigger a reasonable reaction of filing a lawsuit.

We agree with the reasoning of the lower courts on this point and believe it reflects the policies described by our Supreme Court in Davis v. Krasna, supra, 14 Cal.3d 502, reflecting “concern for the practical needs of prospective plaintiffs” and “subscrib[ing] to the view that the period cannot run before plaintiff possesses a true cause of action, by which we mean that events have developed to a point where plaintiff is entitled to a legal remedy, not merely a symbolic judgment such as an award of nominal damages.” (Id. at pp. 512-513.) The trial court here could determine that despite the painful symptoms of the acute bronchitis suffered by Whiteley before her treatment with antibiotics and codeine cough syrup, the harm was not “appreciable” in the sense meant by the Supreme Court in Davis v. Krasna. In this case, it was not simply the uncertainty of the amount of damages nor the difficulty in proving damages in February 1998, that prevented the commencement of the limitations period, but rather the practical reality that Whiteley’s two week bout with bronchitis—of a type that “everybody gets”—would not have led to more than a symbolic judgment or nominal damages, at best. At that point, there was no reason for plaintiffs to believe that the bronchitis was more than a transitory infection of the type she had suffered from in the past.

There is another, independent basis for our determination. Given the transitory nature of Whiteley’s acute bronchitis, the trial court could easily conclude that, although the doctor she saw at the clinic told her that the bronchitis would return if she continued smoking, this information was entirely consistent with her understanding that smoking could cause no more than a severe cough. The court could determine that in the circumstances, Whiteley neither suspected nor should have suspected her bronchitis was caused by wrongdoing. (Jolly, supra, 44Cal.3d at p. 1110.)

Defendants rely upon Miller, supra, 1 Cal.App.4th 1611, for the proposition, among others, that the misdiagnosis of Whiteley’s condition was “of no moment.” We disagree and find Miller distinguishable. There, the court concluded that “[t]he fact that [plaintiff] Miller’s medical condition may not have been diagnosed correctly until 1986 does not delay the running of the statute of limitations under the facts of this case. [Citation.] Whatever label or diagnosis her doctors may have attached, or failed to attach, to her condition in 1983 and 1984, such diagnosis did not prevent Miller from being aware that defendant’s negligence caused her harm.” (Id. at pp. 1624-1625, italics added.) In Miller, there was no dispute “that the plaintiff had actual knowledge of the negligent cause of her 1983 and 1984 injuries at the latest by October 1984,” when she permanently moved from her condominium, following hospitalization in July 1984 for her worsening condition. (Clark v. Baxter Healthcare Corp., supra, 83 Cal.App.4th 1048, 1058, italics added, citing Miller, at p. 1624.) In October 1984, Miller’s husband wrote to the defendant stating that the flooding of the condominium caused mold, which in turn caused Miller to experience extreme allergic reactions. (Miller, at p. 1623.) Miller noted that the case “does not present the issue of belated discovery of the element of defendant’s alleged negligence or wrongdoing... and the only conclusion to be drawn from the undisputed facts is that by October 1984 Miller knew that defendant’s alleged negligent failure to repair and maintain the plumbing caused the mold, which caused her to experience allergic reactions and asthma.” (Id. at p. 1624, fn. 2.) Under the facts of the case, that Miller’s medical condition was not correctly diagnosed in 1983 and 1984 as an injury to her immune system did not delay the running of the statute of limitation where she was aware that defendant’s negligence caused her harm. (Id. at p. 1625.)

In Miller, supra, 1 Cal.App.4th 1611, the misdiagnosis had no impact upon plaintiff’s knowledge at that time that she had suffered appreciable injury because of the mold in the condominium and that the injury was attributable to the defendant’s wrongdoing. Here, in contrast, so far as Whiteley knew, she had a two-week bout of bronchitis of the type that “everybody gets”; she took medication and was better. Although the doctor told her that smoking was the cause of her bronchitis and that so long as she smoked she would have bronchitis episodes, the trial court could determine that the bronchitis suffered by Whiteley did not suffice to provide her notice that she had been appreciably harmed by defendants’ wrongdoing or notice that defendants had misled her about the serious and harmful effects of smoking.

Consequently, the trial court did not err in rejecting defendants’ statute of limitations defense or in denying defendants’ motion for nonsuit based on the statute of limitations.

DISPOSITION

The judgment is affirmed. Plaintiffs shall recover their costs on this appeal.

We concur: Haerle, J., Lambden, J.