LOPEZ v. SONY ELECTRONICS

Amicus Curiae Brief of Product Liability Advisory Council, Inc.

Cal.May 24, 2017

SUPREME COURT FILED MAY 24 2017 Jorge Navarrete Clerk Case No. $235357 haf TB 7OY Deputy IN THE SUPREME COURT CLERK SUPREME COURT OF THE STATE OF CALIFORNIA DOMINIQUE LOPEZ, by and through her guardian ad litem, Cheryl! Lopez, Plaintiff and Appellant, VS. SONY ELECTRONICS,INC., Defendant and Respondent. After a Decision by the Court of Appeal for the Second Appellate District, Division 8 Case No. B256792 On Appeal from the Superior Court for the County of Los Angeles Hon. Frederick C. Shaller Case No. BC 476544 AMICUS CURIAE BRIEF OF THE PRODUCTLIABILITY ADVISORY COUNCIL, INC. IN SUPPORT OF POSITION OF DEFENDANT/RESPONDENT SONY ELECTRONICS, INC. HUGH F. YOUNG, JR. ALAN LAZARUS(#129767) THE PRODUCT LIABILITY DRINKER BIDDLE & REATH, LLP ADVISORY COUNCIL, INC. 50 Fremont Street, 20% Floor. 1850 Centennial Park Drive, San Francisco, CA 94105 Suite 510 (415) 591-7500 Reston, VA 20191 . . (703) 264-5300 Attorneys for the Product Liability Advisory Council, Inc., Amicus Curiae Case No. $235357 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DOMINIQUE LOPEZ, by and through her guardian ad litem, Cheryl Lopez, Plaintiff and Appellant, vs. SONY ELECTRONICS, INC., Defendant and Respondent. After a Decision by the Court of Appeal for the Second Appellate District, Division 8 Case No. B256792 On Appeal from the Superior Court forthe County of Los Angeles Hon. Frederick C. Shaller Case No. BC 476544 AMICUS CURIAE BRIEF OF THE PRODUCTLIABILITY ADVISORY COUNCIL, INC. IN SUPPORTOF POSITION OF DEFENDANT/RESPONDENT SONY ELECTRONICS, INC. HUGH F. YOUNG,JR. ALAN LAZARUS (#129767) THE PRODUCT LIABILITY DRINKER BIDDLE & REATH, LLP ADVISORY COUNCIL, INC. 50 Fremont Street, 20Floor . 1850 Centennial Park Drive, San Francisco, CA 94105 Suite 510 (415) 591-7500 Reston, VA 20191 (703) 264-5300 Attorneys for the Product Liability Advisory Council, Inc., Amicus Curiae TABLE OF CONTENTS Page I. ISSUE PRESENTED 000.....cccsecsesssessessessesseesessessessseeseeeeseeees 7 II. IDENTITY AND INTEREST OF AMICUS CURIAE......7 III. NATURE OF THE CASE... cecsscsccsscsscesessesesssessvessesaeeseens 8 IV. SUMMARY OF ARGUMENT......eccsccscssesesceseesseesteeeeeseeees 9 V. DISCUSSION ......cccccecesssssssesessessessteesesesseeesessessseneesseseeee 10 A. The Nguyen Opinion Frustrates Legislative Intent By Allowing Minority Tolling For Claims Based On Prenatal Injuries And Significantly Extending The Time To File Birth Defect Claims When They Are Based On Chemical Exposures......... 10 The Second District Properly Honored The Legislature’s Intent That Minority ~ Tolling Not Be Applied To Extend The Limitations Period For Prenatal And Birth Injuries And Properly Rejected . Plaintiff's Arguments..............cceceeeceeeeneenereeeeeees 16 Prolonging The Period To File Suit For Birth Defects By Allowing Minority Tolling Would Drastically Disturb The - Balance Struck By The Legislature In Section 340.4 And Undermine The Legislature’s GoalOf Protecting . Defendants From Stale Claims Involving Alleged Birth Defect Injuries...............e eee 23 VI. CONCLUSION...eeecece eeeeeeeeeeeeeetsenneeeeeeenseeeneeeeees .27 CERTIFICATE OF COMPLIANCE...0...eeeeeeeeee 29 CERTIFICATE OF SERVICE...ccccccceeeeeeeeeteeeeeeeees 30 TABLE OF AUTHORITIES Page(s) CASES Basurto v. Imperial Irrigation Dist. (2012) 211 Cal.App.4th 866 ..........c cc cccccccceecceeeee cee seaeteeteneeeeeneeees 13 Brown v. Bleiberg (1982) B32 Cal.38d 426 20...ccccc ccccnecc eee ece sense ee eeecteeseeseeesenees 11 Chavez v. City of Los Angeles (2010) AT CalAth 970 oo...cc ccc cccccccceececceceeneceeceeeeeeseesseeenees 14 Davies v. Krasna (1975) | 14 Cal. 38d 502 ....ccccccccccccccccccssecceceeeeececeeeecenaeeeterseeeeeceetaaees 11 Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) AB3 Cal. 3d 1379 uiccecccccccccccccccssccccecceenececeeeeccsaeeeeeeesseaaeeeeees 21 Fox v. Ethicon Endo-Surgery, Inc. (2005) B35 Cal.4th 797 oc cccccccccccccssccccessesesceceeeeceseeeeeuaneeeecesseeaeeees 10 Gutterrez v. Mofid (1985) . 39 Cal 38d. 892 oo... icccccccssccceccecececesseccceaseeeceeeeceseeeenaeeees 11 Horwich v. Superior Court (1999) . 21 Cal.Ath 272 ooiceeccccccccccccccssccceccececeeecenesenseeteeeeeeeeeeaereees 19 Huysman v. Kirsch (1936) 6 Cal.2d 302...dene ceeeasseeeeecaeceeaaeees pecaeteessseaeeees 11 Larcher v. Wanless (1976) | 18 Cal.38d 646 oo...ecc cc ccccccceceeeeeeeeeeeeeeeeceeeaeenteseneseseeeees 11 McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151ccccccceceeeceeeeceerceneneeereeeeeeeees 18 In re Michael G. (1988) AA Cal.38d 283ooocceecccccccccccccecesseceseccessssceeeeeseeeeeeesesseessv.18 Miller v. Bechtel Corp. (1988) 38 Cal.38d 868.00... ccccccceccccccccceeeceeeeeeesaeeseaecseeneeeeseeeaees 11 Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal. 3d 176 ......cccccccccccccc cece ce nssssseeecceeseceeecueeceeseaenseceeaaaes 11 Nguyen v. Western Digital Corp. (2014) 229 CalApp.4th 1522 oo.cccccccccccc eee eeceeeeeeeneee passim Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 oo... cccccccccccccccccceseeseeeeceeeseeeeeeeteeeees 10, 11 Olivas v. Weiner (1954) 127 Cal.App.2d 597 .......ccccccccccccccceceeeeeeee een eeeeeeeeee 17, 22, 23 People v. Albillar (2010) BL CalAth47 oocccccccccccccccccceceeeeeceeeneeceeeeesneeereessaneeees 13 People v. Cruz (1996) 13 Cal4th 464 o..ccccccsccccssssecsssssssssessecesneeessneceesssnnneeseeeee 21 People v. Lawrence (2000) 24 CalAth 219 oo.cccccecccceeceeeceeeeeesbe ececeeceeceeeeeeeees 13 Pooshs v. Phillip Morris USA, Inc. (2011) 51 Cal.4th 788 oo... cccccceeccceceeseeeeecceeceecttssseeessteseeseee LO Regents of Univ. of Calif. v. Hartford Acc. & Indem. Co. (1978) 21 Cal. 38d 624 oo... ecccccccccccccccceecceeeaeeeceeeeceaeauaeesaaeeeees 11 Scott v. McPheeters (1939) 33 Cal.App.2d 629 oo... cccc ccc cccceeeccceececeeceeceecsesessssseeenneees 16 Stop Youth Addiction, Inc. v. Lucky Strikes Stores, Inc. (1998) 17 Cal.4th 558 oo...cece ccccc cs ecseescecenseeceeeseeeeeseeeseeseneeees 17 Van Horn v. Watson (2008) AB Cal4th 822 ooo.ccccccccececceseeceececeeeeceuecseeeeeeeeeeesenans 26 Whitfield v. Roth (1974) 10 Cal.38d 874 ......cccccccceccceccce eee neeneteeteeeeeeneeteseeseeeeeeeseneeee 11 Young v. Haines (1986) Al Cal.3d 883.00...ceecceceeeceseeeteeseteeeteeeseense 18, 20, 21 STATUTES, RULES & REGULATIONS California Civil Code § 29.0.0... ...ccccccccccceececencceeeeeeneeeeeeeeeeaeees 16 California Code of Civil Procedure § 340.4... passim California Code of Civil Procedure § 340.5 .........cc:ccceeeeeeeeee 20 California Code of Civil Procedure § 340.8 bectaeeeeeaeeeees passim California Code of Civil Procedure § 340.8(d)..............06 19 California Code of Civil Procedure § 352.0...eee. passim CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 29(c) of the Federal Rules of Appellate Procedure, amicusstates as follows: The Product Liability Advisory Council, Inc. is a non- profit association with no parent or subsidiary corporations. No publicly held company owns 10% or moreofits stock. I. ISSUE PRESENTED In an action for prenatal injury allegedly resulting from a toxic exposure, which statute of limitations apples: California Code of Civil Procedure § 340.4, which governs actions for prenatal and birth injuries, or California Code of Civil Procedure § 340.8, the limitations period for injuries caused by toxic exposure?! II. IDENTITY AND INTEREST OF AMICUS CURIAE The Product Liability Advisory Council (PLAC) is a non-profit corporation with 91 corporate members representing a broad range of American and international. manufacturers. In addition, several hundred of the leading product liability defense attorneys in the country are sustaining(i.e., non-voting) members. PLAC seeksto contribute to the improvement and reform of law in the United States and elsewhere with emphasis on the laws governing and influencingliability of product manufacturers. To that end, PLAC submits amicus curiae briefs in cases involving significant legal issues to present 1 Unless otherwise specified, all statutory references are to the Code of Civil Procedure. the broad perspective of product manufacturers, seeking fairness and balance in the development and application of the law. Since 1983, PLAC has submitted over 1100 amicus briefs in state and federal courts, including many in this Court. PLAC submits this brief to assist this Court in analyzing the issue set forth above. III. NATURE OF THE CASE This product liability/toxic tort case presents a conflict between twofacially applicable limitations statutes. One statute governs prenatal andbirth injuries (Section 340.4) and the other governs injuries caused by exposureto toxic or hazardous substances (Section 340.8). The issue is which statute prescribes the period to suefor birth defects allegedly caused by prenatal exposure to chemicals. The Second District Court of Appeal, Division 8, held that Section 340.4 sets the limitations period, thereby enforcing the express legislative direction in Section 340.4 that claims for prenatal injuries are not to be extended by tolling under Section 352. In doingso, the court disagreed with and declined to follow a contrary decision by the Sixth District, Nguyen v. Western Digital Corp. (2014) 229 Cal.App.4th 1522. This Court granted Review. 8 IV. SUMMARY OF ARGUMENT The Second District’s opinion is better reasoned and more consistent with the legislative intent. In Nguyen, the Sixth District abrogated the expressed legislative intent of Section 340.4 that actions for prenatal inj uries not be tolled during the plaintiffs minority, without any clear and | convincing basis to conclude the Legislature, in enacting Section 340.8, had changed its mind. Violating established principles of statutory interpretation, the court chose to apply a more general statute over a preexisting, narrower statute, failed to reconcile the two statutes, and disturbed the Legislature’s policy balance reflected in Section 340.4. The Second District panel got it right. The conflict between the twostatutes generated ambiguity which the court properly resolved by determining the legislative intent behind the two statutes. In doingso, the court preserved the policy balance desired by the Legislature by enforcing its prohibition on tolling and avoided reaching an absurd and unintendedresult, in the form of a drastic extension of the timeto file suit. Plaintiffs arguments for reversal are internally inconsistent, unsupported by the legislative history, and unpersuasive. This Court should affirm. V. DISCUSSION The Nguyen Opinion Frustrates Legislative Intent By AllowingMinority Tolling For Claims Based On Prenatal Injuries And Significant! Extending The Time Vo File Birth Defect Claims When They Are Based On Chemical Exposures Statutes of limitation represent a complex balancing of competing interests. Pooshs v. Phillip Morris USA, Inc. (201 1) 51 Cal.4th 788, 797. Their operation implicates several public policies, including: The right of defendantsto repose, the abhorrenceof stale claims, the impairmentof reliability in adjudication caused by the inevitable and progressive degradation or loss of evidence over time, | encouraging diligence by potential claimants, allowing sufficient time for injured parties to investigate and evaluate their legal rights, and promoting adjudication of claims on the merits. Over the years, this Court has frequently addressed issues related to the operation of limitations periods and their impact on these policies. See, e.g., Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 395 and casescited 10 therein.2 These various decisionsillustrate the importance of a carefully calibrated framework for limitations period accrual. See, e.g., Norgart, 21 Cal.4th at 396-397 (the establishment of rules affecting the length of the limitations period, such as defining the point of accrual, “entails the striking of a balance between the [applicable underlying policies].”); Gutierrez v. Mofid (1985) 39 Cal.3d 892, 900 (the issue in discovery rule accrual is whetheror not “the right to be free of stale claims ... comes to prevail over the right to prosecute them.”). | In enacting in 1941 (and later reenacting) what is now Section 340.4, the Legislature struck a balance between the policies for all cases where the plaintiffs alleged injury is inflicted at or prior to birth. The Legislature decided to confer a relatively long period to file suit, six years, but a relatively finite one, becausetolling for the plaintiffs minority (a status whichis ordinarily present in such cases) wasspecifically precluded. The linchpin of this balance was 2 See also, e.g., Miller v. Bechtel Corp. (1988) 33 Cal.3d 868 (fraud); Huysman v. Kirsch (1936) 6 Cal.2d 302 (medical negligence); Whitfield v. Roth (1974) 10 Cal.3d 874 (medical negligence); Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176 (legal negligence); Brown v. Bleiberg (1982) 32 Cal.3d 426 (medical negligence); Davies v. Krasna (1975) 14 Cal.3d 502 (breach of confidence and misappropriation); Larcher v. Wanless (1976) 18 Cal.3d 646 (wrongful death); Regents of Univ. of Calif. v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624 (construction defects). 11 the Legislature’s express determination that under no circumstances should claims for prenatal or birth injuries be extendedbytolling for the plaintiffs minority. In Nguyen, the Sixth District decided that a later- enacted statute generally governing the prescriptive period for claims of injury arising from toxic exposures, Section 340.8 — which does not exclude elongation for minority tolling — silently trumps the Legislature’s policy balance whena birth defect injury is alleged to have been caused by chemical exposure. | The core failing of Nguyen is that there is no persuasive reason to believe the Legislature intended in | Section 340.8 to alter the existing balance as to birth injury claims simply because the alleged meansof injury is a toxic exposure. The text of Section 340.4 applies without limitation to “an action by or on behalfof a minor for personal injuries sustained before or in the courseofhis or herbirth ...” Prenatal and birth injuries, whatever their cause, 1s a relatively slender specie of claims, applicable to a well- defined population of plaintiffs injured in a finite time period. This narrow sphereis the territory allotted for application of Section 340.4. This specie of claims1s not to be tolled for minority. So said the Legislature. Section 340.8, on the other hand, is more general and broad in its scope. It applies to a considerably larger 12 population of plaintiffs (anyone injured at any time by a non-asbestos chemical exposure) as long as the injuryis not predicated on medical malpractice. The statute does not address minority tolling, and such silence has been judicially interpreted to allow minority tolling for claims falling within its scope. Young v. Haines (1986) 41 Cal.3d 883, 892-93. As the Second District panel recognized, this scenario presents an areaof facial overlap, and therefore conflict, between the twostatutes — a birth defect claim allegedly caused by a toxic exposure. Under these circumstances, the role of the court is to give each statute its appropriate scope and to divine and enforce the legislative intent. People v. Albillar (2010) 51 Cal.4th 47, 54-55. The established interpretative principles are that (1) the Legislature is presumed to mean whatit says, (2) the meaning and scope of the older statute (Section 340.4) is presumed unchanged absent compelling evidence that the Legislature intended to do so, and (8) that the narrower statute is presumedto trump the broader, or more general statute. Further,(4) where two statutes can be construed to harmoniously coexist, they should be so construed. See, e.g., (1) People v. Lawrence (2000) 24 Cal.4th 219, 230-21; (2) In re Michael G. (1988) 44 Cal.3d 283, 294; (3) Basurto v. Imperial Irrigation 13 Dist. (2012) 211 Cal.App.4th 866, 882; (4) Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 986. Each of these principles leads to the conclusion that “an action by or.on behalf of a minor for personal injuries sustained before or in the course of his or her birth” shall be governed by Section 340.4 and its six year limitations period, “and the time the minoris under any disability mentioned in Section 352 shall not be excluded in computing the time limited for the commencementof the action.” They confirm that when the Legislature later enacted Section 340.8, it did not sub silentio carve out of the statute’s scope of operation birth defects from toxic exposures. e The unequivocal intent of Section 340.4 was to prescribe the limitations period governing prenatal and birth injuries, and to preclude the lengthy extension of the period that would occur if minority tolling were applied to these claims. e Section 340.4 and its predecessor predate the enactmentof Section 340.8 by 63 years. e There is no language in Section 340.8 which communicates an intentto cover claimsfor birth defects or to alter the scope of Section 340.4. e In covering only claims by individuals injured in gestation or birth, Section 340.4 is narrower in scope than Section 340.8. e The two statutes can reasonably be reconciled, by applying Section 340.4 to all claimsfor birth defects , and applying Section 340.8to all 14 injuries caused by chemical exposures occurring after the plaintiffs birth. In construing the two statutes, Nguyen overlooked the critical point that in Section 340.4, the Legislature said, unequivocally, that there should be no minority tolling as to claims for prenatal and birth injuries. By nevertheless applying Section 340.8 to such claims, it squarely contradicted that clearly expressed intent. The core difference in the decision under review is that the Second _ District recognized that intent, required a clear and compelling reason to believe the Legislature meant to change that status quo, carefully evaluated the Legislature histories, and failed to find any reason to believe the Legislature had changed course in enacting Section 340.8. That methodology is beyond reproach, and its execution here wasreliable and appropriate. In sum, nothing in Section 340.8 persuasively suggests it was intendedto invadethe territory of Section 340.4 and subject claims for prenatal injuries due to exposure to toxic substances to the drastic extension available for minority tolling. Giving both statutes their due respect, Section 340.8 applies to injuries caused by toxic exposures which occurafter the plaintiff is born andallows such claimsto be tolled while the injured plaintiff remains a minor. Section 340.4, on the other hand, continues to apply to prenatal injuries, whatever their alleged cause, and these 15 claims are subject to a longer baseline period, but one which is not radically extended by minority tolling. The Sixth District overlooked this simple solution to the statutory conflict and instead adopted a strained imputed intentto Section 340.8 which frustrates the clear and express legislative intent in Section 340.4 and impermissibly carves an unexpressed exception out of the latter. B. TheSecond District Properly Honored The Legislature’s Intent That MinorityTolling Not Be Applied To Extend The Limitations Period For PrenatalAnd Birth Injuries And Properly Rejected Plaintiffs Arzuments Thecritical flaw of the Sixth District in Nguyen (and the dissent in this case) is the failure to honor the highest principle of legislative interpretation: That the clear intent of the Legislature be enforced. The Legislature spoke clearly and purposefully when it amendedSection 340.4 in 1941. In responseto a court of appeal decision suggesting that the then-one yearstatute of limitations for prenatal and birth injuries would be tolled during the plaintiff's minority, Scott v. McPheeters (1939) 33 Cal.App.2d 629, 631, the Legislature amended then-Civil Code §29 to (1) increase the limitations period for such | claimsby factor of 6, but (2) preclude any tolling under Section 352 for the plaintiffs minority. The intent and meaning of the amendmentas to tolling was unequivocal and indisputable: 16 ... the time the minor is under an disability mentioned in Section 352 shallnot be excluded _in computing the time limited for the. commencementof the action. [§340.4] This genesis and language reflects a specific policy decision that the limitations period for prenatal and birth injury claims should be extended, but not dramatically extended by operation of minority tolling. See Olivas v. Weiner (1954) 127 Cal.App.2d 597, 599. The Legislature has never found it necessary to revisit that decision. Underthese circumstances, thelegislative intent that there be no minority tolling of claims for prenatal and birth injuries remainsclear and remainseffective, and any determination that a subsequent statute on a different subject has encroached andlimited the existing rule must clearly evince an intent to do so. Stop Youth Addiction, Inc. v. Lucky Strikes Stores, Inc. (1998) 17 Cal.4th 553, 569. Section 340.8 expresses no contrary intent and therefore does not in any way modify or diminishthe certitude or scope of the legislative. balancestruck in Section 340.4. The Second District decision in this case is based on its review of the text and history of the two statutes andits well-reasoned conclusion that Section 340.8 fails to clearly demonstrate that the Legislature intended to change direction. Section 340:8 simply yields no compelling inference that the Legislature intended to (1) shorten the baseline limitations period by four years but (2) extend the 17 period through minority tolling when the birth defect happens to be caused by chemical exposure. In addition to the clear language of Section 340.4 and the absence of any contrary language of purpose in Section 340.8, the court supported its conclusion with a straightforward application of secondary interpretative principles. Because the law abhors repeal by implication,it requires that an intent to do so be unmistakable and further requires that two conflicting statutes be harmonized and reconciled to the extent reasonably possible. An intent to partially repeal Section 340.4 could not be clearly implied from any languagein section 340.8; indeed, the actual expression of intent in the legislative history revealed the latter statute was the product of a narrow and entirely different focus — to assure application of the delayed discovery rule in toxic exposure cases and to modify operation of that rule by overruling the decision in McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151 (holding that inquiry notice triggering the limitations period under delayed discovery could be imputed based solely on media reports). Having described what it was trying to do, and having failed to mention minority tolling or prenatal claimsatall, there was simply no adequate basis to conclude that Section 340.8 was intended to modify the six decades-longrule that prenatal inj uryclaims were not subject to minority tolling. 18 As the court put it, “We are not persuaded the Legislature intended to make such a big change in such an obscure way.” The court further found that the interpretation proffered by Plaintiff (and Ngwyen and the dissent) failed to honor the mandate that the court harmonize the two statutes. Plaintiff offers no compelling reason to reverse. First, Plaintiff argues that it was improperfor the court to examine andrely on legislative history because the application of Section 340.8 to prenatal injury claimsis clear from the language of that statute. But this conspicuously violates the principle that statutes are not to be interpreted in isolation. Horwich v. Superior Court (1999) 21 Cal.4th 272, 276. The court properly looked at both statutes, found them both facially applicable to prenatal claims based on alleged toxic exposure, and recognized the obvious — that their concurrent application in this scenario potentially overlapped, generating ambiguity. Such ambiguity required the court to dig further and examine the legislative history in order to perform its fundamental mission of determining what the Legislature intended. The court did just that. Next, Plaintiff relies on Section 340.8(d)’s statement that it was not intended to changeexisting law. Butit meansjust that — it was not intendedto change the law 19 regarding the time to bring a suit for prenatal and birth injuries. It does not mean, as Plaintiff argues, that it did intend to changeall existing lawsto the extent claims involved toxic exposures. That interpretation alters the plain meaning of the language; at minimum,it falls well short of the compelling inference needed to justify a partial repeal by implication. Plaintiff further argues that Section 340.8 trumps the ‘earler statute because it is a later, narrower statute. Later it undeniably is. But as discussed above, Section 340.4 covers only a small patch of the landscape — injuries caused during the limited period of gestation and birth to a very limited class of plaintiffs. Section 340.8 purportedly covers all claims accruing at any time by any person under any circumstances, as long as it was caused in part by some sort of toxic exposure. The argument that Section 340.8 is narrower than Section 340.4 is fallacious. Nevertheless, Plaintiff maintains her argumentis supported by Young v. Haines, supra, 41 Cal.3d 883, a decision holding that prenatal and birth injury claims based on medical malpractice were governed by Section 340.5 rather than Section 340.4. But as the Second District reasoned here, Young is distinguishable becauseSection 340.5 and Section 340.8 are not alike. The medical malpractice statute was intended to broadly govern all aspects of claims for medical malpractice, unlike the limited 20 purpose of Section 340.8. And in contrast to section 340.8’s complete silence on the subject of minority tolling, the medical malpractice provision specifically addressed the accrual of minors’ claims. Young provides Plaintiff no support. Finally, Plaintiff relies on the expressio unius canon, as Section 340.8 exempts claims based on asbestosexposure and medical malpractice, but fails to expressly exempt claims for prenatal and birth injuries. Plaintiff fails to acknowledge, however,that this argumentis flatly inconsistent with her primary argument that the language of the statute clearly reveals the Legislature’s intent — makingresort to legislative history unnecessary and inappropriate. Resort to semantic inference canonslike expressio unlus 1s unnecessary and improper where the statutory languageor legislative purpose is clear. Peoplev. Cruz (1996) 13 Cal.4th 464, 782. In any event, the argument again ignoresthe clear language of Section 340.4 and thelegislative intent that minority tolling not be applied to extend the limitations period for prenatal claims. As a secondary interpretive principle, the canon is used only to determine the Legislative intent; it cannot be invoked in derogation of a knownlegislative purpose. See Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391. 2] Moreover, Plaintiff's balkanized interpretation of Section 340.8 runs afoul of another canon, because it would lead to an absurd result. Based on Plaintiff's interpretation, birth defect injury claims based on prenatal exposure to asbestos would needto befiled within one year of discovery; those based on prenatal exposureto all other toxic substances could befiled twenty years after discovery; and all other birth defect claims mustbe filed within six years of discovery. The twenty year outlier is impossible to reconcile with the intent behind the 1941 enactment of Section 340.4 (Olivas, 127 Cal.App.2d at 599), which has never been questioned. It is also absurd to believe that the Legislature intended Section 340.8 to lengthen the period to file suit for chemically-caused birth defects by almost two decades, without specifically saying so. In contrast, the Second District’s reasoning hereis persuasive. It interprets section 340.4 in a mannerthat protects and preservesthe intent of the Legislature and harmonizes the provisions of the two statutes, while avoiding an absurd consequence the Legislature did not and could not have intended. It rejects applying a canon intended to help discern legislative intent so as to defeat the expressed intent of the Legislature. Andit declines to find a repeal by implication whenthere is no compelling reason to believe that a repeal was intendedor even foreseen. This Court should affirm. 22 C. ProlongingThe Period To File Suit For Birth Defects By Allowing Minority Tolling Would Drastically Disturb The BalanceStruck By The — Legislature In Section 340.4 And Undermine The Legislature’s Goal Of Protecting Defendants From Stale Claims Involving Alleged Birth Defect Injuries As noted above, the setting of a limitations period and specifying the applicable rules of accrual andtolling are a complex blend of trade-offs among multiple factors that result in an exquisitely delicate public policy balance. It is certainly no coincidence that in 1941, at the same time the Legislature substantially extended the limitations period from one to six years,it also prohibited any tolling for the plaintiffs minority pursuant to Section 352. Section 340.4 wasthe balance struck by the Legislature based onits considered view of the applicable policy considerations. See Olivas, 127 Cal.App.2d at 599. Thus, in amendingthe statute, the Legislature made three policydeterminations: 1. Claims for injuries caused during prenatal development and birth must be brought within six years of the injury (or discovery of the injury). 2. The six year period must not be tolled for plaintiff's minority (or insanity). 3. This relatively long but relatively finite period best accommodatesthe plaintiffs right and ability to investigate and prosecute claims for prenatalor birth injuries and the defendants’ 23 rights to repose andfair, reliable adjudication, as well as the needs of the legal system. The decision in Nguyen and theposition of the dissent here, that birth defect claims based on alleged toxic exposures are governed by the nominally shorter but practically far lengthier period of Section 340.8, disrupts this balance. It encouragesplaintiffs to sit on their rights. It imposes substantial additional burdens on defendants, without meaningfully advancing — in fact, significantly compromising — their interest in legitimate and reliable dispositions on the merits. Considerthis alternative hypothetical: If Section 340.4 applies to an individual injured in utero by chemical exposure, and the injury and its cause is discovered on the plaintiff's second birthday, then the suit must be brought no later than theplaintiffs eighth birthday. But if Section 340.8 were applied to the same scenario, then the suit need not be brought until the plaintiffs twentieth birthday: Failing to enforce the Legislature’s intent to preclude ~ minority tolling lengthens the prescriptive period by twelve years, trebling the periodtofile suit and the corresponding risk of loss or degradation of evidence. Accordingly, this is not a de minimis frustration of what the Legislature intended. An already lengthy period to assert legal rights (6 years after discovery) is essentially tripled. Significant additional burdens are imposed on the 24 p o a t e o n defendant’s right of repose and ability to gather and secure critical evidence in its defense, impairing the ability ofa jury to reach a reliable determination of the truth, and ultimately producing an erosion of confidence in the fair and accurate operation of our legal system. The interest in dispositions on the merits is not meaningfully advanced whenthe adjudication is based on a degraded and incomplete evidentiary picture due in part to plaintiffs sitting on their rights. And the interest in encouraging claimants to diligently investigate and prosecute their legal rights is severely compromised. | These are not abstract or academic consequences. Product manufacturers necessarily generate a large volume of documents and information in the ordinary course of business, necessitating the setting and implementation of reasonable document retention policies. With the increasing passage of time, documents and data relevant to product safety become less and less available. To lengthen document retention periods and require manufacturers to stockpile an even greater volume of documents and information, combined with the modern demands of electronic discovery, would exponentially expand the burdensandcostsoflitigation, and consequently the cost of doing business. Perhaps more importantly, the passage of time also increases the natural attrition and mobility of the work 25 force, making the authors of documents and individuals with critical knowledge of the products and programs increasingly unavailable. There is no remedyfor the inevitable fading of memories and the loss of knowledgeable witnesses that comes with a lengthy extension of the time to sue. These tangible, real world, oppressive effects of a substantially lengthened limitations period will impact a wide array of California businesses. It is one thing for the Legislature to strike a knowing balance, to consider these concernsandfind the overall mix of policy considerations to justify these added burdens. It is quite another for the courts to impose that balance by imputingthis will to the Legislature whenit has notbeen clearly expressed, through artificial statutory construction assumptions. See Van Horn v. Watson (2008) 45 Cal.4th 322, 333 (“We do not presume that the Legislature intends, when it enacts a statute, to overthrow long-established principles of law unless such intention is clearly expressed or necessarily implied.”). Such a drastic recalibration of the implicated policy interests should not result from questionable implications drawn by a court based onlegislative silence and ambiguous statutory language, especially when the Legislature had long ago clearly and forcefully declared a contrary desire. And as the court of appeal here noted, a 26 fortiori when the Legislature’s expressed goal in enacting section 340.8 appeared directed to another issue entirely. There is no reason to believe that the result reached in Nguyen and advocated by Plaintiff is what the Legislature intended; there is compelling reasonto believe it is not. VI. CONCLUSION The court of appeal properly declined to follow Nguyen. That decision ignored the pre-existing intent of the Legislature that the period to bring claims for prenatal and birth injuries not be tolled, and the severe consequencesto the delicate balance of interests which comprise a statute of limitations. And it did so for a specie of claims where the loss of critical evidence can be devastating to truth-seeking, and the damages sought can be quite substantial. The Second District’s decision, in contrast, honors the Legislature’s intent that prenatal and birth injury claims be exempted from minority tolling and instead filed nolater than six years after the injury or the discovery of the injury andits neghgent cause. For the foregoing reasons, amicus curtae Product Liability Advisory Council, Inc. requests that this Court affirm the court of appeal and hold that prenatal and birth injury claims, whetheror not claimed to arise from exposure to a toxic substance, are governed by the six year statute of 27 limitations in section 340.4 and are not to be extended by the application of minority tolling pursuantto section 352. DATED this {6 day of May; 2017. ve DL,y f . / / | cW A o:? Y ALANJ. LAZARUS(SBN 129767) DRINKER BfDDLE & REATH LLP 50 Fremont Street, 20Floor San Francisco, CA 94105-2235 (415) 591-7551 HUGH F. YOUNG,JR. THE PRODUCT LIABILITY ADVISORY COUNCIL,INC. 1850 Centennial Park Drive, Suite 510 Reston, VA 20191 (703) 264-5300 ATTORNEYS FOR AMICUS CURIAE THE PRODUCT LIABILITY ADVISORY COUNCIL, INC. 28 CERTIFICATE OF COMPLIANCE Pursuant to California Rules of Court § 14(c)(1), the word count of the foregoing brief is 4,489 words, calculated using the word count feature of Microsoft Word 2010. Respectfully submitted, Dated: MayLé, 2017 DRINKER BIDDLE & REATH LLP a OL Lb:a L- ALAN J. LAZARUS Attorneys for Amicus Curiae PRODUCT LIABILITY ADVISORY COUNCIL, INC. 29 CERTIFICATE OF SERVICE I, CONNIE GUTIERREZ,declare that: I am at least 18 years of age, and not a party to the above-entitled action. My business address is 50 Fremont Street, 20th Floor, San Francisco, California 94105, Telephone: (415) 591-7500. On May 16, 2017, I caused to be served the following document(s): AMICUS CURIAE BRIEF OF THE PRODUCT LIABILITY ADVISORY COUNCIL, INC. IN SUPPORT OF POSITION OF DEFENDANT/RESPONDENT SONY ELECTRONICS,INC. by enclosing a true copy of (each of) said document(s) in (an) envelope(s), addressed as follows: M BY MAIL: I am readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. know that the correspondenceis deposed with the United States Postal Service on the same day this declaration was executed in the ordinary course of business. I know that the envelope was sealed, and with postage thereon fully prepaid, placed for | collection and mailing on this date, following ordinary business ractices, in the United States mail at San Francisco, alifornia. L! BYPERSONAL SERVICE: I caused such envelopesto be delivered by a messenger service by hand to the address(es) listed below: [1 BY OVERNIGHT DELIVERY: I enclosed a true copy of said document(s) in a Federal Express envelope, addressed as ollows: L! BY FACSIMILE: I caused such documentsto be transmitted by facsimile transmission and mail as indicated above. 30 SUPREME COURT OF CALIFORNI c/o Office of the Clerk , 350 McAllister Street San Francisco, CA 94102-4783 Original +13 copies via. Worldwide Messenger Service Michael B. Gurien, Esq. WATERS KRAUS & PAUL 222 North Sepulveda Boulevard Suite 1900 El Segundo, CA 90245 Attorneys for Plaintiff, Appellant, and Petitioner. Pominque Lopez 1 copy via U.S. al ~ CALIFORNIA COURT OF APPEAL Second Appellate District, Div. 8 c/o Office of the Clerk 300 South Spring Street Second Floor, North Tower Los Angeles, CA 90013-1213 1 copy via U.S. Mail The Honorable Frederick C. Shaller Los ANGELES SUPERIOR COURT c/o Office of the Clerk 111 North Hill Street Department 46 Los Angeles, CA 90012 1 copy via U.S. Mail WILLIAM A. BOSSEN MUSICK, PEELER & GARRETT LLP One Wilshire Boulevard Suite 2000 Los Angeles, CA 90017 Attorneys for Defendant Sony Electronics, Inc. I declare under penalty of perjury under the lawsof the State of California that the above is true and correct. Executed on May 16, 2017 at San Francisco, California. 88264498.2 3]