(CN) - The 9th Circuit asked the California Supreme Court to determine whether a smoker who previously suffered a tobacco-related illness could sue within a year after being diagnosed with terminal lung cancer.
Nikki Pooshs, 65, smoked from 1953 to 1991, attorney James Nevin said. She was diagnosed with chronic lung disease in 1989 and gum disease in 1990. But it wasn't until 2004, when she found out she had lung cancer, that Pooshs filed suit against big tobacco.
She claimed the companies misrepresented the dangers of smoking and hid its addictiveness.
U.S. District Judge Phyllis Hamilton dismissed her claim as time-barred, because Robinson purportedly realized that smoking was bad for her with the first diagnosis.
The 9th Circuit certified these two questions to the state Supreme Court:
(1) "Under California law, when may two separate physical injuries arising out of the same wrongdoing 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?"
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