935 F2d 273 Brown v. Kerr Glass Manufacturing Inc

935 F.2d 273

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Tyree W. BROWN, Andrea Rose, Plaintiffs-Appellants,
KERR GLASS MANUFACTURING INC., Merrell Dow Pharmaceuticals
Inc., Defendants-Appellees.

No. 89-55645.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 4, 1991.
Decided June 10, 1991.


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Tyree Brown and Andrea Rose appeal pro se1 the district court's dismissal of their action under the Consumer Product Safety Act, 15 U.S.C. Sec. 2072, as time barred. We affirm.


The Consumer Products Safety Act does not specify a period of limitations on actions brought pursuant to section 2072. We therefore apply the most closely analogous statute of limitations under state law. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 158 (1983).


The California courts have determined that an action to recover for personal injury is governed by a one-year period of limitations, Cal.Code Civ.P. Sec. 340(3), regardless of whether the claim is statutorily based. Section 340(3) "has been interpreted to be 'a special statute controlling the time within which any action covering [personal] injury may be commenced, and it prevails over the general statute applicable to actions based on "liability created by statute." ' " Jackson v. Cedars-Sinai Medical Center, 220 Cal.App.3d 1315, 1322, 269 Cal.Rptr. 877, 881 (Cal.App. 2 Dist.1990) (quoting Aetna Casualty & Surety Co. v. Pacific Gas & elec., 41 Cal.2d 785, 787, 264 P.2d 5, 6-7 (1953)). The one year limitations period applies to this action.


The present action was filed on October 25, 1988, more than 6 years after the death of Gemari Brown. Brown and Rose argue that their action is nonetheless timely because the statute of limitations did not accrue until they received the Product Safety Commission report on October 29, 1987.


While state law determines the period of limitations, federal law determines when a federal cause of action accrues. Cline v. Brusett, 661 F.2d 108, 110 (9th Cir.1981). A cause of action accrues when the plaintiff knows or should reasonably have known of the injury and its cause. Id.; In re Swine Flue Products Litig., 764 F.2d 637, 640 (9th Cir.1985). Unlike instances in which the injury is latent or potential wrongdoers cannot be identified at the time of injury, Brown and Rose should have known at the time of the accident that a potential section 2072 claim existed. Brown and Rose knew their child died as a result of accidentally ingesting the Norpramin tablets from the Kerr Glass vial. They were not required to wait until the Product Safety Commission released its report to pursue the claim. The facts necessary to support the section 2072 action could have been assembled through independent investigation and pretrial discovery. The statute of limitations period began to run on October 20, 1982.


The action is time barred unless an equitable exception preserves the claim. Because California law defines the applicable limitations period, we also apply the state's equitable exceptions. Emrich v. Touche Ross, 846 F.2d 1190, 1199 (9th Cir.1988).

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Brown and Rose argue that the limitations period was equitably tolled during the pendency of their prior state action. Section 2072 expressly provides that the remedies available under the Consumer Products Safety Act are "in addition to and not in lieu of any other remedies provided by common law or under Federal or State law." 15 U.S.C. Sec. 2072(c). At no time were Brown and Rose prevented from pursuing their section 2072 claim. That Brown and Rose elected to pursue state tort claims in a California court instead of instituting a section 2072 action does not, under California law, toll the limitations period on the section 2072 claim. See Ervin v. County of Los Angeles, 848 F.2d 1018, 1019 (9th Cir.1988), cert. denied, 489 U.S. 1014 (1989).


Finally, Brown and Rose allege that the specter of Fed.R.Civ.P. 11 sanctions prevented them from pursuing their claim within the statute of limitations. However, Brown and Rose could have established a sufficient basis for a section 2072 claim within the one year period. Rule 11 was not a barrier to timely filing.




This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3


During the course of their appeal, Brown and Rose received effective assistance from Karen Charvet and Nonna Skumanich of the University of Washington Civil Law Clinic