                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

NIKKI POOSHS,                           
                 Plaintiff-Appellant,
                  v.
PHILLIP MORRIS USA, INC.; PHILIP
MORRIS COMPANIES, INC. R.J.
REYNOLDS TOBACCO HOLDINGS,
INC.; R.J. REYNOLDS TOBACCO
COMPANY; NABISCO GROUP                         No. 08-16338
HOLDINGS CORP.; NABISCO INC.;                    D.C. No.
BROWN AND WILLIAMSON TOBACCO                3:04-cv-01221-PJH
CORPORATION, individually and as            Northern District of
successor by merger to The                      California,
American Tobacco Company and
its predecessors in interest; BRITISH         San Francisco
                                                 ORDER
AMERICAN TOBACCO COMPANY PLC;
                                            CERTIFYING THE
LORILLARD TOBACCO COMPANY;
                                              QUESTION TO
LORILLARD INC.; LIGGETT GROUP
                                               THE STATE
INCORPORATED; LIGGETT & MYERS
                                            SUPREME COURT
INC.; LIGGETT AND MYERS TOBACCO
                                             OF CALIFORNIA
COMPANY; VECTOR GROUP LTD.;
HILL & KNOWLTON INC TOBACCO
INSTITUTE, INC.; COUNCIL FOR
TOBACCO RESEARCH USA
INCORPORATED; DNA PLANT
TECHNOLOGY, CORPORATION;
SAFEWAY INC.,
              Defendants-Appellees.
                                        
                     Filed April 1, 2009




                             3899
3900            POOSHS v. PHILLIP MORRIS USA, INC.
      Before: Betty B. Fletcher and M. Margaret McKeown,
      Circuit Judges, and William T. Hart,* District Judge.


                              ORDER

PER CURIAM:

   We certify to the California Supreme Court the questions
set forth in Part II of this order. The answer to the certified
questions depend upon California law, and the answers are
determinative to the outcome of the present appeal. We find
no clear controlling precedent in the decisions of the Califor-
nia Supreme Court. The answer provided by the California
Supreme Court to the certified questions will be followed by
this court.

   All further proceedings in this case are stayed pending final
action by the California Supreme Court, and this case is with-
drawn from submission until further notice from this court. If
the California Supreme Court accepts the certified questions,
the parties shall file a joint report three months after the date
of acceptance and every three months thereafter, advising us
of the status of the proceedings. We note that this appeal was
brought before us on an expedited basis and respectfully
request that the California Supreme Court also consider an
expedited resolution in light of appellant’s terminal illness.

I.    CAPTION AND COUNSEL

     A.   CASE TITLE, NUMBER, AND DESIGNATION
          OF PETITIONER

     The caption of this case is as follows:

  *The Honorable William T. Hart, Senior District Judge for the Northern
District of Illinois, sitting by designation.
             POOSHS v. PHILLIP MORRIS USA, INC.         3901
NIKKI POOSHS,
         Plaintiff - Appellant,
  v.

PHILLIP MORRIS USA, INC.; PHILIP MORRIS COMPA-
NIES, INC. R.J. REYNOLDS TOBACCO HOLDINGS,
INC.; R.J. REYNOLDS TOBACCO COMPANY; NABISCO
GROUP HOLDINGS CORP.; NABISCO INC.; BROWN
AND WILLIAMSON TOBACCO CORPORATION, individ-
ually and as successor by merger to The American Tobacco
Company and its predecessors in interest; BRITISH AMERI-
CAN TOBACCO COMPANY PLC; LORILLARD
TOBACCO COMPANY; LORILLARD INC.; LIGGETT
GROUP INCORPORATED; LIGGETT & MYERS INC.;
LIGGETT AND MYERS TOBACCO COMPANY; VEC-
TOR GROUP LTD.; HILL & KNOWLTON INC TOBACCO
INSTITUTE,      INC.;    COUNCIL        FOR     TOBACCO
RESEARCH USA INCORPORATED; DNA PLANT TECH-
NOLOGY, CORPORATION; SAFEWAY INC.,
            Defendants - Appellees.

   The case number of this appeal is 08-16338. Nikki Pooshs
is deemed the petitioner in this request because she appealed
the district court’s ruling on these issues.

  B.   NAMES AND ADDRESSES OF COUNSEL FOR
       THE PARTIES

  For Nikki Pooshs: David Wayne Fermino, BRAYTON
PURCELL, LLP, 222 Rush Landing Road, Novato, CA
94948-6169; James P. Nevin, BRAYTON PURCELL, LLP,
222 Rush Landing Road, Novato, CA 94948-6169; Gilbert L.
Purcell, BRAYTON PURCELL, LLP, 222 Rush Landing
Road, Novato, CA 94948-6169.

  For Phillip Morris: Daniel Paul Collins, MUNGER, TOL-
LES & OLSON LLP, 35th Floor, 355 South Grand Avenue,
3902         POOSHS v. PHILLIP MORRIS USA, INC.
Los Angeles, CA 90071-1560; James Lee Dumas, SHOOK
HARDY & BACON, LLP, Suite 600, 333 Bush St., San Fran-
cisco, CA 94104-2828; Jenny Bown, SHOOK HARDY &
BACON, LLP, Suite 600, 333 Bush St., San Francisco, CA
94104-2828; Alicia J. Donahue, SHOOK HARDY &
BACON, LLP, Ste. 600, 333 Bush St., San Francisco, CA
94104-2828; Chris Johnson, Esquire, SHOOK HARDY &
BACON, LLP, Suite 600, 333 Bush St., San Francisco, CA
94104-2828.

   For R.J. Reynolds Tobacco Co.: Paul Crist, JONES DAY,
901 Lakeside Avenue, Cleveland, OH 44114; Ashlie Case,
JONES DAY, North Point 901 Lakeside Ave., Cleveland, OH
44114; Peter N. Larson, JONES DAY, 26th Floor, 555 Cali-
fornia Street, San Francisco, CA 94104.

  For Brown and Williamson Tobacco Corporation: Ashlie
Case (see above); Paul Crist (see above); Peter N. Larson (see
above).

  For Lorillard Tobacco Company: Kevin Underhill,
SHOOK HARDY & BACON, LLP, Suite 600, 333 Bush St.,
San Francisco, CA 94104-2828; Jenny Brown, Esquire,
SHOOK HARDY & BACON, LLP, Suite 600, 333 Bush St.,
San Francisco, CA 94104-2828; Alicia J. Donahue (see
above); James Lee Dumas (see above); Chris Johnson (see
above).

  For Hill & Knowlton, Inc.: Stanley G. Roman, KRIEG
KELLER SLOAN REILLEY & ROMAN, LLP, 4th Floor,
114 Sansome St., San Francisco, CA 94104; Tracy M. Clem-
ents, KRIEG KELLER SLOAN REILLEY & ROMAN, LLP,
4th Floor, 114 Sansome St. San Francisco, CA 94104.

  For DNA Plant Technology Corp.: J. Leah Castella,
MCDONOUGH HOLLAND & ALLEN PC, 9th Floor, 1901
Harrison Street, Oakland, CA 94612; Raymond C. Marshall,
                 POOSHS v. PHILLIP MORRIS USA, INC.                   3903
BINGHAM McCUTCHEN, LLP, Three Embarcadero Center,
San Francisco, CA 94111-4067.

   For Safeway, Inc.: James Lee Dumas (see above).

II.    QUESTIONS OF LAW

   By this order we certify to the California Supreme Court
for decision the dispositive1 questions of state law before us:
(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?

   Our phrasing of the questions should not restrict the Cali-
fornia Supreme Court’s consideration of the issues involved.
We will accept the decision of the California Supreme Court,
which is the highest authority on the interpretation of Califor-
nia law. Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1164 (9th
Cir. 1995) (holding that the Ninth Circuit is bound to follow
the holdings of the California Supreme Court when applying
California law).

III.   STATEMENT OF FACTS

   This diversity case arises from an injury suffered by
plaintiff-appellant Nikki Pooshs as the alleged result of smok-
ing cigarettes manufactured and marketed by defendants-
appellees. The ten remaining claims, which the parties agree
  1
   We conclude that whether Pooshs’s lawsuit can proceed at this juncture
depends entirely upon the decision provided by the California Supreme
Court. If either Pooshs’s 1989 diagnosis of chronic obstructive pulmonary
disease or her 1990 diagnosis of periodontal disease started the limitations
period for all tobacco related physical injuries, then Pooshs’s current suit
for damages caused by her terminal lung cancer will be time-barred.
3904             POOSHS v. PHILLIP MORRIS USA, INC.
are governed by the substantive law of California, are: (1)
negligence; (2) product liability; (3) misrepresentation; (4)
fraud and deceit (intentional misrepresentation); (5) fraud and
deceit (concealment); (6) fraud and deceit (false promise); (7)
fraud and deceit (negligent misrepresentation); (8) concert of
action (conspiracy); (9) pre-1969 failure to warn; and (10)
off-label failure to warn.2 On summary judgment,3 the district
court held that all of Pooshs’s claims are time-barred. See
Pooshs v. Philip Morris, USA, Inc., 2008 WL 2220422 (N.D.
Cal. May 27, 2008) (“Pooshs II”).

   For the purposes of summary judgment, the following facts
were accepted as true. Pooshs smoked tobacco products from
1953 until 1991. When Pooshs started smoking, she was
unaware of the potential impact smoking would have on her
health. The defendants’ conduct contributed to this by con-
cealing facts about the addictive nature of smoking and the
associated health hazards. In 1989, Pooshs was diagnosed
with chronic obstructive pulmonary disease (“COPD”).
Pooshs believed the COPD was caused by smoking. In 1990,
Pooshs was diagnosed with periodontal disease. Her peri-
odontist told her the disease was directly caused by smoking.
Pooshs did not bring suit against the defendants for either of
these ailments. On January 31, 2003, Pooshs was diagnosed
  2
     Counts (2), (9), and (10) were not brought against defendant Hill &
Knowlton.
   3
     The district court previously dismissed the case based on application
of the statute of limitations. See Pooshs v. Altria Group, Inc., 331 F. Supp.
2d 1089 (N.D. Cal. 2004). While that ruling was pending on appeal, the
parties jointly moved to remand the case to the district court for further
consideration in light of Grisham v. Philip Morris U.S.A., Inc., 40 Cal. 4th
623, 151 P.3d 1151 (2007). Grisham concerned certified questions from
two Ninth Circuit cases involving statute of limitations issues for tobacco-
related personal injuries. See Grisham v. Philip Morris U.S.A., 403 F.3d
631 (9th Cir. 2005) (per curiam). See also Grisham v. Philip Morris
U.S.A., 482 F.3d 1131 (9th Cir. 2007) (per curiam) (remanding appeal fol-
lowing California Supreme Court ruling on certified questions). Following
the remand of the first appeal, defendants moved for summary judgment.
               POOSHS v. PHILLIP MORRIS USA, INC.              3905
with lung cancer. It is uncontested that the etiology for lung
cancer is distinct from the etiology for COPD and periodontal
disease. Just under a year later, Pooshs filed the present suit
seeking relief for the lung cancer only. The district court held
that Pooshs’s claims were time-barred because her “aware-
ness by the early 1990s that she suffered from serious
smoking-related illnesses started the statute of limitations run-
ning as to her personal injury claim.” Pooshs v. Phillip Morris
USA, Inc., 2008 WL 2220422, 16 (N.D. Cal. 2008).

IV.   THE NEED FOR CERTIFICATION

   In Grisham v. Philip Morris, the California Supreme Court
discussed the “rule against splitting a cause of action” and its
relationship to the rule that “the infliction of appreciable and
actual harm, however uncertain in amount, will commence the
running of the statute of limitations.” 151 P.3d 1151, 1161
(Cal. 2007) (quoting Davies v. Krasna, 535 P.2d 1161 (Cal.
1975)) (internal quotes omitted). The Court recognized that
“[t]hese two rules may intersect . . . when a single wrongdo-
ing gives rise to two or more different injuries, manifesting at
different times, raising the question whether the two injuries
are invasions of two different primary rights.” Grisham, 151
P.3d at 1162. The California Supreme Court also recognized
that different courts in California have responded differently
to the issues created by the intersection of these two rules
when an earlier injury and a later injury can both be traced to
a single source. Id. Specifically, “[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.” Id.
(citing Miller v. Lakeside Vill. Condo Ass’n., 1 Cal. App. 4th
1611 (1991) (sickness from exposure to mold in condomin-
ium unit started limitations period for later sickness of greater
severity which was also caused by the initial exposure); and
DeRose v. Carswell, 196 Cal. App. 3d 1011 (1987) (injuries
from rape started limitations period for later psychological
problems stemming from the rape)). However, “[o]ther courts
3906          POOSHS v. PHILLIP MORRIS USA, INC.
have found that, under various theories, suit on a later mani-
festing injury was not time-barred even when suit on the ear-
lier injury would be.” Grisham, 151 P.3d 1162 (citing
Zambrano v. Dorough, 179 Cal. App. 3d 169, 174 (1986)
(tubal pregnancy which led to hospitalization was a “different
type” of injury than later hysterectomy even though they were
both caused by problems stemming from the same misdiagno-
sis); and Martinez-Ferrer v. Richardson-Merrell, Inc., 105
Cal. App. 3d 316, 326-327 (1980) (concluding that severe
dermatitis was a different type of injury than cataracts that
developed 16 years later even though both conditions were
caused by the same drug)).

    After recognizing this split of authority among California
courts, the California Supreme Court declined to address the
specific issue that arises in this appeal: “whether and under
what circumstances two different physical injuries arising out
of the same wrongdoing can give rise to two separate lawsuits
. . . .” Grisham, 151 P.3d at 1163. Instead, the Court resolved
the issue before it by determining that Grisham had alleged
two “different types of injury, one serious physical injury or
injuries, the other an economic injury.” Id. Consequently, the
California Supreme Court did not resolve whether two physi-
cal injuries may be thought of as invading different primary
rights, and when, if ever, two physical injuries that were both
caused by prolonged use of tobacco products may give rise to
separate limitations periods. Because the Court specifically
reserved this question, we view this case as particularly
appropriate for certification.

   The California Supreme Court’s resolution of the certified
questions will necessarily determine the outcome of Pooshs’s
pending appeal. See Cal. Rules of Court 29.8(a)(1). If the
Court decides that, under California law, either Pooshs’s 1989
diagnosis of COPD or her 1990 diagnosis of periodontal dis-
ease started the limitations period for all tobacco related phys-
ical injuries, then Pooshs’s current suit for damages caused by
her terminal lung cancer will be time-barred, and we will
              POOSHS v. PHILLIP MORRIS USA, INC.            3907
affirm the district court’s dismissal of Pooshs’s complaint.
Conversely, if the California Supreme Court concludes that
the limitations period did not begin with either of Pooshs’s
prior diagnoses, we will reverse the district court’s dismissal
of Pooshs’s claims and remand for further proceedings consis-
tent with the decision of the California Supreme Court.

V.   ACCOMPANYING MATERIALS

   The clerk of this court is directed to file in the California
Supreme Court, under official seal of the United States Court
of Appeals for the Ninth Circuit, copies of all relevant briefs
and excepts of record, and an original and ten copies of this
request with a certificate of service on the parties pursuant to
California Rules of Court 29.8(b)(1), (c), (d).

   Further proceedings before us are stayed pending the Cali-
fornia Supreme Court’s decision whether it will accept
review, and if so, our receipt in due course of the decision to
the certified questions of California law. These cases are with-
drawn from submission until further order from this court.
The panel will resume control and jurisdiction of these cases
upon receiving a decision from the California Supreme Court
or upon that court’s decision to decline to answer the certified
questions. The parties shall file a joint report informing this
court whether the California Supreme Court will decide the
certified questions, after that decision is made. If the Califor-
nia Supreme Court accepts the certified questions, the parties
shall file a joint status report to our court every three months
after the date of acceptance, or more frequently if circum-
stances warrant.

IT IS SO ORDERED.
                             PRINTED FOR
                   ADMINISTRATIVE OFFICE—U.S. COURTS
                BY THOMSON REUTERS/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
                          © 2009 Thomson Reuters/West.
