Rivas v. Safety-Kleen Corp.

Opinion

The claims of appellants Hector Rivas, his wife, Macrina, and Hector Montiel against the manufacturers and suppliers of various allegedly toxic chemicals and compounds were dismissed on statute of limitations grounds. The trial court ruled that appellants had sufficient knowledge of injury and wrongdoing for purposes of accrual of the statute of limitations more than one year prior to the dates their complaints were filed, and that all their claims, including a claim for fraudulent concealment based on failure to warn of a product defect, were subject to the one-year statute of limitations for personal injury rather than the three-year statute of limitations for fraud. Appellants contend these rulings were error. They also present the issue of whether federal law governing release of hazardous substances preempts California’s statute of limitations. We conclude that the trial court did not err in granting summary judgment and that California’s statute of limitations is not preempted. We, therefore, affirm.

Factual and Procedural Background

The Rivas and Montiel Complaints

On April 3, 1998, appellant Rivas and his wife, Macrina, filed a complaint for negligence, strict liability (failure to warn, design defect, and manufacturing defect), fraudulent concealment, breach of warranty, battery, and loss of consortium. Rivas claimed to have suffered severe damage to his kidneys, leading to a kidney transplant, as a result of exposure to toxic chemicals during his employment with Lakenor Auto & Truck Salvage Company. The defendants were respondents Safety-Kleen Corporation, Chevron U.S.A., Inc., and Union Oil Company of California. Respondents Calsol, Inc., Petro Source Refining Corporation, and Kern Oil and Refining Co. were subsequently added in place of Doe defendants. The complaint acknowledged that Rivas was diagnosed with kidney disease in 1991, but, to justify tolling the statute of limitations, alleged that he was “ignorant of the toxic cause of his [disease] until March 23, 1998.”

Appellant Montiel filed a complaint for strict product liability, negligence, and breach of express and implied warranties on April 29, 1997, and subsequently filed a first amended complaint that contained the same causes of action as the Rivas complaint. Factually, the Montiel complaint alleged that between January 1993 and January 1996, Montiel worked for Automotive Rebuild Exchange, Inc., and performed duties which included the continual use of cleaning solvents. The complaint contended that Montiel “became aware of the connection between his disease and his exposure to

have known for some time that he was suffering from a severe and progressive disorder, which was likely to cause serious debility in the future.

In its analysis, however, the court discussed not only the lack of perceptible serious trauma after the initial spill, but also the fact that the “plaintiffs [the injured worker and his wife] did not see any medical records until November 1975”; “[n]o medical person told them that the kidney problem was caused by the spill”; and “[a] specialist. . . told [the worker] to return to work but to avoid intimate contact with the chemicals temporarily.” (Pereira v. Dow Chemical Co., supra, 129 Cal.App.3d at p. 874.) The court stated that this record did not “justif[y] a conclusion, as a matter of law, that plaintiffs were or should have been aware that the kidney problem was only caused by the spill.” (Ibid.) Because “the earliest indication in the record that a component of [the chemicals to which the worker was exposed] can be both nephrotoxic and cumulative in the effect was when Valley Memorial Hospital records were subpoenaed in connection with the application for workmen’s compensation benefits in July 1975” the court believed “it was improper to conclude, as matter of law, that plaintiffs acted unreasonably or without due diligence in pursuit of their claims.” (Id. at pp. 874-875.)

Rivas seeks to construct from this language a rule precluding accrual of the statute of limitations until the injured party has been explicitly informed by his doctors that a certain substance or product caused the medical disorder or has had an opportunity to personally review medical records specifying the cause of the disorder. To the extent Pereira supports Rivas’s belief that accrual of the statute of limitations is delayed until the claimant has knowledge of specific facts establishing causation, it has been superseded by Jolly. As we have discussed, the Supreme Court specifically rejected the proposition that “the statutory clock did not begin to tick until the plaintiff knew or reasonably should have known of the facts constituting wrongful conduct, as well as the fact of her injury and its relation to [the product],” in favor of the rule that the statute of limitations begins to run when the claimant “suspects or should suspect” that his or her injury was “caused by [someone’s] wrongdoing . . . .” (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1110, fn. omitted.)

Here, Rivas was informed by his physicians in 1991 that he was suffering from a serious and debilitating condition. He was asked to provide a list of all the chemicals he came in contact with and told in no uncertain terms to keep away from the solvent he was using at work. This alone should have been sufficient to arouse a reasonable person’s suspicion and lead to further investigation. However, even were we to deem the doctor’s statements ambiguous as Rivas urges due to the fact that the kidney specialists to whom

he was referred said the etiology of his disease was “undetermined,” the fact that he filed a workers’ compensation claim in September 1996 based on exposure to toxic chemicals at work is definitive proof that he had a suspicion that “someone ha[d] done something wrong to [him]” long before his civil complaint was filed in April 1998. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1110.)

m

Appellants contend that their separate causes of action for fraudulent concealment were subject to the three-year statute of limitations for fraud (Code Civ. Proc., § 338, subd. (d)) rather than the one-year statute of limitations for personal injury. The causes of action for “fraudulent concealment” alleged that respondents were under a legal duty to disclose the toxic nature of their product and the risk of exposure to their products by labeling, and that they failed to do so.

“In ruling upon the applicability of a statute of limitations, it has been recognized that courts will look to the nature of the rights sued upon rather than to the form of action or to the relief demanded. Neither the caption, form, nor prayer of the complaint will conclusively determine the nature of the liability from which the cause of action flows. Instead, the true nature of the action will be ascertained from the basic facts . . . .” (H. Russell Taylor’s Fire Prevention Service, Inc. v. Coca Cola Bottling Corp. (1979) 99 Cal.App.3d 711 , 717 [ 160 Cal.Rptr. 411 ]; accord, Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990 , 995 [ 90 Cal.Rptr.2d 665 ].)

The essence of appellants’ claims is that they were injured by a defective product. Product liability may arise from a manufacturing defect, a defective design, or failure to warn. (6 Witkin, Summary of Cal. Law (2001 supp.) Torts, § 1247, pp. 474-475.) Although appellants’ complaints purport to assert separate and distinct causes of action for “failure to warn” and “fraudulent concealment,” the essence of both claims is that respondents’ products were defective “because they lacked warnings adequate to inform [appellants] of their toxic hazards and serious effects upon the human body, and because they lacked instructions for handling and use adequate to prevent exposures to [appellants] causing serious injury.”

The one-year statute of limitations has been applied to an action for breach of contract or breach of warranty where the alleged breach led to personal injury in cases such as Rubino v. Utah Canning Co. (1954) 123 Cal.App.2d 18 , 23 [ 266 P.2d 163 ] (holding that action against distributor of

canned food for breach of implied warranty of fitness was subject to the one-year limitation governing personal injury claims) and Cardoso v. American Medical Systems, Inc. (1986) 183 Cal.App.3d 994 [ 228 Cal.Rptr. 627 ] (where appellants’ action was for personal injury caused by a malfunctioning medical implant, one-year statute of limitations applied to their cause of action for breach of warranty). In addition, in Weinstock v. Eissler (1964) 224 Cal.App.2d 212 [ 36 Cal.Rptr. 537 ], where the plaintiff claimed brain injury from a cerebral angiogram and a spinal tap and alleged that false statements were made about the safety of the angiogram, the court held: “The one-year statute of limitations is applicable even where, as here, the plaintiff-patient alleges a cause of action for deceit based on the physician’s false representations or fraudulent concealment of the nature and extent of the injury.” (Id. at p. 227.) Similarly, in Aerojet General Corp. v. Superior Court (1986) 177 Cal.App.3d 950 [ 223 Cal.Rptr. 249 ], the plaintiffs, husband and wife, alleged that the husband’s employer concealed from the husband and the doctors trying to treat him that he was suffering from a disease caused by the ingestion and exposure to various chemicals. The court concluded that “the one-year statute of limitations provided by Code of Civil Procedure section 340, subdivision (3), provides the appropriate period of limitation.” (Aerojet General Corp., at p. 954, fn. 2.) More recently, in Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048 [ 100 Cal.Rptr.2d 223 ], where the plaintiff, a nurse, suffered a severe reaction to allegedly defective latex gloves and pled a cause of action for fraudulent concealment, the court noted: “Although [the plaintiff] argued at the summary judgment hearing at the trial court that a separate limitations period should apply to that claim (3 year, § 338), she has abandoned any such argument on appeal. That is appropriate since this is a personal injury suit to which the one-year statute clearly applies. (§ 340, subd. (3).)” (Clark, at p. 1054, fn. 2.) Thus, the weight of authority supports the trial court’s decision to apply the one-year statute of limitations to all of appellants’ claims.

Appellants point to the contrary decision in Snow v. A. H. Robins Co. (1985) 165 Cal.App.3d 120 [ 211 Cal.Rptr. 271 ], The plaintiff there had become pregnant while using the Daikon Shield birth control device. She alleged that defendants falsely represented that the device was a superior birth control device with the lowest failure rate of any other intrauterine device on the market. Her complaint further alleged that defendants knew that the failure rate was significantly higher than they represented. As can be seen from the facts, A. H. Robins was not a typical product liability case. The plaintiff did not suffer an unexpected injury as a side effect of using the product; her injury was sustained because the product did not work as it was intended. She was able to point to specific affirmative misrepresentations made by the manufacturer about the product’s effectiveness, which induced

a “facility.” Section 9658 further states that “[t]he terms used in this section shall have the same meaning as when used in" subchapter I of this chapter.” (§ 9658(b)(1).) These terms are all the subject of statutory definitions found in section 9601 of title 42 United States Code (located in subch. I) and were part of CERCLA since its original enactment in 1980. (See Pub.L. No. 96-510, tit. I, § 101(8), (9) & (22) (Dec. 11, 1980) 94 Stat. 2767 .) “The term ‘release’ means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant) . . . .” ( 42 U.S.C. § 9601 (22).)

“The term ‘environment’ means (A) the navigable waters, the waters of the contiguous zone, and the ocean water of which the natural resources are under the exclusive management authority of the United States . . . , and (B) any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.” ( 42 U.S.C. § 9601 (8).)

“The term ‘facility’ means (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.” ( 42 U.S.C. § 9601 (9).)

The statutory definition of “release” contains an express exclusion for “any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons . . . .” ( 42 U.S.C. § 9601 (22)(A).) Both sides focus on this language in their briefs. Respondents stress the language in the first part of the exclusion and contend that since the alleged exposure occurred “solely within [the] workplace,” no release occurred for purposes of CERCLA or section 9658. Appellants interpret the exclusion differently, believing that the phrase “with respect to a claim which such persons may assert against the employer of such persons” is evidence that “Congress considered whether occupational exposures constitute ‘releases’ within the meaning of CERCLA, and determined that they do, except as such might permit exposed workers to assert tort liability claims against their employers” and that “Congress determined that the occupational exposures do indeed constitute

‘releases’ for the purpose of asserting toxic tort claims against third party manufacturers . . . .”

We disagree with appellants’ interpretation. Congress could not have had in mind the needs of workers asserting toxic tort claims against third party manufacturers in 1980 when the relevant definitional provisions of CERCLA were drafted. To appreciate why, one need only review briefly CERCLA’s original purpose and effect. Congress enacted CERCLA to “initiate and establish a comprehensive response and financing mechanism to abate and control the vast problems associated with abandoned and inactive hazardous waste disposal sites.” (H.R. No. 96-1016, 96th Cong., 2d Sess., pt. 1, p. 22 (1980), reprinted in 1980 U.S. Code Cong. & Admin. News, at pp. 6119, 6125; see also 3550 Stevens Creek Assoc, v. Barclays Bank (9th Cir. 1990) 915 F.2d 1355 , 1357, quoting Pub.L. No. 96-510, supra, 94 Stat. 2767 [“CERCLA was enacted to ‘provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites.’ ”].) CERCLA “generally imposes strict liability on owners and operators of facilities at which hazardous substances were disposed. [Citations.] To promote these objectives, Congress created a private claim for certain ‘response costs’ against ‘various types of persons who contributed to the dumping of hazardous waste at a site.’ ” (3550 Stevens Creek Assoc., at p. 1357, quoting Ascon Properties, Inc. v. Mobil Oil Co. (9th Cir. 1989) 866 F.2d 1149 , 1152.) The intent behind CERCLA was not “to make injured parties whole or to create a general vehicle for toxic tort actions.” (Ambrogi v. Gould, Inc. (M.D.Pa. 1990) 750 F.Supp. 1233 , 1238; accord, Struhar v. City of Cleveland (N.D. Ohio 1998) 7 F.Supp.2d 948 , 951.)

To establish a claim for cost recovery under CERCLA, a claimant must prove not only that the site in question was a “facility” and that a “release” or threatened release of a hazardous substance occurred, but must also show that the defendant falls within a category of “liable parties” as set forth in title 42 United States Code section 9607(a) and that the release or threatened release caused the claimant to incur “necessary costs of response.” (ABB Industrial Systems v. Prime Technology, Inc. (2d Cir. 1997) 120 F.3d 351 , 356; U.S. v. Poly-Carb, Inc. (D.Nev. 1996) 951 F.Supp. 1518 , 1522; see 42 U.S.C. § 9607 (a)(4)(B).) The four categories of “liable parties” as outlined in title 42 United States Code section 9607(a) are: (1) present owners and operators of a facility; (2) past owners and operators of a facility at the time of disposal; (3) arrangers for disposal or treatment; and (4) transporters. (See U.S. v. CDMG Realty Co. (3d Cir. 1996) 96 F.3d 706 , 713.) Noticeably absent from this list are manufacturers or distributors of products, the

Covalt, for example, the plaintiff was exposed to asbestos in his place of employment—Proko Industries—between 1963 and 1971, but did not become ill until 1986. By that time, he argued, he did not have a viable remedy against Proko because he could not collect any judgment entered against it. The court acknowledged the “possibility” that “the exception deals with kinds of claims—for example, workplace injuries to employees that ordinarily are covered by workers’ compensation programs—without depending on the employee’s ability to collect in the given case.” (Id. at p. 1436.) The court did not “pursue this possibility” because it rejected plaintiff’s contention on another ground, concluding that “[a] place where work is being carried out is not the ‘environment’ for purposes of [CERCLA].” (Ibid.)

Analyzing the question of whether exposure to asbestos on the job constitutes a release into the “environment,” the court stated: “It is lexically possible to treat the ‘environment’ as everything pertaining to the planet Earth, so that the instant a container of asbestos is opened it is released ‘into [the local portion of] the environment’. Such a global treatment erases ‘released into the environment’ as a limitation, however, by ensuring that it is always satisfied. No substance, except perhaps an injected drug, harms anyone unless it was at least for an instant in an ‘environment’. A reading of this sort trivializes statutory language. The text makes more sense if read to refer to more widespread releases that affect strangers: asbestos wafting out of Proko’s plant and contaminating a nearby meadow, or shaken loose from insulation Proko installed in a school; asbestos left behind as a contaminant when Proko closes its plant; fluids leaching into the water supply from a plant, and so on. [H Doubtless some of the language in the United States Code is meaningless. No institution can fill 20 linear feet of shelving with tiny type and commit no redundancies. Yet it is hard to believe that ‘released into the environment’ is an empty phrase. The focus and structure of CERCLA itself show that it has force. Asbestos encountered at work is not a toxic waste, and the Superfund Act is about inactive hazardous waste sites.” (Covalt v. Carey Canada Inc., supra, 860 F.2d at pp. 1436-1437.) Nor did the court believe the 1986 amendments changed the meaning of the term: “SARA, the source of the text under consideration, does not change the focus or structure of CERCLA. . . . Nothing in either the 1986 Amendments or their legislative history hints that EPA [the agency empowered to investigate sites it believes are contaminated with hazardous waste and establish a Superfund for cleaning them up] is to muscle in on the territory of the Department of Labor, which administers programs dealing with workplace safety.” (Id. at p. 1437.)

The court in Covalt was heavily influenced by the study conducted under the authority of title 42 United States Code section 9651(e), which investigated the adequacy of existing common law and statutory remedies in

providing legal redress for injury caused by the release of hazardous substances and preceded the SARA amendments. The study had stated: “ ‘Instances when hazardous substances may be released in other than waste form—i.e., the application of pesticides regulated under the Federal Insecticide, Fungicide and Rodenticide Act (FTFRA)—are expressly exempted from the enforcement provisions of the [Superfund] Act. Thus, the emphasis of this report, similar to the emphasis of CERCLA, is on remedying the adverse consequences of improper disposal, improper transportation, spills, and improperly maintained or closed disposal sites.’ ” (Covalt v. Carey Canada Inc., supra, 860 F.2d at p. 1438.)

Given this legislative history, the court in Covalt was not persuaded by the argument that “applying [section 9658] to substances encountered at work as part of ongoing operations would have deterrent and compensatory effects.” (Covalt v. Carey Canada Inc., supra, 860 F.2d at p. 1439.) “Courts do not strive for ‘more’ of all legislative objectives . . . ; laws have both directions and limits, and each must be scrupulously honored. . . . Giving [section 9658] its broadest possible meaning not only preempts wide sweeps of state law—something we do not lightly attribute to Congress—but also thrusts CERCLA into the domain of other federal rules expressly dealing with employees’ safety, another thing we do not lightly attribute to Congress.” (Covalt, at p. 1439.)

We agree with the Seventh Circuit’s analysis. Clearly, Congress intended section 9658 to have impact beyond actions for recovery of expenses incurred in cleaning up toxic waste sites. It applies by its terms to individual lawsuits for “personal injury, or property damages,” not just “necessary costs of response,” (ibid.) and can be invoked regardless of whether the defendants meet the statutory definition of “liable party” under title 42 United States Code section 9607(a). Equally obvious, however, is the fact that section 9658 was never meant to extend to all state court lawsuits for personal injury and property damage arising from exposure to toxic substances. By retaining the requirements that the exposure result from “release” into the “environment” from a “facility” as those terms are used for purposes of a CERCLA cost recovery action, Congress expressed its intent to limit the statute’s scope.

We find further support for our position in the decisions of the other federal courts which have agreed with the Seventh Circuit that an exposure limited to a few persons inside an enclosed space is not covered by either section 9658 or CERCLA in general. In Knox v. AC & S, Inc. (S.D.Ind. 1988) 690 F.Supp. 752 , the decedent was exposed to the defendants’ asbestos-containing thermal insulation products during the course of his employment as an insulation mechanic. The issue was whether the state’s statute of

repose, which put an upper limit on the time within which a lawsuit could be filed without regard to the date the injury was discovered, was preempted by section 9658. The court agreed with the plaintiff that “[t]he release of the asbestos fibers from the asbestos-containing insulation products at [the decedent’s] work sites would seem capable of characterization as a CERCLA release, in that the fibers were ‘emitted’ or ‘discharged’ from the insulation.” (Knox, at pp. 756-757.) But the court could not agree that it constituted a release into the “environment”: “Although ‘environment’ is defined in terms of ambient air, an evaluation of the term environment in terms of the overall purpose and scope of CERCLA indicates that the case at bar is not properly considered within the purview of CERCLA and more specifically, the discovery statute of limitations established in § 9658.” (Knox, at p. 757.)

Knox was followed in Electric Power Bd. of Chattanooga v. Westinghouse (E.D.Tenn. 1988) 716 F.Supp. 1069 . As set forth in the statement of facts, an explosion occurred in a penthouse vault located atop a building in downtown Chattanooga. The vault was being utilized by the Electric Power Board of Chattanooga. The explosion occurred while a three-man maintenance crew was performing service work on equipment located in the vault. Two transformers in the vault were damaged by the explosion and discharged “toxic dielectric fluid containing PCB’s.” (Id. at p. 1072.) The manufacturers of those transformers were sued by the board for cost of repair and cleanup. A statute of limitations defense was raised based on the date the transformers were purchased and put into use, nearly 20 years prior to the explosion. The board “submitted evidence that PCB’s were leaked or released into the penthouse vault and subsequently tracked about the general area by persons extinguishing the fire.” (Id. at p. 1080.) The court, however, “d[id] not believe that the leaking of a relatively small quantity of dielectric fluid from a damaged transformer, within the confines of a penthouse containing electrical equipment, is the type of ‘release into the environment contemplated or intended by the CERCLA.’ ” (Id. at p. 1081.)

The court in Electric Power Bd. was also persuaded of section 9658’s inapplicability by another exclusion contained in one of the key definitional provisions. The definition of “facility” excludes “any consumer product in consumer use . . . .” ( 42 U.S.C. § 9601 (9).) The court believed that “the . . . transformers containing . . . dielectric fluid are consumer products in consumer use. The transformers were not, therefore, ‘facilities.’ ” (Electric Power Bd. of Chattanooga v. Westinghouse, supra, 716 F.Supp. at p. 1080.)

The Ninth Circuit Court of Appeals rejected Electric Power Bd.’s interpretation of “facility” in 3550 Stevens Creek Assoc. v. Barclays Bank, supra,

841 F.Supp. 104 —the workers carried substantial quantities of hazardous substances outside the workplace in the form of dust covering their clothing. Third parties were exposed to these hazardous substances, and the environment outside the workplace was significantly impacted. Appellants attempt to bring themselves within the purview of these decisions by contending in their briefs that some Safety-Kleen liquid or vapors clung to their skin or clothing and were inhaled or released into the ambient air outside their places of employment. No such allegations were contained in appellants’ complaints or their oppositions to the summary judgment motions. Even had they been included, we do not believe that such de minimis exposure transforms these occupational exposure actions into CERCLA claims. The plaintiffs in State ofVt. presented evidence that the air in the workers’ homes had elevated levels of mercury and that their septic tanks contained an amount of mercury which was capable of leaching into the water supply. (State of Vt., 684 F.Supp. at p. 836, fn. 8.) The claim in Kowalski arose when the worker’s wife allegedly developed cancer from handling his contaminated clothing and from the spread of the dangerous chemical throughout their home. (Kowalski, 841 F.Supp. at p. 105.) Accepting appellants’ contention that a few drops of solvent on their clothing constitutes a release into the environment for purposes of CERCLA would result in the trivializing of the statutory language which the courts have sought to avoid by restricting the definition of the term.

Finally, Tragarz v. Keene Corp. (7th Cir. 1992) 980 F.2d 411 , which appellants cite for the proposition that “an occupational exposure to asbestos causing the latent development of mesothelioma constituted a release into the environment” is inapposite because it involved the interpretation of an Illinois joint and several liability statute. The Illinois statute contained similar language to CERCLA—requiring a “discharge into the environment”—and defendants sought to rely on Covalt, arguing that “the reasoning in Covalt applies to the interpretation of the Illinois joint and several liability provision . . . .” (Tragarz v. Keene Corp., supra, at p. 427.) The court acknowledged that “in Covalt we held that release into the environment from a facility under SARA did not include releases into the internal workplace environment, at least where a worker is the injured party . . . because such a reading would trivialize this term.” (Tragarz, at p. 427.) But the court believed that the case before it and the issues in Covalt were not “as similar as the defendants paint them.” (Tragarz, at p. 427.) Although the “similar phraseology” in the Illinois statute “should not be interpreted in a manner that makes it devoid of meaning,” it did not follow that the phraseology “ha[d] the same meaning under Illinois’s joint and several liability statute and CERCLA” because they were “two very different statutes.” (Ibid.) “CERCLA, a federal statute, focuses on the national concern of public health

The plaintiff’s complaint, which was “poorly drafted” and “internally inconsistent,” appeared to be “attempting to allege” that “defendants’ products cause cancer, he was exposed to them, and they migrated to his internal organs and caused his multiple myeloma.” (Bockrath v. Aldrich Chemical Co., supra, 21 Cal.4th at p. 79.) The court concluded the allegations were “insufficient” because they did not allege “that each defendant’s product was a substantial factor ... in causing his multiple myeloma.” (Id. at pp. 79-80.) Due to the multitude of defendants named and products identified, the pleaded facts did not show plainly the connection between cause and effect or give rise to an inference of causation that was more than theoretical. The court remanded in order to give the plaintiff the opportunity to assert the following specific allegations: “(1) Plaintiff must allege that he was exposed to each of the toxic materials claimed to have caused a specific illness. An allegation that he was exposed to ‘most and perhaps all’ of the substances listed is inadequate. HQ (2) He must identify each product that allegedly caused the injury. It is insufficient to allege that the toxins in defendants’ products caused it. fl[| (3) He must allege that as a result of the exposure, the toxins entered his body. ftO (4) He must allege that he suffers from a specific illness, and that each toxin that entered his body was a substantial factor in bringing about, prolonging, or aggravating that illness. [*0 (5) Finally, . . . he must allege that each toxin he absorbed was manufactured or supplied by a named defendant.” (Id. at p. 80, fn. omitted.)

Because the court in Bockrath was primarily concerned with plaintiffs who lack any real notion of the identity of the product which was a substantial factor in causing their injury, the discussion appears to be of limited applicability to a situation such as the present one where the plaintiffs have focused their suspicions on a single product and a handful of manufacturers. Appellants contend that it stands for the proposition that “one of the necessary elements of a cause of action alleging occupational disease is plaintiff’s awareness that his injury was caused by a specific ‘toxin’ (distinct from a chemical product),” and that the statute of limitations does not accrue until the toxin is identified. We do not see how that conclusion can be drawn from the court’s language. The court stated that the plaintiff must identify “each product that allegedly caused the injury” and that “[z]i is insufficient to allege that the toxins in defendants’ products caused it.” (Bockrath v. Aldrich Chemical Co., supra, 21 Cal.4th at p. 80, italics added.) Once the product had been identified, the plaintiff could allege that “the toxins” in the product entered his body and were “a substantial factor in bringing about, prolonging, or aggravating [his] illness.” (Ibid.) As we read the opinion, the Supreme Court was referring to “toxins” in a general sense. It was not expressing a requirement that the plaintiff identify specific chemical compounds before he or she can assert a claim. Moreover, even if

a toxic tort complaint is not complete until a particular chemical compound is identified, the statute of limitations does not await the plaintiff’s discovery of every specific fact he needs to allege a cognizable claim. It accrues as soon as the plaintiff suffers an injury and “suspects or should suspect that [his or] her injury was caused by wrongdoing” or “ ‘ “ ‘has notice or information of circumstances to put a reasonable person on inquiry . . . ” (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at pp. 1110-1111.) He or she “must go find the facts” and “cannot wait for the facts to find [him or] her.” (Id. at p. 1111.) Once appellants knew or reasonably should have known that the solvent was the likely potential source of their respective injuries, they had the responsibility to investigate and determine whether to pursue legal action. Appellants had ample opportunity to discover the necessary facts. Unfortunately, they delayed until the statute of limitations had run.

Disposition

The judgments are affirmed.

Vogel (C. S.), P. J., and Epstein, L, concurred.

A petition for a rehearing was denied May 28, 2002, and the petition of appellant Hector Rivas for review by the Supreme Court was denied August 14, 2002.