O'Connor

Opinion by Judge PAEZ; Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN.

In 1997, Plaintiffs filed this action against Boeing North America,- Inc. and Rockwell' International Corporation (“Defendants”), alleging that hazardous radioactive and non-radioactive substances released from four nuclear and rocket testing facilities (the “Rocketdyne facilities”) caused their latent illnesses. The district court granted summary judgment against Plaintiffs, ruling as a matter of law that California’s one-year statute of limitations barred their state law tort claims. O’Connor v. Boeing N. Am., Inc., 92 F.Supp.2d 1026, 1036-52 (C.D.Cal.), modified on reconsideration, 114 F.Supp.2d 949 (2000). 1 Plaintiffs appeal, asking us to determine when California’s statute of limitations began to run on their claims.

Under the California statute of limitations, a plaintiff has one year from the dáte of injury to bring a personal injury or wrongful death claim. All of the Plaintiffs learned of their diagnoses more than one year before they filed suit. Unless Plaintiffs can show that delayed discovery of their claims warrants tolling of the statute of limitations, the one-year limit bars…

concurring in part and dissenting in part:

I agree with the court that the thirty-four Plaintiffs who filed their claims prior to the release of the 1997 UCLA Study failed to make a sufficient evidentiary showing as to how they discovered their claims, and I therefore concur in affirming the grant of summary judgment as analyzed in Part II of the court’s opinion. I also concur in the court’s remanding to the district court, in the first instance, to determine whether the state or federal discovery rule applies to the Price-Anderson Act claims, as analyzed in footnote 4 of the court’s opinion.

I

I must respectfully dissent, however, from Part I of the court’s opinion which reverses the grant of summary judgment against the remaining eighteen Plaintiffs. The majority concludes that the federal discovery standard applies to Plaintiffs’ claims because it preempts the California standard under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”). However, for purposes of preemption, I fail to see a substantive difference between the two standards.

The California Supreme Court in Jolly v. Eli Lilly Co., 44 Cal.3d 1103 , 245 Cal.Rptr. 658 , 751…