Maughan v. SW Servicing, Inc., 82-2165

• Decision Date: 05 April 1985
• Docket Number: No. 82-2165,82-2165
• Parties: Dale B. MAUGHAN and June Maughan, surviving parents of Alan Maughan, deceased; Glen Barber and Beverly Barber, surviving parents of Gail Barber, deceased; Anthony Camberlango, surviving spouse, Christopher Camberlango and Collette Camberlango, surviving children, heirs of Karen E. Camberlango, deceased; Gordon L. Heaton and Ione Heaton, surviving parents of Renae Heaton, deceased; Magdaline Manzanares, surviving parent of Una Manzanares, deceased; Kenneth Miller and La Ree Miller, surviving parents of Ralph Michael Miller, deceased, Plaintiffs-Appellants, v. SW SERVICING, INC., a foreign corporation; Galigher Company, a foreign corporation; and/or Baker Oil Tools, a foreign corporation, aka Galigher Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1381

758 F.2d 1381

53 USLW 2544

Dale B. MAUGHAN and June Maughan, surviving parents of Alan Maughan, deceased; Glen Barber and Beverly Barber surviving parents of Gail Barber, deceased; Anthony Camberlango, surviving spouse, Christopher Camberlango and Collette Camberlango, surviving children, heirs of Karen E Camberlango, deceased; Gordon L. Heaton and Ione Heaton surviving parents of Renae Heaton, deceased; Magdaline Manzanares, surviving parent of Una Manzanares, deceased Kenneth Miller and La Ree Miller, surviving parents of Ralph Michael Miller, deceased, Plaintiffs-Appellants, v. SW SERVICING, INC., a foreign corporation; Galigher Company, a foreign corporation; and/or Baker Oil Tools, a foreign corporation, aka Galigher Company, Defendants-Appellees.

No. 82-2165.

United States Court of Appeals, Tenth Circuit.

April 5, 1985.

Dale Haralson of Haralson, Kinerk & Morey, Tucson, Ariz. (Roy G. Haslam of Biele, Haslam & Hatch, Salt Lake City, Utah, with him on brief), for plaintiffs-appellants.

Peter W. Billings, Sr., Salt Lake City, Utah (Peter W. Billings, Jr., and Terrie T. McIntosh of Fabian & Clendenin, Salt Lake City, Utah, and Herbert L. Fenster and Charles A. O'Connor, III of McKenna, Conner & Cuneo, Washington, D.C., with him on brief), for defendants-appellees.

Before HOLLOWAY, Chief Judge, and SETH and McKAY, Circuit Judges.

McKAY, Circuit Judge.

The issue in this case is whether a claim involving suspected carcinogens presents an "exceptional circumstance" tolling the Utah statute of limitations until a plaintiff knows or should know of the facts constituting his or her cause of action.

Plaintiffs filed this wrongful death suit on August 28, 1980, alleging that the leukemia that led to the deaths of their children and spouses between 1960 and 1973 was caused by radiation emanating from a uranium processing plant in Monticello, Utah. The trial court granted defendants' motion for summary judgment as to all of the adult plaintiffs on the ground that Utah's two-year statute of limitations for wrongful death actions had run. ¹ Utah Code Ann. Sec. 78-12-28(2) (1953).

Utah has adopted statutes of limitations "to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Myers v. McDonald, 635 P.2d 84, 86 (Utah 1981) (quoting Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-49, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944)). The general rule is that the statute of limitations begins to run upon the happening of the last event necessary to complete the cause of action, regardless of whether the plaintiff knows of the existence of the cause of action. Becton Dickinson & Co. v. Reese, 668 P.2d 1254 (Utah 1983). If this rule applies, the statute began to run, at the latest, at the death of the last victim in 1973 and the claim is now time-barred.

Plaintiffs argue, however, that the statute was tolled until October 15, 1978, when they allegedly first discovered that the leukemia may have been caused by radiation emanating from the mill, and that the suit therefore is timely. Under Utah law, the discovery rule will be applied in three categories of cases. Becton Dickinson, 668 P.2d at 1257. First, in several areas of the law, the discovery rule has been adopted by statute. See, e.g., Utah Code Ann. Sec. 78-14-4 (1953) (medical malpractice); Sec. 78-12-27 (1953) (actions against corporate stockholders or directors). Second, where a party has concealed facts or misled the potential plaintiff, the statute is tolled until the plaintiff knows or should know of the relevant facts. See, e.g., Vincent v. Salt Lake County, 583 P.2d 105 (Utah 1978); Vest v. Bossard, 700 F.2d 600 (10th Cir.1983). Finally, "where there are exceptional circumstances that would make application of the general rule irrational or unjust, [the Utah Supreme Court] has adopted the discovery rule by judicial action." Becton Dickinson, 668 P.2d at 1257 (citing Myers v. McDonald, 653 P.2d 84 (Utah 1981)).

Plaintiffs do not allege that there is applicable legislation tolling the statute of limitations, nor do they allege active concealment or misrepresentation by the defendants. Thus, their claim is time barred unless it presents an "exceptional circumstance" to which the Utah Supreme Court would apply the discovery rule. ² In addition, even if the discovery rule applies, plaintiffs must demonstrate that they commenced their action within two years of the time when they knew or with due diligence should have known of the facts constituting their cause of action.

The application of the discovery rule is based on a balancing of the hardship the statute of limitations would impose on the plaintiff against the difficulties of proof caused by the passage of time. Myers, 635 P.2d at 87. In Myers, the plaintiffs alleged that they did not and could not reasonably have been expected to know of their injury--the death of their ward--until after the expiration of the statute of limitations. The court found that, if these allegations were true, they would present exceptional circumstances justifying application of the discovery rule since plaintiffs "could not file an action for damages or even initiate investigative efforts to determine the cause of a death of which they had no knowledge." 635 P.2d at 87. The court reversed the lower court's summary judgment and remanded for a determination of when plaintiffs knew or with due diligence should have known of the facts constituting the cause of action. 635 P.2d at 87. When a plaintiff is aware of the physical injury, however, the statute of limitations ordinarily provides incentive to investigate the cause of that injury to determine if he has a legal cause of action. In such a case, the exceptional circumstances tolling principle does not apply "unless there are 'exceptional circumstances' or ... an 'exceptional cause of action' that would cause [the plaintiff] not to investigate the cause of his injury or that would hinder the investigation." Vest v. Bossard, 700 F.2d 600, 608 (10th Cir.1983) (McKay, J., concurring).

Because of the complexity of the scientific data concerning causation of cancer, the disparity of knowledge between plaintiffs and potential defendants, and the often long latency period of the disease, this court concludes that cases involving suspected carcinogens present "exceptional circumstances" justifying application of the discovery rule. ³

In cases involving suspected carcinogens, the first "injury" occurs when the first cancer cells silently begin their evolution in the body. Often the first symptoms of the injury will not appear for some time. Thus "injury" in the sense of symptoms or suffering may appear much later than the actual onset of disease induced by a carcinogen, and in many cases not until after the applicable statute of limitations has lapsed. This problem, which bears on the policies embodied in the Utah statute of limitations doctrine, is further compounded by the complexities of discovery of or even suspicion as to the causation of the evolving disease.

There are many suspected causes of cancer, many of which are natural or non-negligent and would not give rise to a legal cause of action. Thus a potential plaintiff, on learning that he has cancer, lacks the usual incentive to investigate the possibility that the known injury may give rise to a legal claim. In addition, even if he attempts to determine the cause of the disease, he is confronted with a mass of complex, controversial and rapidly changing scientific data and opinions. Lacking the resources and knowledge necessary to carry out their own research into causation, potential plaintiffs must rely on potential defendants--the government and large commercial enterprises--which have the resources to carry out the necessary studies.

Cases involving suspected carcinogens thus are analogous to medical malpractice cases, a category of exceptional circumstances that has been legislatively codified. See Utah Code Ann. Sec. 78-14-4 (1953); Christiansen v. Rees, 20 Utah 2d 199, 436 P.2d 435 (1968) (applying discovery rule, prior to the legislative action, in a case in which an object was negligently left in a patient's body during an operation). In both areas, there is a significant disparity in the knowledge of the potential plaintiffs and the potential defendants, and a possibility that a known injury is not a legal one. As the Utah Supreme Court stated in Foil v. Ballinger, 601 P.2d 144, 147 (Utah 1979),

[w]hile the recipient may be aware of a disability or dysfunction, there may be, to the untutored understanding of the average layman, no apparent connection between the treatment provided by a physician and the injury suffered.... Indeed, common experience teaches that one often suffers pain and other physical difficulties without knowing or suspecting the true cause, and may, as often happens, ascribe a totally erroneous cause to the manifestations. Even those who are trained in medical science often require the additional expertise of one possessing specialty training to diagnose properly the cause of certain ailments.

Similarly, when a person suffers from cancer he may not understand, without expert assistance, that the disease may have been caused by unnatural elements in the environment. In addition, because of the often delayed development of the disease, the plaintiff may face enormous difficulties in determining when and where he was exposed to potential carcinogens, if at all.

The difficulty in determining the cause of cancer is amply demonstrated in the record. Some of the plaintiffs moved from Monticello prior to or immediately after the diagnosis of the disease. See, e.g., Record, vol. 8, at 12 (A. Camberlango Depo.). Plaintiffs' physicians told them that the cause of the disease was unknown. Record, vol. 9, at 23, 78, 79 (...