Allied Resin Corp. v. Waltz

• Decision Date: 11 July 1991
• Docket Number: No. 06S01-9107-CV-539,06S01-9107-CV-539
• Citation: 574 N.E.2d 913
• Parties: Prod.Liab.Rep. (CCH) P 12,857 ALLIED RESIN CORPORATION, Conap, Inc., Synair Corp., Appellant, v. Barry J. WALTZ, Appellee.
• Court: Indiana Supreme Court

Page 913

574 N.E.2d 913

Prod.Liab.Rep. (CCH) P 12,857

ALLIED RESIN CORPORATION, Conap, Inc., Synair Corp., Appellant, v. Barry J. WALTZ, Appellee.

No. 06S01-9107-CV-539.

Supreme Court of Indiana.

July 11, 1991.

Norman T. Funk, Hill Fulwider McDowell Funk & Matthews, Indianapolis, for Allied Resin Corp.

James L. Petersen, Donald M. Snemis, Ice Miller Donadio & Ryan, Indianapolis, for Synair Corp.

R. Robert Stommel, Lewis Bowman St. Clair & Wagner, Indianapolis, for Conap, Inc.

Rosemary G. Spalding, Price & Shula, Indianapolis, for Barry J. Waltz.

KRAHULIK, Justice.

The question presented in this case is whether the trial court properly applied the discovery rule in determining whether a strict liability in tort claim was timely filed. Allied Resin Corp., Conap, Inc. and Synair Corp. (Defendant-Appellants below, collectively "the chemical manufacturers") jointly seek transfer to this Court after the entry of summary judgment in favor of Barry Waltz (Plaintiff-Appellant below) was affirmed by the Court of Appeals. Allied Resin Corp. v. Waltz (1990), Ind.App., 559 N.E.2d 390. Because we find that a question of material fact exists, we accept transfer and reverse. The facts necessary for resolution of this issue follow.

From March 1982 until September 1984, Waltz was employed by Tedco, Inc., during which time Tedco was in the business of manufacturing polyurethane products. Waltz alleges that the chemical manufacturers produced and supplied various chemicals used in the manufacturing process. In August or September 1983, Waltz began to experience several symptoms, including headaches, shortness of breath, a loss of energy, a thick mucous drainage and a knot or lump in his throat. In October 1983, Waltz consulted with Dr. Jetmore, an ear-nose-throat specialist, about his symptoms. Dr. Jetmore concluded that Waltz's condition was caused by a deviated septum, and prescribed a decongestant/antihistamine and a steroid nasal spray. Six weeks later, with no improvement in Waltz's condition, Dr. Jetmore performed surgery to correct the deviated septum. One month passed with no improvement; Dr. Jetmore then diagnosed the cause of symptoms as allergic in nature. Six months later, in June 1984, there was still no improvement in Waltz's symptoms and so he began to investigate the potential relationship between his symptoms and the chemicals. He began to suspect that his exposure to the chemicals and his symptoms were related because he had previously enjoyed good health and his symptoms began soon after he started making the polyurethane products at Tedco. At this time, Waltz returned to Dr. Jetmore and asked if his exposure to methylethylketone was causing his symptoms. Dr. Jetmore said that he did not know.

In July 1984, Waltz consulted with Dr. Erxleben, an internist, and told the doctor of his suspicions that his symptoms were caused by exposure to chemicals at work. Waltz gave the doctor material safety data sheets which contained information about the chemicals to which he had been exposed at work, including a list of symptoms which result from overexposure to the chemicals. Several of these symptoms matched those complained of by Waltz. Waltz requested blood tests to evaluate chemical exposure, but Dr. Erxleben could not locate a laboratory which could perform the tests. Dr. Erxleben prescribed decongestants. The evidence is conflicting as to the remaining events of that consultation. Dr. Erxleben testified at his deposition that he told Waltz that his symptoms were "possibly caused" by exposure to chemicals. Waltz claims that the doctor did not make these comments.

In early 1985, because his symptoms persisted, Waltz was referred by Dr. Jetmore to Dr. Johnson. Dr. Johnson determined Waltz was allergic to pollens, house dust, and mites, and concluded that Waltz's physical problems were caused by those allergies. Johnson prescribed allergy shots which Waltz took for a number of months.

In October 1985, with no improvement in Waltz's condition, Dr. Jetmore prescribed RAST tests to determine whether the cause of Waltz's complaints might be related to his chemical exposure at Tedco. When the results of those tests were inconclusive, Waltz was referred to Dr. Burnstein for further testing. Dr. Burnstein concluded Waltz's symptoms were related to his exposure to the chemicals.

Waltz filed his original complaint against the chemical manufacturers approximately one year and eight months after being told by Dr. Burnstein of the causal relationship but more than three years after his appointment with Dr. Erxleben. In his amended complaint, Waltz sought recovery from the chemical manufacturers on theories of negligence and strict liability in tort. Waltz also alleged fraud against Meyer and fraudulent concealment against Synair. The chemical manufacturers filed motions for summary judgment on the...