Barnes v. Clark Sand Co., Inc., 97-3331.

Citation721 So.2d 329
Decision Date05 October 1998
Docket NumberNo. 97-3331.,97-3331.
PartiesEarl BARNES and Lydia Barnes, Appellants, v. CLARK SAND COMPANY, INC., et al., Appellees.
CourtCourt of Appeal of Florida (US)

Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola; H. Guy Green of Green Law Firm, Marianna; and Lance P. Bradley of Provost & Umphrey, Beaumont, TX, for Appellants.

Brian C. Sanders, Fort Walton Beach Attorney for The Clark Appellees.

Robert A. Mercer of Robert A. Mercer, P.A., Miami, for Appellee Pulmosan.

Andrew D. Weinstock of Duplass, Zwain & Williams, Metairie, LA, for The Key Houston Appellees.

Millard L. Fretland and Wendy F. Lumish of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Pensacola, and W. Mark Edwards of Brown, Watt & Buchanan, P.A., Pascagoula, MS, for Minnesota Mining & Manufacturing Company.

Kimberly A. Ashby of Maguire, Voorhis & Wells, P.A., Orlando, for Amicus Curiae Florida Defense Lawyers Association, for Appellees. LAWRENCE, Judge.

Earl Barnes (Barnes), formerly employed as a sandblaster, filed a negligence action against appellees (manufacturers), producers of sand used in sandblasting operations. He alleged that he had contracted a lung disease (silicosis) from exposure to silica dust emanating from the sand used in sandblasting operations and that appellees' products caused or contributed to his illness. Barnes claimed that he was exposed to the silica dust from 1972 to 1974. The manufacturers denied the material allegations of Barnes' complaint and argued that Barnes' action was barred by the now-repealed products liability statute of repose, section 95.031(2), Florida Statutes (1975).1 The trial court granted the manufacturers' motion for summary judgment. We reverse.

Barnes' left lung was surgically removed on July 16, 1984, and he was informed by his physicians that his lung had been removed because of cancer; however, he was told several weeks later that the lung had been removed because of a fungal infection known as actinomycosis. Barnes testified that he did not know that his lung problems were related to silicosis or exposure to silica dust until 1992, and that the diagnosis of silicosis was not confirmed by tissue analysis until 1995.

Section 95.031, Florida Statutes (1975), the statute of repose for products liability cases, eliminated any cause of action based on fraud or products liability filed more than twelve years after the fraud was committed or after the product was sold to its original purchaser. The statute was subsequently held unconstitutional as applied to the facts of the case by the supreme court in Battilla v. Allis Chalmers Mfg. Co., 392 So.2d 874 (Fla.1980), on the grounds that the statute violated Florida's constitutional right of access to the courts. However, no facts were recited in the case.

One year later, the supreme court decided Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981). In Diamond, a pregnant woman ingested the drug diethylstilbestrol (DES) from 1955 to 1956. The daughter born of the pregnancy developed cancer in 1976 allegedly as a result of the mother's ingestion of the drug. Section 95.031, Florida Statutes, was in effect at the time the action in Diamond was brought. The supreme court explained that the statute of repose was unconstitutional as applied in Diamond because it barred the plaintiffs' right of action "before it ever existed" and therefore "violate[d] the Florida Constitution's guaranty of access to courts." Diamond, 397 So.2d at 672. Justice McDonald, specially concurring in Diamond, noted:

The sale and ingestion of the alleged defective product took place in 1955-1956. It is alleged that the effect of that ingestion did not materialize until after the plaintiff reached puberty. In this plaintiff's case the claim would have been barred, even though the wrongful act had taken place, before the injury became evident. She had an accrued cause of action but it was not recognizable, through no fault of hers, because the injury had not manifested itself. This is different from a situation where the injury is not inflicted for more than twelve years from the sale of the product. When an injury has occurred but a cause of action cannot be pursued because the results of the injury could not be discovered, a statute of limitations barring the action does, in my judgment, bar access to the courts and is constitutionally impermissive.

Diamond, 397 So.2d at 672.

Several years later, the supreme court expressly receded from Battilla in Pullum v. Cincinnati Inc., 476 So.2d 657 (Fla.1985), holding section 915.031(2) constitutional. Pullum was injured in 1977 by a press brake machine delivered to the original purchaser in 1966. The appellant sued the manufacturer in 1980, more than twelve years after the date of delivery. The supreme court, in affirming the trial court's grant of summary judgment in favor of the manufacturer, expressly receded from Battilla and held that section 95.031(2) did not violate the right of access to the courts guaranteed under article I, section 21 of the Florida Constitution. The court explained that the legislature enacted section 95.031(2) because it found that "perpetual liability places an undue burden on manufacturers," and because "twelve years from the date of sale is a reasonable time for exposure to liability for manufacturing of a product." Pullum, 476 So.2d at 659.

However, the Pullum court distinguished Diamond, stating:

Pullum also refers to Diamond v. E.R. Squibb and Sons, Inc., 397 So.2d 671 (Fla. 1981), as being in accord with Battilla. In Diamond, we held that the operation of section 95.031(2) operated to bar a cause of action before it accrued and thereby denied the aggrieved plaintiff access to the courts. But Diamond presents an entirely different factual context than existed in either Battilla or the present case where the product first inflicted injury many years after its sale. In Diamond, the defective product, a drug known as diethylstilbestrol produced by Squibb, was ingested during the plaintiff mother's pregnancy shortly after purchase of the drug between 1955-1956. The drug's effects, however, did not become manifest until after plaintiff daughter reached puberty. Under these circumstances, if the statute applied, plaintiffs' claim would have been barred even though the injury caused by the product did not become evident until over twelve years after the product had been ingested. The legislature, no doubt, did not contemplate the application of this statute to the facts in Diamond. Were it applicable, there certainly would have been a denial of access to the courts.

Pullum, 476 So.2d at 659 n*.

The Third District Court of Appeal, in Owens-Corning Fiberglass Corp. v. Corcoran, 679 So.2d 291 (Fla. 3d DCA 1996), review denied, 690 So.2d 1300 (Fla.1997), held that applying section 95.031(2) to facts similar to those alleged in the instant case "would result in an unconstitutional denial of access to the court." Corcoran, 679 So.2d at 294. In Corcoran, Robert Galotti, the decedent of James Corcoran, sued Owens-Corning Fiberglass Corporation for injuries allegedly arising out of Corcoran's exposure to asbestos-containing products between 1966 and 1972. The plaintiff prevailed in the trial court. On appeal, the Corcoran court, in affirming, held that Diamond was still viable, and added:

Diamond, Pullum, and Conley confirm our analysis that because a public necessity was never enunciated, demonstrated, or contemplated for application of the now defunct section 95.031(2) to a case such as this one, resulting in a long delay in manifestation of symptoms that will support a medical diagnosis of injury, such application is constitutionally impermissive.

Corcoran, 679 So.2d at 294-95. The Corcoran court went on to explain that "the Pullum court maintained the exception earlier established in Diamond,." and that "[n]o Supreme Court case post Pullum reverses or recedes from Diamond" Corcoran, 679 So.2d at 293

. Indeed, the supreme court has suggested the continued viability of Diamond in a number of cases. In Conley v. Boyle Drug Co., 570 So.2d 275 (Fla.1990), a case involving the ingestion of DES, the court noted:

Adoption of such a theory of liability would not be the first time this Court has recognized the unique circumstances surrounding the injury suffered by the DES plaintiff. We have recognized that, because of the delay between the mother's ingestion of the drug and the manifestation of the injury to the plaintiff, DES cases must be accorded different treatment than other products liability actions for statute of repose purposes. See Pullum v. Cincinnati, Inc., 476 So.2d 657,

659 n. (Fla. 1985), appeal dismissed, 475 U.S. 1114, 106 S.Ct. 1626, 90 L.Ed.2d 174 (1986); Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981).

Conley, 570 So.2d at 283.

In University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991), a products liability action, a young cancer patient was treated with the drug methotrexate from 1971 to 1972. Several months after treatment was completed, the child became paralyzed and suffered brain damage. The child's parents sued the drug manufacturer. The court, in holding that the plaintiffs' claim against the manufacturer was timed-barred, explained that the statute of limitations began to run when the parents first became aware of the child's paralysis and brain-damaged condition, symptoms which occurred only a few months after the last dose of the drug was administered. The court implied that since the parents knew the child had been treated with the drug in the months prior to the injury, they should have realized that the drug likely caused the injury. The Bogorff court distinguished Diamond, stating that the Bogorff's case was "not a case where a drug was ingested and the alleged effects did not manifest themselves until years later." Bogorff, 583 So.2d at 1004 (citing Diamond).

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    • United States
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