Degussa Corp., Pigment Div. v. Mullens

Decision Date05 June 1998
Docket NumberNo. 49A05-9706-CV-215,49A05-9706-CV-215
Citation695 N.E.2d 172
PartiesDEGUSSA CORPORATION, PIGMENT DIVISION, North America Silica Company and P.Q. Corporation, Appellants-Defendants, v. Lenita MULLENS, Appellee-Plaintiff. AGRITEK BIO INGREDIENTS, INC., Appellant-Defendant, v. Lenita MULLENS, Appellee-Plaintiff.
CourtIndiana Appellate Court
OPINION

SHARPNACK, Chief Judge.

This case comes to us on interlocutory appeal from the denial of the defendants-appellants' motion for summary judgment. The dispositive issue for our review is whether the motion should have been granted because the plaintiff-appellee's claims are barred by the statute of limitations. We reverse and remand with instructions.

The relevant facts follow. Lenita Mullens began to work at an animal feed company in September of 1990. She was hired to mix various powdered and liquid ingredients into livestock feeds. On March 25, 1994, Mullens filed a complaint against Degussa Corporation, Pigment Division, North America Silica Company, P.Q. Corporation, and Agritek Bio Ingredients, Inc. (collectively the "appellants"). 1 In her complaint, Mullens alleged that she suffered permanent lung damage due to employment-related exposure to various chemicals, some of which were manufactured, sold, or supplied by the various appellants. The appellants joined in a motion for summary judgment on the basis that Mullens' claims were not asserted within the two year statute of limitations. On May 1, 1997, the trial court denied the appellants' motion for summary judgment.

The dispositive issue for our review is whether the motion for summary judgment should have been granted because Mullens' claims are time barred. When reviewing the denial of summary judgment, we use the same standard used by the trial court. Ramon v. Glenroy Construction Co., 609 N.E.2d 1123, 1127 (Ind.Ct.App.1993), trans. denied. Summary judgment is appropriate only when the evidentiary matter designated by the parties shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The movant bears the burden of establishing the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed in a light most favorable to the non-movant. Ramon, 609 N.E.2d at 1127. The defense of a statute of limitations is particularly suitable as a basis for summary judgment. Gilp v. Neville, 681 N.E.2d 1173, 1175 (Ind.Ct.App.1997), trans. denied.

Mullens' action, which is based upon theories of negligence and products liability, is governed by Ind.Code § 33-1-1.5-5, which states that "any product liability action in which the theory of liability is negligence or strict liability in tort" must be commenced within two years after the cause of action accrues. The question of when an action "accrues" has not been addressed by the legislature. However, our supreme court has adopted a discovery rule for accrual of claims arising out of illnesses allegedly caused by prolonged toxic exposure. See Barnes v. A.H. Robins Co., 476 N.E.2d 84, 87 (Ind.1985). Under this discovery rule, the statute of limitations:

"commences to run from the date the plaintiff knew or should have discovered that she suffered an injury or impingement, and that it was caused by the product or act of another. It is contemplated that persons armed with these indices have a fair opportunity to investigate available sources of relevant information and to decide whether to bring their claims in court within the time limitations in the statute."

Id. at 87-88 (emphasis added).

The discovery rule as described in Barnes has been further considered in both federal and state courts. In Miller v. A.H. Robins Co., the seventh circuit applied the Barnes discovery rule and addressed the question of what degree of knowledge is required to reach the "should have discovered" threshold for a connection between the illness and the product. Miller v. A.H. Robins Co., 766 F.2d 1102 (7th Cir.1985). In Miller, the plaintiff "knew she had suffered an injury when she was hospitalized in 1974" that resulted from using a Dalkon Shield. Id. at 1103. The plaintiff contended, however, that she neither knew nor should have discovered the cause of her illness until seven years later when definitive testing was done. The plaintiff argued that the limitations period begins to run only when a plaintiff knows or should have discovered that the defendants' product was "the actual cause, rather than a possible or probable cause, of the injury." Id. at 1105.

The court of appeals rejected this argument, saying that it was "inconsistent with Indiana law." Id. The court stated:

"The notion of 'a fair opportunity to investigate' suggests that discovering 'the cause' is something less than possessing irrefutable proof of causation. The doctors' statement, by itself, informed Ms. Miller of a possible causal connection, and should have prompted Ms. Miller either to contact a lawyer or to conduct her own inquiry."

Id.

In 1990, the seventh circuit again considered Indiana's discovery rule. See Evenson v. Osmose Wood Preserving Co., 899 F.2d 701 (7th Cir.1990), reh'g denied. In Evenson, the issue was whether the statute of limitations had run against the plaintiff who failed to file suit within two years of forming his own uncorroborated suspicions of a causal connection between his illness and his exposure to a chemical at work. The court noted that the "unusual factor" in the case was that no doctor had confirmed the plaintiff's suspicions prior to the two-year period before he filed his complaint. Id. at 704.

Ultimately, the court held that the statute did not run against the plaintiff because he had "only a layman's mere suspicion" as to causation. Id. at 705. The court distinguished its previous decision in Miller because in that case, the plaintiff had been told by her doctor of the possible causal connection while the plaintiff in Evenson "received no indication anytime prior to the two-year period before he filed his complaint that his suspicion as to the cause of his injuries might be correct." Id. at 704. The court stated:

"Defendants claim that knowledge of a possible cause of one's injuries is the standard under Miller and that Evenson's belief as to the cause of his injuries meets this standard. It is true we referred to plaintiff's knowledge of a 'possible cause' in Miller. Defendants, however, attempt to elevate these references to the level of a standard, a result of which we did not intend. Under the facts of Miller, it was clearly more than a mere possibility that the Dalkon Shield was the cause of Ms. Miller's pelvic infection."

Id. at 705 n. 6 (citation omitted). The court further held the "mere suspicion or speculation" of a "layperson without technical or medical knowledge" is not enough to constitute a reasonable possibility. Id. at 705. The plaintiff had argued that a doctor's testimony, based on medical probability that the product caused the injury, should be the threshold requirement. The court of appeals rejected this proposed standard, noting that the cases applying the Indiana discovery rule do not make such diagnosis necessary. Id. at 704-705. Instead, the court said, "where knowledge of causation is at issue, a person knows or should have discovered the cause of his injury when he has or should have discovered some evidence that there was a reasonable possibility that his injury was caused by the act or product of another." Id. at 705 (emphasis added).

The court then considered what constitutes some evidence of a reasonable possibility. It concluded that "events short of a doctor's diagnosis can provide a Plaintiff with evidence of a reasonable possibility ..." and referred to Miller as a case where there was "clearly more than a mere possibility...." Id. at 705 n. 6. What raised Miller above the level of a mere layman's suspicion or speculation was that Miller had been told by her doctor that the Dalkon Shield was a possible cause. The court of appeals noted its approval of the district court's interpretation of Indiana's discovery rule as follows:

"The district court observed that the Indiana discovery rule emphasizes knowledge of a potential rather than an actual link. Citing Miller v. A.H. Robins Co., 766 F.2d 1102 (7th Cir.1985), the district court stated that the causation prong of the discovery rule 'is satisfied if the plaintiff is informed of a "possible causal connection" between the foreign substance and the injury of which he complains.' Again relying on Miller, the district court noted that having a fair opportunity to investigate available sources of information does not require possessing irrefutable proof of causation."

Id. at 703 (emphasis added).

The Indiana Supreme Court revisited the discovery rule again in Allied Resin Corp. v. Waltz, 574 N.E.2d 913 (Ind.1991). In Allied, the supreme court reversed summary judgment in favor of a plaintiff on the issue of whether the statute of limitations had run. The trial court had previously determined that the statute had not run because the plaintiff contended he was not given an affirmative diagnosis by a doctor that his symptoms were related to his exposure to certain chemicals until less than two years before he filed...

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  • Van Dusen v. Stotts
    • United States
    • Indiana Supreme Court
    • July 8, 1999
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    ...Co. of Am., Inc., 899 F.2d 701 (7th Cir.1990); Allied Resin Corp. v. Waltz, 574 N.E.2d 913 (Ind.1991); and Degussa Corp., Pigment Div. v. Mullens, 695 N.E.2d 172 (Ind.Ct.App.1998), rev'd, 744 N.E.2d 407 (Ind.2001). The following excerpt contains the Van Dusen court's synthesis of the princi......
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    ...and exposure to various chemicals and the need to investigate further. Van Dusen, 712 N.E.2d at 499 (citing Degussa Corp. v. Mullens, 695 N.E.2d 172, 178 (Ind.Ct.App. 1998),trans. granted, opinion vacated, 706 N.E.2d 178 (Ind.1998)). In another case considered by the Van Dusen court, it was......
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