Degussa Corp. v. Mullens

Decision Date16 March 2001
Docket NumberNo. 49S05-9812-CV-763.,49S05-9812-CV-763.
Citation744 N.E.2d 407
PartiesDEGUSSA CORPORATION, Pigment Division, North America Silica Company, and P.Q. Corporation, Appellants (Defendant below), v. Lenita MULLENS, Appellee (Plaintiff below). Agritek Bio Ingredients, Inc., Appellant (Defendants below), v. Lenita Mullens, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Cory Brundage, Ice, Miller, Donadio & Ryan, Indianapolis, for Appellants Degussa Corporation, Pigment Division, North American Silica Company, and P.Q. Corporation.

Richard R. McDowell, Hill, Fulwider, McDowell, Funk & Matthews, Indianapolis, for Appellant American Laboratories, Inc.

Dale W. Eikenberry, Wooden, McLaughlin, Indianapolis, for Appellant Agritek Bio Ingredients, Inc.

James M. Hinshaw, David O. Tittle, Bingham, Summers, Welsh & Spilman, Indianapolis, for Appellant Henwood Feed Additives.

Richard J. Dick, Mitchell, Hurst, Jacobs & Dick, Indianapolis, for Appellee.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

Lenita Mullens filed a complaint against Defendants for negligently exposing her to products which allegedly caused her to suffer permanent lung damage. Defendants moved for summary judgment asserting that Mullens filed her complaint after the expiration of the two-year statute of limitations for her products liability claim. Finding that Mullens filed a timely claim, we affirm the trial court's denial of Defendants' summary judgment motion. Defendant Agritek filed a separate motion to dismiss, asserting that the Indiana Worker's Compensation Act precluded Agritek's liability in tort to Mullens. The members of this court participating in this case are evenly divided on this issue and so the trial court's denial of Agritek's motion to dismiss is affirmed.

Background

On September 4, 1990, Lenita Mullens began work for Grow Mix, a company formed by Richard Martin and Agritek Bio Ingredients, Inc. (Agritek), to produce feed additive products for Agritek.1 Mullens oversaw the production of Agritek products for Grow Mix and one of her primary responsibilities included the physical mixing of liquid and dry ingredients to make animal feeds. The mixing process generated a great deal of dust.

Mullens initially wore paper masks to protect herself from the dust, but found them to be inadequate and began to use a respirator. Three to four months into her job, Mullens experienced a persistent cough that would diminish after she went home from work and on weekends. In March, 1991, Mullens sought emergency room treatment for bronchitis, a condition for which she had received medical care prior to her employment with Grow Mix. The bronchitis went away, but the cough continued.

On February 4, 1992, Mullens experienced severe coughing and shortness of breath at work. She went to the emergency room again, was told that she had bronchitis, and received a prescription for antibiotics. This time the antibiotics did not work, so Mullens scheduled an appointment with her general physician, Dr. Kenneth Watkins. On March 17, 1992, Dr. Watkins diagnosed Mullens with bronchitis. Dr. Watkins told Mullens that it was possible that her coughing and breathing problems were work-related, but that there were several other potential causes. If Mullens's problems were work-related, the doctor was unsure whether the problems were caused or merely aggravated by the conditions at work. On March 23, 1992, Dr. Watkins advised Mullens not to work for a minimum of two weeks and referred her to a pulmonary specialist for follow-up tests and to further investigate the source of her ailments.

On March 26, 1992, the specialist, Dr. Reihman, told Mullens that it was possible that work-related chemical exposure only was triggering an injury caused by something else. Dr. Dana Reihman advised Mullens to undergo some tests. On June 11, 1992, Dr. Reihman made the following observation: "The etiology of Mrs. Mullens[`s] chronic airflow obstruction and its relationship to her work environment remains unclear." In April, 1992, when Mullens was working with Dr. Reihman to identify the cause of her ailments, Degussa Corporation2 representatives visited her at work and told her that their product could not be causing her medical problems.

Dr. Reihman was ultimately unable to determine the cause of Mullens's problems and referred her to Dr. Joe Garcia, a pulmonary specialist, for further evaluation. At Mullens's first visit with Dr. Garcia in June, 1992, Dr. Garcia repeated Drs. Watkins's and Reihman's assessments, telling Mullens that chemical exposure at work might be related to her ailments but that other causes were possible. Dr. Garcia treated Mullens and attempted to diagnose her problems from June, 1992 until March, 1994, when Mullens and her attorney received the first unequivocal statement from any doctor that her lung disease was caused by exposure to chemicals consistent with those used at Grow Mix.

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, "Defendants"), alleging negligence in the sale of, and her exposure to, products that caused lung damage.3 Defendants joined in a motion for summary judgment arguing that Mullens did not assert her claims within the two-year statute of limitations for products liability actions. Defendant Agritek also filed a motion to dismiss Mullens's tort claims against it, asserting that because Agritek was her employer, the Indiana Worker's Compensation Act provided her exclusive remedies for work-related injuries on the job. On May 1, 1997, the trial court denied Defendants' motion for summary judgment. On May 8, 1997, the trial court denied Agritek's motion to dismiss. Defendants appealed to the Court of Appeals. The Court of Appeals concluded that Mullens failed to file her claims within the statute of limitations period and reversed the trial court, thereby granting Defendants' motion for summary judgment and rendering moot Agritek's separate appeal on their motion to dismiss. Degussa Corp. v. Mullens, 695 N.E.2d 172, 178 (Ind.Ct.App.1998).

Additional facts will be provided as needed.

Discussion
I

Ind.Code § 33-1-1.5-5 (1993) is the limitations statute that governs Mullens's action based on negligence and products liability theories.4 It states that "any product liability action in which the theory of liability is negligence or strict liability in tort . . . must be commenced within two (2) years after the cause of action accrues..." Ind.Code § 33-1-1.5-5. The statute is silent as to the meaning of "accrues." However, we have adopted a discovery rule through case law for the accrual of claims arising out of injuries allegedly caused by exposure to a foreign substance. The two-year statute of limitations begins "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." Barnes v. A.H. Robins Co., 476 N.E.2d 84, 87-88 (Ind.1985); See also Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840, 842-43 (Ind. 1992)

(extending the discovery rule rationale of Barnes to all tort claims).

Defendants contend that the statute of limitations started to run when Dr. Watkins examined Mullens on March 17, 1992, and suggested that exposure to chemicals at work was one of a number of possible causes of her problems. Therefore, when Mullens filed her claim on March 25, 1994, it was eight days late. Mullens responds that the statute of limitations did not begin to run until sometime after March 25, 1992, if not as late as March 1994 when she received the first diagnosis from a physician that her lung disease was caused by exposure to chemicals at work.

While the present case is one based on a products liability claim, case law regarding medical malpractice claims is instructive because medical and diagnostic issues are common between the two actions, the statute of limitations for both claims is two years, and discovery is sometimes at issue in determining whether the respective statutes of limitation have been triggered. The question of when a plaintiff alleging medical malpractice "discovered facts which, in the exercise of reasonable diligence, should lead to the discovery of the medical malpractice and resulting injury, is often a question of fact." Van Dusen v. Stotts, 712 N.E.2d 491, 499 (Ind.1999).

We agree with the Court of Appeals's assertion in the present case that a plaintiff need not know with certainty that malpractice caused his injury, to trigger the running of the statutory time period. See Degussa Corp., 695 N.E.2d at 178. Once a plaintiff's doctor expressly informs the plaintiff that there is a "reasonable possibility, if not a probability" that an injury was caused by an act or product, then the statute of limitations begins to run and the issue may become a matter of law. Van Dusen, 712 N.E.2d at 499. When a doctor so informs a potential plaintiff, the plaintiff is deemed to have sufficient information such that he or she should promptly seek "additional medical or legal advice needed to resolve any remaining uncertainty or confusion" regarding the cause of his or her injuries, and therefore be able to file a claim within two years of being informed of a reasonably possible or likely cause. Id. (citing Degussa, 695 N.E.2d at 178 (quoting in turn United States v. Kubrick, 444 U.S. 111, 122-23, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979))). An unexplained failure to seek additional information should not excuse a plaintiff's failure to file a claim within the statutorily defined time period. See id.

Although "[e]vents short of a doctor's diagnosis can provide a plaintiff with evidence of a reasonable possibility that another's" product caused his or her injuries, a plaintiff's mere suspicion or speculation that another's product caused the injuries is insufficient to trigger the statute. Evenson v....

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