DiPetrillo v. Dow Chemical Co.

• Citation: 729 A.2d 677
• Decision Date: 26 April 1999
• Docket Number: No. 97-388-Appeal.,97-388-Appeal.
• Parties: Terry DiPETRILLO et al. v. The DOW CHEMICAL COMPANY.
• Court: United States State Supreme Court of Rhode Island

729 A.2d 677

Terry DiPETRILLO et al. v. The DOW CHEMICAL COMPANY.

No. 97-388-Appeal.

Supreme Court of Rhode Island.

April 26, 1999.

Lauren E. Jones, Philip M. Weinstein, Providence, Antonio Pyle, Pittsburgh, PA, for Plaintiff.

John Tarantino, Patricia Rocha, Providence, Graeme L. Bell, III, Hugh T. Young, Patrick W. Lee, for Defendant.

Present WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

OPENION

LEDERBERG, Justice.

The defendant, Dow Chemical Company (Dow or defendant), has appealed from a judgment in favor of the plaintiffs, Terry DiPetrillo (Terry) and Donna DiPetrillo (Donna), following a jury award of $1 million to Terry as compensation for his injuries and $200,000 to Donna as compensation for her derivative loss of consortium. The jury found that Terry's injuries were proximately caused by an herbicide manufactured and sold by Dow. Following the denial of its motions for a new trial and judgment as a matter of law, the defendant appealed, citing numerous errors at trial. After careful review of the record, we reject the appeal and consequently affirm the judgment.

Facts and Procedural History

Terry DiPetrillo began working for L.H. Meader Tree Company (Meader) in the spring of 1968. During the summers from 1968 through 1971, Terry sprayed pesticides and herbicides on the rights-of-way surrounding the high-tension power lines of Narragansett Electric Company (Narragansett). The plaintiffs alleged that one of these was a "2,4,5-T"¹—based herbicide manufactured by Dow.² At trial, plaintiffs presented evidence that in the late 1960's and early 1970's, Dow sold 2,4,5-T-based products through authorized distributors to control the growth of foliage and that Narragansett provided Dow's 2,4,5-T to Meader, which used it to defoliate trees, plants, and stumps on the rights-of-way around Narragansett's high-tension power lines. During each year in which Terry claimed to have been exposed to Dow's 2,4,5-T-based herbicide Esteron, the product was registered and labeled pursuant to the relevant federal pesticide statute, Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 135 through 135k (West 1970).

Terry and a co-worker, Richard Meader, Jr., both testified that to the best of their recollections, the herbicide they used had been packaged in a blue and yellow container. Terry also testified that at some point, the color of the herbicide's container might have been changed to yellow and brown. Richard Meader did not recall using an herbicide packaged in a red and white or green and white container. Neither man remembered using an herbicide called Esteron. At trial, witnesses for Dow testified that they did not recall any packaging of Esteron 245 in blue and yellow or brown and yellow containers.

In December of 1990, Terry was diagnosed with multiple myeloma, a cancerous proliferation of plasma cells in the bone marrow causing destruction of the bone. He received chemotherapy for almost a year, followed by a bone marrow transplant in 1992. At the time of trial, Terry was in remission, but was still at a substantial risk for recurrence.

In December 1993, the DiPetrillos brought an action against Dow in the Superior Court. They made three claims in their amended complaint, alleging that: (1) Dow manufactured, marketed, and sold an herbicide known as 2,4,-T that was defective and unreasonably dangerous by reason of its dangers to human health and its cancer-causing propensities, and Dow failed to warn users of such propensities; (2) Dow's manufacture, marketing, and sale of its 2,4,5-T herbicide breached implied warranties of fitness and merchantability; and (3) Dow negligently placed "a defective and unreasonably dangerous product on the market * * *," failed to warn users of 2,4,5-T's dangerous propensities, and negligently failed to research and test the cancer-causing aspects of 2,4,5-T. In all counts, the DiPetrillos alleged causation and damages and claimed additionally that Donna suffered damages for loss of consortium.

On March 27, 1996, Dow's motion for summary judgment was denied. Prior to trial, Dow filed motions to exclude any evidence concerning two "Suspension" reports and to bar any reference to Agent Orange.³ In addition, Dow moved to apply the 1972 version of FIFRA to the DiPetrillos' claims⁴ and to conduct a preliminary hearing under the Rhode Island Rules of Evidence in order to examine the scientific bases of the evidence of causation on which plaintiffs' expert witnesses would testify. The plaintiffs filed an objection to the motion for such a hearing.

After trial, the jury returned a verdict for plaintiffs. The jury responded to specific questions and found the following facts by a fair preponderance of the credible evidence:

"[1] that the Defendant manufactured and sold 245-T * * * during the period 1968 through 1972, and that Plaintiff used 245-T manufactured by Defendant in his work at L.H. Meader Tree Company.

* * *

[2] that 245-T, as manufactured and sold by Defendant, was unreasonably dangerous and therefore defective * * * [and that this] conduct proximately caused Plaintiffs injury. * * *

[3] that 245-T, as manufactured and sold by Defendant, was defective because of Defendants failure to warn of the products alleged dangerous propensities * * * [and that this] conduct proximately caused Plaintiffs injury. * * *

[4] that Defendant breached the implied warranty of merchantability regarding its 245-T * * * [and that this] conduct proximately caused Plaintiffs injury. * * *

[5] that Defendant was negligent in its manufacture and sale of its 245-T * * * [and that this] conduct proximately caused Plaintiffs injury."

On the basis of these findings, the jury awarded $1,000,000 to Terry and $200,000 to Donna.

Following the jury verdict, defendant filed a motion for a judgment as a matter of law or, in the alternative, a motion for a new trial. Both motions were denied. On appeal, Dow alleged numerous errors that we now address. Additional relevant facts will be provided in the analysis of the issues raised by this appeal.

Statute a Limitations

In its motion for judgment as a matter of law and in its brief to us on appeal, Dow argued that plaintiffs' claims were barred by the statute of limitations. This Court held in Anthony v. Abbott Laboratories, 490 A.2d 43 (R.I.1985), that the statute of limitations in drug product-liability cases begins to run when the "person discovers, or with reasonable diligence should have discovered, the wrongful conduct of the manufacturer." Id. at 46. The Court arrived at this determination after a careful balancing of policies emanating from our earlier opinion in Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968), a medical malpractice case, in which we held that "a person should have reasonable opportunity to become cognizant of an injury and its cause before the statute of limitations begins to run," Anthony, 490 A.2d at 45. Anthony applied the same rule to drug product-liability cases in which adverse effects of any exposure may not be manifested until a significant period of time has passed. Id. at 46. It is our conclusion that the discovery rule as articulated in Anthony applies to the type of injury that occurred in this case, wherein plaintiffs did not suspect any dangerous consequences from Terry's exposure to allegedly toxic chemicals between 1968 and 1972. Therefore, we reject defendant's contention that any causes of action accrued before Terry became ill and could have discovered Dow's allegedly wrongful conduct. Rather, we hold that the trial justice properly applied the discovery rule. Consequently, plaintiffs' claims were not barred by the statute of limitations, and Dow's motion for judgment as a matter of law was properly denied.

Applicable Law

At trial and on appeal, the parties disputed which version of FIFRA should be applied to the events in this case. The plaintiffs alleged that the 1964 enactment of the statute should be applied, while defendant argued that the 1972 enactment was applicable.

In their complaints, plaintiffs alleged that, between 1968 and early 1972, defendant provided, manufactured, and sold a product that caused plaintiffs' injuries. Thus, the conduct under challenge occurred between 1968 and 1972, during which years the 1964 enactment of FIFRA was in effect. In Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the United States Supreme Court enunciated the general principle that "`the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place * * *.'" Id. at 265, 114 S.Ct. at 1497, 128 L.Ed.2d at 252 (Emphasis added.). The Court directed that this principle mandates that subsequently enacted legislation should not be applied retroactively unless there exists clear evidence of congressional intent to achieve that result. Id. at 280, 114 S.Ct. at 1505, 128 L.Ed.2d at 262.

The evidence pertaining to FIFRA indicates that Congress did not intend to apply the 1972 version of FIFRA retroactively to conduct that occurred before the 1972 enactment. Specifically, the historical note to 7 U.S.C.A. § 136 (West 1980) explains the effective dates and savings provisions of the 1972 FIFRA. Relevant to the question here is subsection (e) of the historical note: "For purposes of determining any criminal or civil penalty or liability to any third person in respect of any act or omission occurring before the [effective date of the 1972 Act, October 21, 1972], the Federal Insecticide, Fungicide, and Rodenticide Act shall be treated as continuing in effect as if [the 1972 Act] had not been enacted." Historical Note to 7 U.S.C.A. § 136 (West 1980) (Emphases added.). Thus, we conclude that the 1964 version of FIFRA is applicable to conduct that occurred before the effective date of the 1972 amendments on October 21, 1972.

This result accords with decisions in the related area...