Dorman v. Osmose, Inc.
| Decision Date | 31 January 2003 |
| Docket Number | No. 53A05-0206-CV-284.,53A05-0206-CV-284. |
| Parties | Mark DORMAN and Tracy Dorman, Appellants-Plaintiffs, v. OSMOSE, INC., Walker Williams Lumber Co., and Bender Lumber Co., Inc., Appellees-Defendants. |
| Court | Indiana Appellate Court |
David S. McCrea, McCrea & McCrea, Bloomington, IN, Attorney for Appellants.
Robert L. Shuftan, David A. Kanter, Martha D. Owens Derek C. Smith, Wildman Harrold Allen & Dixon, Chicago, IL, Kendra Gowdy Gjerdingen, Lonnie D. Johnson, Mallor Clendening Grodner & Bohrer LLP, Bloomington, IN, Donna H. Fisher, Smith Fisher Maas & Howard, Indianapolis, IN, Attorneys for Appellees.
Mark Dorman ("Dorman") and Tracy Dorman (collectively, "the Dormans") appeal the trial court's entry of summary judgment in favor of Osmose, Inc. ("Osmose"), Walker-Williams Lumber Company ("Walker-Williams"), and Bender Lumber Company ("Bender") on their product liability and negligence claims. The Dormans present several issues for our review, which we consolidate and restate as whether the trial court erred when it found that the Dormans' claims are time-barred as a matter of law.
We reverse and remand for further proceedings.
On June 23, 1996, Dorman, an independent contractor, purchased treated wood from Bender and began building a deck for a customer. The wood was treated with chromated copper arsenate ("CCA"), a heavy metal compound that includes arsenic, a known carcinogen. That afternoon, while working on the project, Dorman accidentally struck his right shin against the edge of a piece of freshly-cut treated wood. Dorman wiped blood from the injured area and removed several splinters, but he continued working. Dorman noted a burning sensation at the site of the injury. When Dorman arrived home that evening, his wife, an emergency room technician, cleaned the wound and removed several more splinters.
One week later, on June 29, 1996, the wound on Dorman's right shin was oozing fluid and had become red, swollen, and very warm to the touch. Dorman sought emergency medical treatment at Bloomington Hospital. Dr. Thomas Eccles examined Dorman's leg and diagnosed him as having an "[a]brasion with cellulitis and superficial abscess formation, left pretibial region."1 When Dorman told Dr. Eccles that he had hit his leg on treated wood, Dr. Eccles responded that "they would fix [him] up." Dr. Eccles also told Dorman that "there's some nasty stuff in that [treated lumber]." Dr. Eccles did not elaborate on that statement, nor did Dorman request a further explanation of what Dr. Eccles meant by "nasty stuff." Dorman had worked with treated wood for several years, and he believed that the wood was salt-treated.2 Dr. Eccles prescribed antibiotics to treat Dorman's infection and discharged him from the emergency room.
More than a year later, in August 1997, Dorman sought medical treatment when his lower right leg became red, swollen, and painful to walk on. Dr. Jerry Headdy, Jr. examined Dorman's leg and diagnosed him as having "cellulitis with ascending lymphadenitis."3 There is nothing in Dr. Headdy's report from that examination indicating the etiology of Dorman's symptoms, but Dr. Headdy had initially suspected blood clots. Dorman asked Dr. Headdy if his condition could be related to "running [his] leg into the treated lumber" in 1996.4 Dr. Headdy prescribed antibiotics and admitted Dorman to the hospital for observation overnight. Dorman did not seek additional medical attention until June 24, 1999, when he consulted Dr. Headdy again regarding swelling in his lower right leg. Dr. Headdy ordered a Doppler study of his leg, the results of which were normal.
On December 10, 1999, Dorman talked with attorney David McCrea regarding the injury he sustained in June 1996, and McCrea informed Dorman that treated wood contains CCA. In early 2000, Dorman consulted Dr. R. Michael Kelly regarding his injury, and Dr. Kelly issued a report on May 5, 2000, in which he concluded that "the chromium, copper and arsenic in the treated wood were the cause of [Dorman's] health problems[.]"
On June 30, 2000, the Dormans filed a complaint, alleging that the defendants were strictly liable and negligent in causing Dorman's injuries. Each defendant moved for summary judgment, alleging that the Dormans' claims were time-barred under the applicable statute of limitations. Following a hearing, the trial court entered summary judgment in favor of each of the defendants. The Dormans now appeal.
In determining the propriety of summary judgment, we apply the same standard as the trial court. Jesse v. American Cmty. Mut. Ins. Co., 725 N.E.2d 420, 423 (Ind.Ct.App.2000), trans. denied. We construe all facts and reasonable inferences to be drawn from those facts in favor of the non-moving party. Id. Summary judgment is appropriate when the designated evidence demonstrates that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). The purpose of summary judgment is to terminate litigation about which there can be no material factual dispute and which can be resolved as a matter of law. Zawistoski v. Gene B. Glick Co., Inc. 727 N.E.2d 790, 792 (Ind.Ct.App.2000).
Where, as here, the material facts are essentially undisputed, our sole task is to determine whether the trial court properly applied the law to the facts. Laux v. Chopin Land Associates, Inc., 615 N.E.2d 902, 905 (Ind.Ct.App.1993), trans. denied. Although the trial court entered findings and conclusions, they are not binding upon this court. Eck & Associates, Inc. v. Alusuisse Flexible Packaging, Inc., 700 N.E.2d 1163, 1166 (Ind.Ct.App. 1998), trans. denied. However, the findings facilitate our review by providing valuable insight into the court's decision. Id. If the trial court's summary judgment can be sustained on any theory or basis in the record, we must affirm. Ledbetter v. Ball Mem'l Hosp., 724 N.E.2d 1113, 1116 (Ind.Ct.App.2000), trans. denied.
Indiana Code Section 34-20-3-1, the limitations statute that governs the Dormans' action based on negligence and product liability theories, provides that "any product liability action in which the theory of liability is negligence or strict liability ... must be commenced ... within two (2) years after the cause of action accrues...." See also Degussa Corp. v. Mullens, 744 N.E.2d 407, 410 (Ind.2001)
. The statute is silent on the meaning of "accrues." Id. 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. Id. 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." Id. (quoting Barnes v. A.H. Robins Co., 476 N.E.2d 84, 87-88 (Ind.1985)).
In this case, the defendants contend that the statute of limitations began to run when Dr. Eccles examined Dorman on June 29, 1996, and told him that there was "nasty stuff" in treated wood. The defendants maintain that, given that information, Dorman should have immediately investigated the nature of the chemicals in the wood and should have discovered the cause of his illness. Thus, the defendants assert, the Dormans' complaint was filed more than four years after the date their cause of action accrued. The Dormans respond that the statute of limitations did not begin to run until May 5, 2000, when they received Dr. Kelly's report indicating a causal link with the treated wood. And the Dormans maintain that Dorman did not know that the wood was treated with CCA until his conversation with McCrea in December 1999.
As our supreme court noted in Degussa, 744 N.E.2d at 410-11, when determining the accrual of a product liability cause of action:
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."
(Citations omitted). The court went on to note:
Id. (emphasis added).
Recently, in Johnson v. Gupta, 762 N.E.2d 1280, 1282-83 (Ind.Ct.App.2002), this court addressed the discovery rule in a medical malpractice context and examined two of the leading decisions by our supreme court on this topic, Martin v. Richey, 711 N.E.2d 1273 (Ind.1999) (...
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