Evenson v. Osmose Wood Preserving Co. of America, Inc., 89-1178

Decision Date11 June 1990
Docket NumberNo. 89-1178,89-1178
Citation899 F.2d 701
Parties, Prod.Liab.Rep.(CCH)P 12,445 Gary EVENSON, Plaintiff-Appellant, v. OSMOSE WOOD PRESERVING COMPANY OF AMERICA, INCORPORATED; Mineral Research and Development, Incorporated; and American Wood Preservers Institute, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

David S. McCrea, McCrea & McCrea, Bloomington, Ind., Thomas E. Kotoske, Palo Alto, Cal., for plaintiff-appellant.

Joan Fullam Irick, Kightlinger & Gray, William T. Graden, Rocap, Reese & Dowling, John D. Cochran, Jr., Young, Cochran & Reese, Peter G. Tamulonis, Kightlinger & Gray, Indianapolis, Ind., for defendants-appellees.

Before WOOD, Jr., RIPPLE and MANION, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

This products liability action arises from injuries allegedly caused by the plaintiff's exposure to wood-treating chemicals. Gary E. Evenson appeals from the district court's grant of summary judgment for defendants Osmose Wood Preserving, Inc. ("Osmose"), Mineral Research & Development Corporation, Inc. ("Mineral Research"), and American Wood Preservers Institute ("American Wood"), on the ground that the district court erred in holding that the Indiana statute of limitations barred his action. For the reasons discussed below, we reverse and remand for further proceedings.


The defendants are parties to this suit because of their involvement with chromated copper arsenate ("CCA"). Osmose and Mineral Research manufacture a wood preservative that contains CCA. Osmose prepared a "Material Safety Data Sheet" and wrote the label used on CCA containers. American Wood represented the interests of the CCA industry before the federal Environmental Protection Agency during that agency's regulatory investigation of the arsenic used in treating wood. Indiana Wood Preserving, Inc. ("Indiana Wood") purchased CCA from Osmose and Mineral Research to treat lumber. Indiana Wood then sold the treated lumber. Evenson worked at Indiana Wood as a wood treatment worker where he was exposed to CCA while carrying out his duties.

The events of this case are best understood chronologically:

March 1980: Evenson begins working at Indiana Wood as a wood treatment worker where he is exposed to CCA while carrying out his duties.

Late summer-early fall 1983: Evenson develops several conditions requiring medical treatment. Dr. Dean Felker, Evenson's general practitioner, diagnoses hay fever, nasal polyps, asthma, and allergic rhinitis. Dr. Felker makes no causal diagnosis except to say that severe allergies are the usual cause of nasal polyps. He refers Evenson to Dr. Steven Isenberg, an ear, nose, and throat specialist, for treatment of the nasal polyps in August 1983.

December 1983: Dr. Steven Isenberg surgically removes Evenson's nasal polyps.

April 1984: Dr. Steven Isenberg refers Evenson to Dr. Paul Isenberg, an asthma specialist. Dr. Paul Isenberg diagnoses Evenson as having an asthma triad (asthma, nasal polyps, and aspirin sensitivity) as well as certain other allergies.

February 20, 1985: Because he is concerned that CCA may be causing his medical problems, Evenson asks Dr. Felker to run tests for CCA in his urine.

March 19, 1985: Evenson leaves Indiana Wood due to medical problems.

March 20, 1985: The urine test is completed and shows normal levels of the chemicals that make up CCA. Because of the test results, Dr. Felker believes that CCA is not causing Evenson's symptoms.

April 1985: For the second time, Dr. Steven Isenberg removes Evenson's nasal polyps. Evenson requests that the polyps be checked for CCA. Dr. Steven Isenberg sends out a sample for testing but never receives the results and is unable to identify the cause of the polyps. Evenson also asks Dr. Paul Isenberg if CCA might be related to his problems but receives no affirmative response.

June 1985: Evenson switches his medical care to the Veteran's Administration hospital in Indianapolis.

September 1986: Evenson moves to Wisconsin and begins receiving medical treatment from various Veteran's Administration hospitals in that state.

December 3, 1986: Evenson first speaks with attorney David McCrea, who is involved in other CCA litigation.

January 1987: On McCrea's referral, Evenson sees Dr. Henry Peters, a neurologist associated with the University of Wisconsin. Dr. Peters tells Evenson that exposure to CCA for any length of time is extremely hazardous.

February 1987: Tests for arsenic on Evenson's hair come back negative.

March 13, 1987: Evenson files his complaint in state court.

April 1987: Dr. Daniel Teitelbaum, a medical toxicologist in Denver, Colorado, examines Evenson after McCrea arranges an appointment. Dr. Teitelbaum confirms Evenson's suspicions that CCA is the cause of his injuries.

Evenson sought recovery on theories of strict liability in tort, negligence, wilful misconduct for failure to warn of the dangers associated with CCA exposure, and for fraudulent concealment of such dangers. Based on diversity of citizenship, the defendants removed the suit to federal district court. The defendants filed a motion for summary judgment on the grounds that the Indiana statute of limitations barred Evenson's action. See Ind.Code Sec. 33-1-1.5-5. Defendant Osmose also argued that Evenson's claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"). See 7 U.S.C. Sec. 136.

The district court granted the defendants' motions for summary judgment, holding that the two-year Indiana statute of limitations barred Evenson's product liability action as well as his fraudulent concealment and failure-to-warn claims. 1 In granting the defendants' motion for summary judgment, the district court did not address the preemption issue raised by Osmose.

Evenson appeals from the district court's final decision, arguing that the statute of limitations began to run February 1985 and that the doctrine of fraudulent concealment did not apply. In addition to supporting the district court's decision, Osmose also renews its argument that FIFRA preempts Evenson's action.


In the context of a summary judgment motion based on the statute of limitations, we must find (1) that the statute of limitations has run and (2) there exists no genuine issue of material fact as to when the plaintiff's cause of action accrued. Kuemmerlein v. Board of Educ., 894 F.2d 257, 261 (7th Cir.1990); Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1219 (7th Cir.1984). We review de novo the district court's grant or denial of summary judgment. Dribeck Importers, Inc. v. Heileman Brewing Co., Inc., 883 F.2d 569, 573 (7th Cir.1989); Greer Properties, Inc. v. LaSalle Nat'l Bank, 874 F.2d 457, 459 (7th Cir.1989).

Indiana's applicable statute of limitations provides: "[A]ny 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 Sec. 33-1-1.5-5. Because chemicals and products are capable of causing injuries that often do not become evident until well after a plaintiff's last exposure to them, Indiana, like many other states, has adopted a discovery rule. Barnes v. A.H. Robins Co., 476 N.E.2d 84 (Ind.1985). Under this rule, the Indiana statute of limitations begins to run from the date that the plaintiff knew or should have discovered (1) that the plaintiff suffered an injury or impingement and (2) that the injury or impingement was caused by the product or act of another. Id. at 87-88. Thus, the Indiana discovery rule has both an injury and a causation prong.

Evenson was aware that he was experiencing medical problems in the latter part of 1983, well over two years before he filed his complaint. The focus is therefore on the causation prong--when Evenson knew or should have discovered that his injuries were caused by his exposure to CCA. 2

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. The district court believed it was enough that Evenson himself suspected that CCA may have been causing his injuries. The court therefore held that the statute of limitations began to run on February 20, 1985, when Evenson requested Dr. Felker to order tests that might substantiate Evenson's theory about CCA being a possible cause of his medical problems. Because Evenson did not file his complaint until March 13, 1987, the district court concluded that the statute of limitations barred his action.

The district court's conclusion was clearly reasonable. We would agree with the court's holding except we believe that the court, in applying the Indiana discovery rule, did not give sufficient weight to an unusual factor in this case. Evenson, despite his diligent efforts, 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. We believe this factor distinguishes the present case from our decision in Miller. In Miller, a woman and her husband sued the manufacturer of the Dalkon Shield, an intrauterine device, after it was determined that a pelvic infection had left her infertile. We affirmed the district court's decision that her suit was barred by the statute of limitations after determining that Miller could have discovered both that...

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