Goodwin v. Bayer Corp.

• Decision Date: 16 December 2005
• Docket Number: No. 32654.,32654.
• Citation: 624 S.E.2d 562
• Court: West Virginia Supreme Court
• Parties: John Edward GOODWIN, Plaintiff Below, Appellant v. BAYER CORPORATION, et al., Defendants Below, Appellees.

624 S.E.2d 562

John Edward GOODWIN, Plaintiff Below, Appellant v. BAYER CORPORATION, et al., Defendants Below, Appellees.

No. 32654.

Supreme Court of Appeals of West Virginia.

Submitted September 14, 2005.

Decided December 1, 2005.

Dissenting Opinion of Justice Starcher December 16, 2005.

Syllabus by the Court

1. "A circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963); Syl. Pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

3. "If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure." Syl. Pt. 3, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

4. "In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury." Syl. Pt. 4, Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997).

5. "In products liability cases, the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence should know, (1) that he has been injured, (2) the identity of the maker of the product, and (3) that the product had a causal relation to his injury." Syl. Pt. 1, Hickman v. Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987); Syl. Pt. 1, Cecil v. Airco, Inc., 187 W.Va. 190, 416 S.E.2d 728 (1992).

6. "Where a plaintiff sustains a noticeable personal injury from a traumatic event, the statute of limitations begins to run and is not tolled because there may also be a latent injury arising from the same traumatic event." Syl. Pt. 3, Jones v. Trustees of Bethany College, 177 W.Va. 168, 351 S.E.2d 183 (1986).

Vincent Trivelli, Esq., Stuart Calwell, Esq., The Calwell Practice, PLLC, Charleston, for Appellant.

April Morgan Hincy, Esq., Timothy S. Coon, Esq., Eckert Seamans Cherin & Mellott, PLLC, Pittsburgh, PA, for Appellee Bayer Corp.

Melvin F. O'Brien, Esq., Christopher D. Stofko, Esq., James R. Miller, Esq., Dickie, McCamey & Chilcote, Pittsburgh, PA, for Appellee PPG Industries, Inc., the Sherwin-Williams Company.

Thomas V. Flaherty, Esq., Tammy R. Harvey, Esq., Flaherty, Sensabaugh & Bonasso, Charleston, for Appellee Rust-Oleum.

James S. Crockett, Jr., Esq., Beth A. Rauer, Esq., Spilman Thomas & Battle, PLLC, Charleston, for Appellee E.I. DuPont de Nemours and Company.

Melvin F. O'Brien, Esq., Randall L. Trautwein, Esq., Lamp, O'Dell, Bartram, Levy & Trautwein, PLLC, Huntington, for Appellee Refinishing Material Specialties, Inc.

PER CURIAM.

This case is before the Court on appeal from the August 25, 2004, Order of the Circuit Court of Kanawha County granting summary judgment in favor of the Appellees and finding that there was no genuine issue of material fact as to whether Appellant had filed the underlying action outside of the period allowed by the statute of limitations. Finding that Appellant had filed his complaint outside of the period allowed by the statute of limitations, the court dismissed the complaint with prejudice.

This Court has before it the petition for appeal, the response, the briefs of the parties, and all matters of record. Following the arguments of the parties and a review of the record herein, this Court finds that existing case law supports the position of Appellees over that of Appellant. Accordingly, this Court affirms the August 25, 2004, Order of the circuit court granting summary judgment in favor of Appellees.

I. FACTS

Between 1969 and 1991, Appellant Goodwin worked at various businesses-including that of his father-as an auto body and trim painter, a foreman, a welder, and a "body man." For the last four to five years of his working life and after his father's retirement, Goodwin ran the family business until its close in 1991.¹ Goodwin never worked again in any capacity because he "just didn't want to work."

Beginning in 1988, three years before the closure of his business, Goodwin noted a funny taste in his mouth as well as tightness in his chest and trouble breathing while painting. At some point in or around that same time, Goodwin purchased and "religiously" used an air-supplied respirator, which seemed to remedy his symptoms. In 1997, six years after Goodwin himself stopped painting, Goodwin was again exposed to paint while watching his son-in-law and a friend paint a bus outside of Goodwin's former shop. Goodwin was not wearing a respirator at the time and began to again experience shortness of breath and chest pains.

On June 3, 1997, Goodwin went to see his family physician, Dr. Victor Selvaraj, in regard to his difficulty in breathing. At that time, Dr. Selvaraj noted in his medical records that Goodwin "has been painting causing breathing problems." Dr. Selvaraj diagnosed Goodwin with chronic obstructive pulmonary disease and referred Goodwin for further tests. Those respiratory function tests revealed that Goodwin suffered from asthma but did not otherwise distinguish that Goodwin's asthma was associated with his work with auto body paint products. Nonetheless, Goodwin, according to his own testimony, associated his breathing problems with exposure to paint. In his March 22, 2004 deposition, Goodwin's testimony was as follows:

Q: When did you first start thinking that the breathing problems you were having were related to paint exposure?

A: When I went to the doctor in '97.

Q: To Dr. Selvaraj?

A: Yes.

Q: Did Dr. Selvaraj tell you that he thought that your breathing problems were related to paint exposure?

A: No.

Q: Then why did you make that connection in '97?

A: I told him that I had been in paint, and he didn't say anything. He just started treating me for breathing.

Q: But you felt it was related to paint?

A: Me?

Q: Yes.

A: Yeah, I thought it was.

Q: Did Dr. Selvaraj tell you that he thought it was related to paint?

A: No, not really.

Q: Has any doctor told you they thought your breathing problems were related to paint exposure?

A: No.

Q: Why do you believe your breathing problems are related to paint exposure?

A: Because I got — like four or five times before that, I'd had that problem and it went away. This time it didn't go away. It never left.

He went on later in that same deposition to explain that his belief that his breathing problems were caused by paint began as early as 1988:

Q: At any time in those last three or four years when you were operating your garage, if you had an over-all paint job, you had breathing problems, correct?

A: If I did one, yes.

Q: And you believed it was the paint that was causing those problems; is that right?

A: Uh-huh.

Q: Is that a yes?

A: Yes. Yes.

Nonetheless, subsequent examinations of Goodwin by Dr. Selvaraj in March and August of 1998 again showed test results within normal limits.

In or around 1998, Goodwin contacted the Law Offices of Stuart Calwell (now The Calwell Practice) in regard to an advertisement the law firm was running seeking clients who worked around paint and who had experienced breathing problems. On or about April 21, 1998, the Law Offices of Stuart Calwell filed an application before the Social Security Administration on Goodwin's behalf seeking supplemental security income benefits based on a history of hernias and asthma, which was subsequently denied.² On June 14, 1999, acting on a release prepared by the Law Offices of Stuart Calwell, Dr. Selvaraj forwarded Goodwin's medical records to Calwell's office. Those medical records included Dr. Selvaraj's diagnosis and his note that Goodwin had "been painting causing breathing problems."

Goodwin's attorneys referred him to Dr. Roger A. Abrahams, who on November 8, 1999, submitted a letter to the Law Offices of Stuart Calwell expressing his belief that Goodwin suffered from "occupational asthma as a result of exposure to isocyanate-containing paint during his employment in the auto body repair business."³ Distinguishing the medical histories of Dr. Selvaraj and his own admitted beliefs about the relationship between paint exposure and his breathing problems, Goodwin asserts that Dr. Abrahams was the first doctor to actually diagnose Goodwin with "occupational" asthma related to his work with paint.⁴

Thereafter, on October 22, 2001, the Law Offices of Stuart Calwell filed a complaint on behalf of Goodwin alleging negligence on the part of the manufacturing defendants, failure to warn on the part of the manufacturing defendants, breach of warranty on the part of the manufacturing defendants, strict liability of the manufacturing defendants, and conspiracy on the part of certain manufacturing defendants.⁵ Goodwin's complaint sought both compensatory and punitive damages.

On April 27, 2004, the defendants jointly moved for summary judgment, alleging that Goodwin's complaint was filed outside the period of time allowed by the statute of limitations. The defendants...