Jerkins v. Lincoln Elec. Co.

• Citation: 103 So.3d 1
• Decision Date: 02 March 2012
• Docket Number: 1091533.
• Parties: Charles E. JERKINS v. LINCOLN ELECTRIC COMPANY et al.
• Court: Supreme Court of Alabama

103 So.3d 1

Charles E. JERKINS

v.LINCOLN ELECTRIC COMPANY et al.

1091533.

Supreme Court of Alabama.

June 30, 2011.

Special Writings Issued on Overruling of Rehearing March 2, 2012.

Scott O. Nelson of Maples & Lomax, P.A., Pascagoula, Mississippi; and Christopher T. Robertson and David W. Shelton, Oxford, Mississippi, for plaintiff.

Timothy W. Knight of Kee & Selby, LLP, Birmingham; Stephen J. Harburg, Jessica D. Miller, and Geoffrey M. Wyatt of Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C.; and Steven W. Quattlebaum of Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock, Arkansas, for respondents Lincoln Electric Company, Hobart Brothers Company, The ESAB Group, Inc., and Sandvik, Inc.

John M. Herke of Spyridon, Palermo & Dornan, LLC, Metairie, Louisiana, for respondent Socra Corporation.

Matthew C. McDonald of Jones, Walker, Waechter, Pointevent, Carrère & Denègre L.L.P., Mobile, for Business Council of Alabama; and Patrick L.W. Sefton of Sasser, Sefton, Tipton & Davis, P.C., Montgomery, for Alabama Defense Lawyers Association, for amici curiae Business Council of Alabama and Alabama Defense Lawyers Association in support of the plaintiff.

STUART, Justice.

The United States Judicial Panel on Multi–District Litigation consolidated in the United States District Court for the Northern District of Ohio, Eastern Division (“the MDL court”), approximately 1,800 cases involving claims seeking damagesfor personal injuries allegedly caused by exposure to welding fumes. In re Welding Rod Products Liability Litigation, 269 F.Supp.2d 1365 (J.P.M.L.2003). Several dozen of those cases are governed by Alabama law, and the MDL court has identified three issues of Alabama law that may be determinative in those cases, yet, the MDL court states, there is no clear, controlling precedent in the decisions of this Court resolving those issues. Accordingly, the MDL court has certified three questions to this Court pursuant to Rule 18, Ala. R.App. P. We answer those questions below.

I.

The MDL court provided the following background information in the certification order filed with this Court on August 11, 2010:

“As a general matter, the plaintiffs in the [ In re] Welding Fume[ s Prods. Liab. Litig., MDL No. 1533 (‘ Welding Fume’),] cases all allege that: (1) they inhaled fumes given off by welding rods; (2) these fumes contained manganese; and (3) this manganese caused them to suffer permanent neurological injury and other harm. The Welding Fume plaintiffs name as defendants various manufacturers, suppliers, and distributors of welding rod products, and claim the defendants knew or should have known that the use of welding rods would cause [this damage]. The plaintiffs generally bring claims sounding in strict product liability, negligence, fraud, and conspiracy. The gravamen of the complaints is that the defendants ‘failed to warn’ the plaintiffs of the health hazards posed by inhaling welding fumes containing manganese and, in fact, conspired to affirmatively conceal these hazards from those engaged in the welding process.

“....

“This MDL court has presided over trials of several ‘bellwether cases.’ The instant case, Jerkins v. Lincoln Electric Co., was slated for a bellwether trial in July of 2010. Jerkins named as defendants, among others, four welding rod manufacturers: (1) the Lincoln Electric Company; (2) Hobart Brothers Company; (3) the ESAB Group, Inc.; and (4) Sandvik, Inc. The court refers below to these manufacturers collectively as the ‘Principal Defendants.’

“The claims Jerkins asserted against the Principal Defendants that remained for trial were: (1) [a claim under the] Alabama Extended Manufacturer's Liability Doctrine; (2) negligent failure to warn; (3) wanton failure to warn; and (4) sale of unreasonably dangerous product. Jerkins sought both compensatory and punitive damages.

“Before trial, the Principal Defendants filed a motion for summary judgment, arguing that all of Jerkins' claims were barred by the applicable statutes of limitations. The parties agreed that many relevant facts were not in dispute, including these:

“• Jerkins began welding in 1979.

“• Jerkins' exposure to welding fumes was essentially continuous from 1979 through about 2008.

“• Jerkins filed suit on April 21, 2004.

“There remains a dispute of fact regarding precisely when Jerkins first began to experience symptoms of his alleged neurological injury (and, thus, when the relevant welding fume exposures—that is, those that allegedly caused his injury—occurred). There is some evidence that Jerkins suffered tremors and seizures as early as 2000, and other evidence that these symptoms did not appear until as late as 2003. When this court examined the pretrial record in a light most favorable to Jerkins (as it must when ruling on a motion for summary judgment), the court concluded that a reasonable jury could find Jerkins' symptoms did not manifest until sometime within the two-year period that preceded the date he filed his lawsuit—and, thus, that a reasonable jury could find at least some of the allegedly injury-producing exposures occurred within the limitations period.

“Having reached this conclusion, however, this court was still faced with several issues related to application of the Alabama statutes of limitations. First, the Principal Defendants argued Jerkins was allowed to recover damages attributable only to the exposures he suffered during a two-year limitations period (beginning on April 21, 2002); Jerkins argued he was allowed to recover damages attributable to all of his welding fume exposures, going back to when he started welding in 1979. Second, Jerkins further argued that, even if the Principal Defendants were correct that his damages were limited to exposures he suffered during the limitations period, the applicable period was six years, not two. And finally, even if the Principal Defendants were correct that Jerkins' damages were limited to exposures he suffered during the limitations period, the parties disagreed over whose burden it was to prove what portion of the damage[ ] occurred inside the limitations period.

“....

“In light of the discussion above, the undersigned now certifies the following questions to the Supreme Court of Alabama.

“1. In a case where the plaintiff seeks damages caused by long-term, continuous exposure to an allegedly toxic substance, does the law of Alabama applicable before Griffin v. Unocal Corp., 990 So.2d 291 (Ala.2008), limit the plaintiff to recovery of damages attributable only to exposures that occurred within the limitations period?

“2. Does the six-year statute of limitations for wantonness claims adopted by the Alabama Supreme Court in McKenzie v. Killian, 887 So.2d 861 (Ala.2004), apply: (1) prospectively to claims that were filed after McKenzie was decided; (2) retroactively to claims that accrued no earlier than two years before McKenzie was decided; or (3) in some other fashion?

“3. If the answer to question 1 is ‘yes,’ does the law of Alabama impose the burden upon the plaintiff or upon the defendant to prove the amount of damage [ ], if any, attributable to exposures that occurred within the applicable limitations period, versus the amount of damage[ ], if any, that [is] attributable to exposures that occurred outside of the applicable limitations period?”

(Footnotes omitted.) By order dated September 20, 2010, we accepted the certified questions, and briefs have been filed by Jerkins, the defendant welding-rod manufacturers, and amici curiae the Business Council of Alabama and the Alabama Defense Lawyers Association.

II.

At the outset, we take the liberty of rephrasing the first question as follows so that the response we give accurately states Alabama law: ¹

1. In a case where the plaintiff seeks damages for injuries caused by long-term continuous exposure to an allegedly toxic substance, does the law of Alabama applicable before Griffin v. Unocal Corp., 990 So.2d 291 (Ala.2008), limit the plaintiff to recovery of damages for only those injuries that occurred within the limitations period?

As the MDL court correctly noted in the first certified question, the law that applies to Jerkins's claims is the law that existed in Alabama before this Court's decision in Griffin v. Unocal Corp., 990 So.2d 291 (Ala.2008). In Griffin, this Court overruled decades of caselaw to hold that a cause of action in which damages are sought for injuries sustained as a result of exposure to toxic substances accrues only when a manifest injury stemming from that exposure presents itself. 990 So.2d at 293. Before Griffin, this Court had applied the rule encapsulated in Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979), that a cause of action based on exposure to a toxic substance accrues on the date of the last exposure to that toxic substance—even if there is no manifest injury at that time. Although Griffin explicitly overruled Garrett, it also provided that its holding would apply prospectively only, that is, only to those persons whose last exposure to a toxic substance, and first manifest injury resulting from that exposure, occurred within the two-year period before this Court released its opinion in Griffin.Griffin was decided in January 2008; thus, Jerkins's action, filed in April 2004 and based on injuries occurring before that date, is outside the scope of Griffin.

Under the continuous-exposure rule of Garrett, the statutory period of limitations for a continuous tort begins to run from the “date of injury,” 368 So.2d at 520, which is “the last day on which plaintiff was exposed to the danger.” Garren v. Commercial Union Ins. Co., 340 So.2d 764, 766 (1976). The parties in this case have stipulated that Jerkins's exposure to welding fumes was essentially continuous from 1979 through about 2008, and he filed the underlying action on April 21, 2004. Thus, Jerkins's action is clearly not barred by the statute of limitations, and the fundamental issue is therefore what...