Lincoln Electric Co. v. Mclemore

• Decision Date: 10 March 2011
• Docket Number: No. 2009–CA–00320–SCT.,2009–CA–00320–SCT.
• Citation: 54 So.3d 833
• Parties: LINCOLN ELECTRIC COMPANY and The ESAB Group, Inc.v.Stanley McLEMORE.
• Court: Mississippi Supreme Court

54 So.3d 833

LINCOLN ELECTRIC COMPANY and The ESAB Group, Inc.

v.Stanley McLEMORE.

No. 2009–CA–00320–SCT.

Supreme Court of Mississippi.

Dec. 9, 2010.Rehearing Denied March 10, 2011.

Michael W. Ulmer, James Joseph Crongeyer, Jr., Hugh Ruston Comley, James Matthew Tyrone, Mark C. Carroll, R. David Kaufman, M. Patrick McDowell, Jackson, attorneys for appellants.James D. Shannon, Hazlehurst, Jamie H. Edwards, Joe Robert Norton, IV, John E. Herrick, Elizabeth C. Ward, attorneys for appellee.EN BANC.CHANDLER, Justice, for the Court:

¶ 1. This case involves a welder's claim of product liability and failure to warn against Lincoln Electric Company (Lincoln) and the ESAB Group, Inc. (ESAB), manufacturers of welding rods (“Defendants”), for exposure to harmful welding fumes that resulted in his eventual diagnosis of manganism, a neurological disease caused by high exposure to manganese. The plaintiff, Stanley McLemore, alleged that he had used the Defendants' rods, which contained manganese, to weld materials together.

¶ 2. McLemore filed a complaint in the Circuit Court of Copiah County on November 14, 2005. An amended complaint followed on March 3, 2006. In April 2007, the Defendants filed a motion for summary judgment, claiming that McLemore had filed suit outside the three-year statute of limitations. The trial court denied the motion for summary judgment. The Defendants also filed a motion to exclude the expert testimony of Dr. Michael Swash, which the trial court denied.

¶ 3. The matter proceeded to trial on November 6, 2008. A jury returned a verdict in favor of McLemore finding the Defendants liable and awarding McLemore $1,855,000. The Defendants filed post-trial motions for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. Following the trial court's denial of the motions, the Defendants filed a notice of appeal raising three issues:

I. Whether the trial court improperly admitted McLemore's medical expert's diagnosis.

II. Whether McLemore proved that each Defendant's products were a substantial factor in causing his injury.

III. Whether McLemore's claims were barred by the statute of limitations, and whether the form of the verdict misstated the relevant question on the issue of statute of limitations.

¶ 4. Finding the issue of the statute of limitations to be dispositive, this Court reverses and renders the trial court judgment enforcing the verdict of the jury.

FACTS

¶ 5. Stanley McLemore worked as a welder for almost thirty years. In the course of his career, McLemore worked all over the country, with two long stints at Grand Gulf Nuclear Power Station from 1980 through 1984 and from 1993 through 1998. In December 2001, McLemore experienced difficulty welding and developed slowness in his left hand and arm. McLemore was left-handed and relied on his left hand in his welding work.

¶ 6. At first, McLemore thought that he had pinched a nerve, and he went to see a chiropractor. The chiropractor referred McLemore to Dr. Joseph Farina, a neurologist. Dr. Farina informed McLemore that he had Parkinsonism or Parkinsonian syndrome, and his condition could have been related to welding. McLemore went to the office of an attorney whom he previously had used for legal work, after Dr. Farina examined him and mentioned the attorney's name.

¶ 7. Subsequently, McLemore saw Dr. Michael Graeber, Dr. Albert Hung, Dr. Michael Swash, Dr. Robert Herdon, Dr. David Doorenbos, and Defendants' medical expert, Dr. Ray Watts. When Dr. Hung examined McLemore in Boston in December 2002, he advised McLemore to discontinue welding.

¶ 8. Dr. Swash was McLemore's main expert witness at trial. This doctor was the only physician to diagnose McLemore with manganism. According to Dr. Swash, manganism is a syndrome with features of atypical Parkinsonism that is caused by exposure to manganese. While McLemore saw a host of other physicians between December 2001 and his trial date in 2008, they determined that he had some form of Parkinsonism. A few considered manganism, but ultimately decided against that diagnosis. Only Dr. Swash determined that McLemore had manganism.

¶ 9. McLemore stated that he first learned that he suffered from manganism in 2005. However, McLemore filed various lawsuits claiming neurological injuries from exposure to welding products as early as February 2004. The first complaint was filed on February 13, 2004, against various corporations for injuries suffered from those defendants' sale and/or distribution of defective welding consumables. The complaint did not name either Lincoln Electric or ESAB, although it named John Doe Defendants 1–20. On August 31, 2004, McLemore filed a complaint alleging “serious neurological injuries” due to exposure to manganese in the Defendants' welding consumables. This complaint named Lincoln Electric and ESAB and other defendants, was not served on anyone, and was dismissed voluntarily by McLemore on December 28, 2004. McLemore filed another complaint on November 14, 2005, alleging “serious neurological injuries” due to exposure to manganese in the Defendants' welding consumables. This complaint was not served on anyone. McLemore filed an amended complaint on March 3, 2006, again alleging “serious neurological injuries” due to exposure to manganese in the Defendants' welding consumables. The Defendants were served with the amended complaint no later than March 14, 2006.

DISCUSSION

I. Statute of limitations and form of the verdict

¶ 10. This Court applies a de novo standard of review to the statute of limitations. Harris v. Darby, 17 So.3d 1076, 1078 (Miss.2009) (citing Ellis v. Anderson Tully Co., 727 So.2d 716, 718 (Miss.1998)).

¶ 11. The Defendants claim that the trial court erred on two issues concerning the statute of limitations by (1) denying the Defendants' motion for JNOV (and their motion for summary judgment) for McLemore's alleged failure to file within the three-year statute of limitations under Mississippi Code Section 15–1–49, based on the date of discovery or date he should have discovered his injury, and (2) giving a jury-verdict form that asked the jury to determine when McLemore should have known about his manganism instead of the more general inquiry of when he should have known about his injury. Finding the first of the two issues dispositive, this Court will not address the form of the jury verdict.

A. Section 15–1–49

¶ 12. Defendants argue that McLemore knew that he had an injury on September 3, 2002, when Dr. Farina diagnosed him with Parkinsonism and informed him that his condition may have been related to his occupation as a welder. Accordingly, the Defendants reason that McLemore should have filed suit on or before September 3, 2005, yet he filed this cause of action on November 14, 2005.

¶ 13. McLemore, on the other hand, argues that his cause of action did not accrue until October 2005, when he was diagnosed with manganism. ¹ Further, McLemore argues that both parties were in agreement that welding fumes do not cause Parkinson's disease. However, it also was undisputed that welding fumes may cause manganism. McLemore contends that he had no cause of action until he knew that he had manganism. Prior to his diagnosis, McLemore visited physicians in an effort to identify his condition. Until he knew he had manganism, McLemore argued that he did not know that the welding fumes had caused his damages.

¶ 14. Mississippi Code Section 15–1–49 concerns the three-year statute of limitations and states:

(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of action accrued, and not after.

(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

Miss.Code Ann. § 15–1–49 (Rev.2003).

¶ 15. Pursuant to Mississippi Code Section 15–1–49(2), a plaintiff's cause of action accrues at the point at which he discovered, or by reasonable diligence should have discovered, the injury. Therefore, this Court must consider the application of the latent-injury/discovery rule and whether McLemore's statute of limitations began to run when either (1) he knew of his Parkinsonism, or (2) he knew of the diagnosis of manganism.

¶ 16. While McLemore's November 2008 trial preceded this Court's most recent application of Section 15–1–49(2), and the litigants and trial court did not have the benefit of this Court's decision in Angle v. Koppers, Inc., 42 So.3d 1 (Miss.2010), the case nonetheless is applicable to this appeal. In Angle, this Court determined that the plain language of Section 15–1–49 supports an interpretation “that the cause of action accrued upon discovery of the injury, not discovery of the injury and its cause.” Id. at 5 (emphasis in original).

¶ 17. In Angle, the plaintiff filed suit on March 16, 2006, against various defendants including Koppers, a wood-treatment plant, and others for injuries suffered as a result of harmful exposure to toxic chemicals from 1984 through 2001. Id. at 2. The defendants moved for summary judgment based on Section 15–1–49 and its three-year statute of limitations. Id. at 3. Angle's last injury occurred in 2001, five years before she filed the complaint. Id.

¶ 18. Without providing a known date, Angle responded that the statute of limitations began to run when she knew that she had an injury and the cause of her injury. Id. at 3. The Court found that the “cause of action accrued upon discovery of the injury, not discovery of the injury and its cause.” Id. at 5 (emphasis in original). The Court found that Angle's injury accrued, at the latest, in 2001, when she was diagnosed with her last disease. Id. at 7.

¶ 19. In reaching its decision, this Court considered a number of prior cases, including Owens–Illinois, Inc. v. Edwards, 573...