Mascarenas v. Union Carbide Corp.
| Decision Date | 05 October 1992 |
| Docket Number | Docket No. 127273 |
| Citation | 492 N.W.2d 512,196 Mich.App. 240 |
| Parties | , Prod.Liab.Rep.(CCH)P 13,483 Bernardo MASCARENAS and Barbara Mascarenas, Plaintiffs-Appellants, v. UNION CARBIDE CORPORATION, Exxon Chemical Company, Fisher Scientific Company and the Dow Chemical Company, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by Barry P. Waldman, Detroit, for Bernardo and Barbara Mascarenas.
Dykema Gossett by Dennis M. Haffey and Cheryl A. Bush, Detroit, for Union Carbide Corp., Exxon Chemical Co., and Dow Chemical Co.
Before JANSEN, P.J., and MICHAEL J. KELLY and CORRIGAN, JJ.
Plaintiffs appeal from the lower court's grant of summary disposition pursuant to MCR 2.116(C)(7) and (10) in this products liability case. We affirm.
Bernardo Mascarenas (plaintiff) was employed by the Pennwalt Corporation as a mason tender and bricklayer from 1970 to 1985. He used various solvents to clean brick, remove mortar, and perform other such tasks. Four of these products are significant to the present action: methyl ethyl ketone, acetone, toluene, and Dowclene. Defendants supplied all four products to Pennwalt in large containers, and the products were then dispensed to employees in unmarked gasoline cans.
In 1985, plaintiff was laid off. The plant where he had worked closed soon afterward. In 1986, several physicians examined him for various neurological complaints, including increasing memory loss and general deterioration of functioning. His disorder was diagnosed as organic brain syndrome caused by exposure to toxic agents.
On September 9, 1988, plaintiff sued Pennwalt, alleging an intentional tort. He also sued Union Carbide Corporation, Exxon Chemical Company, Fisher Scientific Company, and Dow Chemical Company, alleging that they had manufactured the chemicals that caused his injury. He named Pennwalt as the manufacturer of methyl ethyl ketone, Union Carbide and Exxon as the manufacturers of acetone, Fisher as the manufacturer of toluene, and Dow as the manufacturer of Dowclene. Pennwalt and Fisher subsequently settled the claims against them.
After the close of discovery, the remaining defendants moved for summary disposition pursuant to MCR 2.116(C)(7), arguing expiration of the period of limitation, and MCR 2.116(C)(10), asserting no proof of exposure to defendants' products, no proof of proximate cause, and Pennwalt's "sophisticated user" status. The lower court ruled for defendants on all grounds.
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. Nichols v. Clare Community Hosp., 190 Mich.App. 679, 681, 476 N.W.2d 493 (1991). The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Id. The party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Id. Giving the benefit of any reasonable doubt to the nonmovant, the court must determine whether a record might be developed that will leave open an issue upon which reasonable minds could differ. Id. at 682 476 N.W.2d 493. This Court liberally finds a genuine issue of material fact, but where the opposing party fails to adduce evidence to establish a material factual dispute, the motion is properly granted. Prysak v. R.L. Polk Co., 193 Mich.App. 1, 6, 483 N.W.2d 629 (1992).
In Nielsen v. Barnett, 440 Mich. 1, 8-9, 485 N.W.2d 666 (1992), our Supreme Court recently described the purpose of statutes of limitation:
By enacting a statute of limitations, the Legislature determines the reasonable period of time given to a plaintiff to pursue a claim. Lothian v. Detroit, 414 Mich. 160, 165; 324 NW2d 9 (1982). The policy reasons behind statutes of limitations include: the prompt recovery of damages, penalizing of plaintiffs who are not industrious in pursuing claims, security against stale demands, relieving defendants' fear of litigation, prevention of fraudulent claims, and a remedy for general inconvenience resulting from delay.
The three-year limitation period for a products liability action runs from the time the claim accrues. M.C.L. Secs. 600.5805(9), 600.5827; M.S.A. Secs. 27A.5805(9), 27A.5827. A claim accrues when all the necessary elements have occurred and can be alleged in a proper complaint. Thomas v. Process Equipment Corp., 154 Mich.App. 78, 87, 397 N.W.2d 224 (1986); Grimm v. Ford Motor Co., 157 Mich.App. 633, 639, 403 N.W.2d 482 (1986). The "discovery rule" measures the accrual date of latent occupational diseases in products liability cases. Stinnett v. Tool Chemical Co., 161 Mich.App. 467, 473, 411 N.W.2d 740 (1987), generalizing from Larson v. Johns-Manville Sales Corp., 427 Mich. 301, 308, 399 N.W.2d 1 (1986) (exposure to asbestos).
[T]he proper interpretation of the discovery rule ... is that a plaintiff's cause of action does not accrue until the plaintiff discovers or through the exercise of reasonable diligence should have discovered that the plaintiff has been injured and what a likely cause of the injury was. To trigger the running of the period of limitation, the plaintiff need only have information that would lead a reasonable person to be aware, or after diligent inquiry to become aware, of the plaintiff's injury and a likely cause of the injury. In either situation, the potential litigant will be considered to have received sufficient notice to allow the limitation period to begin to run. [Moll v. Abbott Laboratories, 192 Mich.App. 724, 731, 482 N.W.2d 197 (1992).]
This Court has consistently held that a plaintiff's discovery of his injury does not coincide with his discovery that it may be legally compensable. A plaintiff need not know he has suffered an invasion of a legal right before a cause of action accrues. Thomas, supra, 154 Mich.App. at 87, 397 N.W.2d 224 (); Huntington Woods v. Wines, 122 Mich.App. 650, 652, 332 N.W.2d 557 (1983) (employment discrimination); Leary v. Rupp, 89 Mich.App. 145, 149, 280 N.W.2d 466 (1979) (medical malpractice); Patterson v. Estate of Flick, 69 Mich.App. 101, 104, 244 N.W.2d 371 (1976) (medical malpractice). Nor is a cause of action held in abeyance until a plaintiff obtains professional assistance to determine the existence of a cause of action. Grimm, supra, 157 Mich.App. at 639, 403 N.W.2d 482; Huntington Woods, supra, 122 Mich.App. at 652, 332 N.W.2d 557; Stoneman v. Collier, 94 Mich.App. 187, 193, 288 N.W.2d 405 (1979); Sedlak v. Ford Motor Co., 64 Mich.App. 61, 63, 235 N.W.2d 63 (1975). The Sedlak Court explicitly noted:
It would be an extremely dangerous rule of law that the accrual date of a cause of action is held in abeyance indefinitely until a prospective plaintiff obtains professional assistance to determine the existence of a possible cause of action. [Id.]
If a question of fact exists as to when a plaintiff discovered or should have discovered a cause of action, then summary disposition is improper. Moll, supra, 192 Mich.App. at 735, 482 N.W.2d 197. See also e.g., Cullender v. BASF Wyandotte Corp, 146 Mich.App. 423, 427, 381 N.W.2d 737 (1985); Bonney v. Upjohn Co., 129 Mich.App. 18, 35, 342 N.W.2d 551 (1983). A court may nonetheless conclude that no genuine issue of fact exists as to when the plaintiff discovered, or should have discovered, his claim. Moss v. Pacquing, 183 Mich.App. 574, 581, 455 N.W.2d 339 (1990); Kullman v. Owens-Corning Fiberglas Corp, 943 F.2d 613, 616 (CA 6, 1991).
This case is distinguishable from Bonney, Cullender , andMoss, supra. Medical examinations in 1986 revealed that plaintiff had been experiencing symptoms of exposure to toxic chemicals for the preceding several years. Plaintiff himself had associated his neurological symptoms with exposure to toxic fumes as early as 1982 or 1983. See Stinnett, supra, and Kullman, supra, where the courts relied on the plaintiffs' own statements to find their causes barred. Plaintiff in this case knew no later than 1983 that he was suffering damages associated with defendants' products.
Plaintiff has produced no contrary evidence. Instead, he argues for a 1986 accrual date--when a neurologist first specifically diagnosed and informed his wife of the probable cause of his condition. Plaintiff's position is inconsistent with Michigan case law, discussed supra. The lower court properly found no material question of fact. Plaintiff's cause of action accrued before September 9, 1985, the latest date that would make the present action timely.
Plaintiff argues next that the lower court erred in dismissing his claim on the ground that Pennwalt was a "sophisticated user" of defendants' products. We conclude that no record could be developed to allow reasonable minds to differ on this question. The lower court ruled correctly.
Michigan recognizes the "sophisticated user" defense. See Antcliff v. State Employees Credit Union, 414 Mich. 624, 327 N.W.2d 814 (1982). Not to do so "would lead to demonstrably unfair and unintended results." Id. at 640, 327 N.W.2d 814. A manufacturer's liability for failure to warn the end user of potential hazards is considered in 2 Restatement Torts, 2d, Sec. 388. This Court in Tasca v. GTE Products Corp., 175 Mich.App. 617, 624, 438 N.W.2d 625 (1988), summarized Sec. 388 by saying:
[Section] 388 imposes liability on the supplier of a product which injures the user if (1) the product is defective or dangerous, (2) the supplier has no reason to believe the user will realize its defective or dangerous condition, and (3) the supplier cannot reasonably rely on the purchaser/employer to warn the ultimate users of the product of the danger. Goodbar v. Whitehead Bros, 591 F Supp 552, 556 (WD Va, 1984), aff'd sub nom Beale v. Hardy, 769 F2d 213 (CA 4, 1985).
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