Medalen v. Tiger Drylac U.S.A., Inc., No. CIV.01-331 RLE.

• Court: United States District Courts. 8th Circuit. United States District Court of Minnesota
• Writing for the Court: Erickson
• Citation: 269 F.Supp.2d 1118
• Parties: Debra MEDALEN, Plaintiff, v. TIGER DRYLAC U.S.A., INC., and Dupont Powder Coatings U.S.A., Inc., Defendants.
• Docket Number: No. CIV.01-331 RLE.
• Decision Date: 31 March 2003

269 F.Supp.2d 1118 Debra MEDALEN, Plaintiff,
v.
TIGER DRYLAC U.S.A., INC., and Dupont Powder Coatings U.S.A., Inc., Defendants. No. CIV.01-331 RLE. United States District Court, D. Minnesota. March 31, 2003.

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DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for plaintiff.

Scott Patrick Drawe, Drawe & Heisick, Minneapolis, MN, for Tiger Drylac, Inc., defendant.

Jack Michael Fribley, Peter Jophn Goss, Faegre & Benson, Minneapolis, MN, for Dupont Powder Coatings U.S.A., Inc.

ORDER

ERICKSON, United States Magistrate Judge.

At Duluth, in the District of Minnesota, this 31st day of March, 2003.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to the consent of the parties, as authorized by the provisions of Title 28 U.S.C. § 636(c), upon the Defendants' Motions for Summary Judgment.¹

At a Hearing on the Motions, the Plaintiff appeared by DeAnna M. McCashin, Esq., the Defendant Tiger Drylac U.S.A., Inc. ("Tiger Drylac"), appeared by Scott P. Drawe, Esq., and the Defendant Dupont Powder Coatings U.S.A., Inc. ("Dupont"), appeared by Peter J. Goss, Esq. For reasons which follow, we grant the Defendants' Motions for Summary Judgment.²

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II. Factual Background

This is a products liability action. The Plaintiff was employed by Watkins Aircraft Support Products ("WASP"), first in 1985, for six months on a part-time basis, and then again, in 1987, on a full-time basis. The Plaintiff worked as a grinder and painter, which necessitated her use of powder paint products that were designed, and manufactured, by the Defendants. The Plaintiff asserts that exposure to the Defendants' products caused her to develop a basal cell carcinoma—a form of malignant skin cancer—on the bridge of her nose. The Plaintiff alleges that Tiger Drylac manufactured a powdered paint product, which is identified as 49/42330, and that Dupont manufactured a powdered paint product, which is identified as Silver Horn II, which she used in the course of her employment at WASP. As a consequence of her injuries, the Plaintiff asserts claims of common law negligence; strict liability; breach of express and implied warranty; misrepresentation; false statement in advertising, in violation of Minnesota Statutes Section 325F.67; a violation of the Minnesota Consumer Fraud Act, Minnesota Statutes Section 325F.69; and a violation of the reporting requirements of the Federal Consumer Products Safety Act, as promulgated in 16 C.F.R. pt. 1115.

The Defendants contest the Plaintiff's assertion, that their products are carcinogenic, or that they caused the Plaintiffs ailment. In addition, the Defendants specifically argue that the Plaintiff's strict liability, and breach of warranty claims, are barred by the applicable statute of limitations; that the Plaintiff's breach of implied warranty claim is preempted by the Plaintiffs strict liability claim; that the Plaintiffs Consumer Fraud Act, false advertising, and Consumer Products Safety Act claims, fail to state a claim; and that the Plaintiffs misrepresentation claim is unsupported by evidence in the Record.

III. Discussion

A. Standard of Review. Summary Judgment is not an acceptable means of resolving triable issues, nor is it a disfavored procedural shortcut when there are no issues which require the unique proficiencies of a Jury in weighing the evidence, and in rendering credibility determinations. See, Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary Judgment is appropriate when we have viewed the facts, and the inferences drawn from those facts, in a light most favorable to the nonmoving party, and we have found no triable issue. See, Luigino's, Inc. v. Peterson, 317 F.3d 909, 911 (8th Cir.2003); Duffy v. McPhillips, 276 F.3d 988, 991 (8th Cir.2002); Schoolhouse Inc. v. Anderson, 275 F.3d 726, 728 (8th Cir.2002); Krentz v. Robertson Fire Protection Dist., 228 F.3d 897, 901 (8th Cir.2000).

For these purposes, a disputed fact is "material," if it must inevitably be resolved and the resolution will determine the outcome of the case, while a dispute is "genuine," if the evidence is such that a reasonable Jury could return a Verdict for the nonmoving party. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Herring v. Canada Life Assurance, 207 F.3d 1026, 1028 (8th Cir.2000); Austin v. Minnesota Mining and Manuf. Co., 193 F.3d 992, 995 (8th Cir.1999); Liebe v. Norton, 157 F.3d 574, 578 (8th Cir.1998); Peter v. Wedl, 155 F.3d 992, 996 (8th Cir.1998).

As Rule 56(e) makes clear, once the moving party files a properly supported Motion, the burden shifts to the nonmoving party to demonstrate the existence of a genuine dispute. In sustaining that burden,

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"an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), Federal Rules of Civil Procedure; see also, Anderson v. Liberty Lobby, Inc., supra at 256, 106 S.Ct. 2505; Allen v. Entergy Corp., 181 F.3d 902, 904 (8th Cir.1999); Jaurequi v. Carter Manufacturing Co., 173 F.3d 1076, 1085 (8th Cir.1999). Moreover, the movant is entitled to Summary Judgment where the nonmoving party has failed "to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, supra at 322, 106 S.Ct. 2548; see also, Hammond v. Northland Counseling Center, Inc., 218 F.3d 886, 891 (8th Cir.2000); Greer v. Shoop, 141 F.3d 824, 826 (8th Cir.1998). No genuine issue of fact exists in such a case because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, supra at 323, 106 S.Ct. 2548; see also, Bell Lumber and Pole Co. v. United States Fire Ins. Co., 60 F.3d 437, 441 (8th Cir.1995); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir.1995); Settle v. Ross, 992 F.2d 162, 163 (8th Cir. 1993).

B. Legal Analysis. Before addressing the core of the Defendants' Summary Judgment argument—that the Plaintiff lacks evidence to sustain her assertion that the Defendants' products were carcinogenic, and that their products caused her injury—we consider the Defendants' other objections, starting with their assertion that the Plaintiffs strict liability, and breach of warranty claims, are time-barred.

1 The Defendants' Statute of Limitations Defense. Both the Plaintiffs cause of action for strict liability, and for a breach of warranty, are governed by a four-year statute of limitations, that commences when the injury accrued. See, Minnesota Statutes Section 541.05, Subdivision 2; and Minnesota Statutes Section 336.2-725(1); see also, City of Willmar v. Short-Elliott-Hendrickson, Inc., 475 N.W.2d 73, 80 (Minn.1991)(breach of express and implied warranties); Erickson v. Coast Catamaran Corp., 414 N.W.2d 180, 181 (Minn.1987)(strict liability); Metropolitan Life Ins. Co. v. M.A. Mortenson Companies, Inc., 545 N.W.2d 394, 400 (Minn. App.1996)(breach of express warranty). The Defendants maintain that, because the Plaintiff first developed a sore on the bridge of her nose in 1996, and did not file this action until February 22, 2001, her claims are, necessarily, time-barred.

In her Motion papers, the Plaintiff claims, repeatedly, that the Complaint was filed on February 22, 1997, which, of course, would resolve the statute of limitations defense, as the Complaint would have been filed, and presumptively served, well within four years of the date on which, even the Defendants concede, the Plaintiffs purported injury accrued. However, it appears that the Plaintiffs Complaint was not filed until February 22, 2001. At the Hearing, the Plaintiff acknowledged the discrepancy, and conceded that the Complaint was not filed until February 22, 2001.

Further, the Plaintiff claims that her injury accrued, within the meaning of the statute of limitations, when she was diagnosed with cancer, which was on March 21, 1997. Therefore, in analyzing the Defendants' statute of limitations defense, we must first determine the date on which the Plaintiffs injury accrued for statute of limitations purposes, and then decide when she commenced this action.

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a. The Accrual Date.

i) Standard of Review. "As a general rule, the cause of action accrues when the accident occurs." Dalton v. Dow Chem. Co., 280 Minn. 147, 158 N.W.2d 580, 584 (1968). "It is obvious that injustices could result from an application of the occurrence-of-the-accident test to the situation where the injured party does not discover that he has suffered any injury until after the period of limitation has run." Id. "`Quite recently there have been a wave of decisions meeting the issue head-on, and holding that the statute will no longer be construed as intended to run until the plaintiff has in fact discovered that he has suffered injury, or by the exercise of reasonable diligence should have discovered it.'" Id., quoting Prosser, Torts (3 ed.) § 30.

This rule was adopted by the United States Supreme Court in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282; see also, Karjala v. Johns-Manville Products Corp., 523 F.2d 155, 160-61 (8th Cir.1975)("As in silicosis cases, there is rarely a magic moment when one exposed to asbestos can be said to have contracted asbestosis; the exposure is more in the nature of a continuing tort," and "[i]t is when the disease manifests itself in a way which supplies some evidence of causal relationship to the manufactured product that the public interest in limiting the time for asserting a claim attaches and the statute of limitations will begin to run").

As the...