Olsen v. Bell Telephone Laboratories, Inc.

• Decision Date: 15 February 1983
• Citation: 388 Mass. 171,445 N.E.2d 609
• Parties: Olaf K. OLSEN et al. 1 v. BELL TELEPHONE LABORATORIES, INC. et al. 2 Western Electric Company, third-party defendant.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 609

445 N.E.2d 609

388 Mass. 171

Olaf K. OLSEN et al. ¹ v. BELL TELEPHONE LABORATORIES, INC. et al. ² Western Electric Company, third-party defendant.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 8, 1982.

Decided Feb. 15, 1983.

Henry T. Dunker, Jr., Boston, for plaintiffs.

Cynthia J. Cohen, Boston, for N.L. Industries, Inc.

Edward Woll, Jr., Boston (Frank J. Bailey, Boston, with him), for Bell Telephone Laboratories, Inc.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

O'CONNOR, Justice.

The plaintiffs, Olaf K. Olsen (Olsen) and Virginia N. Olsen, commenced this action on June 30, 1980. The complaint alleges that Olsen contracted asthma from exposure to a substance known as TDI ³ in the course of his employment by Western Electric Company, due to negligence and breach of implied warranties on the part of the defendants. The condition is claimed to be permanent. The Olsens allege that N.L. Industries, Inc., being the successor to the company that supplied TDI to Western Electric Company is liable to them, and that Bell telephone Laboratories, Inc. (Bell Labs), by recommending its use is also liable. Damages are sought by Olsen for personal injuries and by Virginia N. Olsen for loss of consortium.

The defendants filed motions to dismiss for failure to state a claim upon which relief can be granted. Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). Numerous affidavits and counter affidavits were filed, as well as interrogatories and answers thereto, and responses to requests to admit facts. The motions were treated as motions for summary judgment under Mass.R.Civ.P. 56, 365 Mass. 824 (1974), as provided in Mass.R.Civ.P. 12(b). No issue is raised regarding the propriety of this procedure. The plaintiffs appeal from the allowance of the motions. We allowed the parties' request for direct appellate review. Since the plaintiffs have neither briefed nor argued the issue whether the warranty claims are barred, the only issue before us on appeal is whether their claims for negligence and loss of consortium are barred by the statute of limitations, G.L. c. 260, § 2A. We hold that the plaintiffs' claims are barred and we affirm the judgments.

The following facts were established by the pleadings, answers to interrogatories, admissions, and affidavits. Mass.R.Civ.P. 56(c). Olsen was employed by Western Electric Company from October, 1961, until February, 1974, when he became an inactive employee on sick leave. From 1961 to 1972, he worked in the transformer potting and encapsulating department. His responsibilities included engineering the process for potting and encapsulating transformers. Sometime, about 1962, he requested Bell Labs to recommend a compound for potting transformers that would require less curing time and would enable the production of transformers at a faster rate. Bell Labs recommended a compound containing TDI. Western Electric Company purchased the compound from Baker Castor Oil Co., the predecessor to N.L. Industries, Inc. The compound was used in Olsen's department from 1964 to 1972.

Olsen was exposed to TDI from 1964 to April, 1972, although his exposure was greatly reduced beginning in March, 1970. Olsen had experienced symptoms associated with TDI asthma as early as 1968. These symptoms had become severe enough by March, 1970, that he reported them to his supervisor, who in turn reported them to the company's medical director. In April, 1973, a physician determined that Olsen was suffering from TDI asthma. Olsen was hospitalized for this condition from early June to late September, 1973. In February, 1974, Olsen went on sick leave. At that time he signed an agreement for workmen's compensation benefits. The agreement described Olsen's condition as bronchial asthma due to exposure to TDI.

Olsen consulted three other physicians in 1974. One of the physicians, in a report that Olsen read in February, 1974, opined that Olsen had bronchial asthma, that TDI probably had played a significant role in causing his symptoms, and that Olsen was "on the verge of a severe disability." The report noted that Olsen's disease showed "at least one puzzling feature" in that it became much worse after Olsen was removed from exposure to TDI.

The pleadings, answers to interrogatories, admissions and affidavits do not establish when the plaintiffs learned that Olsen's condition was permanent, as the complaint asserts it is. The plaintiffs claim to have first learned of the permanency of the condition on July 11, 1977, less than three years before June 30, 1980, when the action was commenced. General Laws c. 260, § 2A, provides that actions of tort shall be commenced only within three years next "after the cause of action accrues." This is an action of tort. The narrow question before us is whether the plaintiffs' causes of action arose before June 30, 1977. If they did, the action was brought too late. The plaintiffs would have us hold that their causes of action accrued only when they discovered that Olsen's asthma was permanent. We decline to adopt such a rule, and hold that their action is time-barred.

Since G.L. c. 260, § 2A, as amended through St.1973, c. 777, § 1, does not direct when the period of limitation begins to run, that determination is for the court to make. White v. Peabody Constr. Co., 386 Mass. 121, 128, 434 N.E.2d 1015 (1982). Franklin v. Albert, 381 Mass. 611, ---, Mass.Adv.Sh. (1980) 2187, 2193, 411 N.E.2d 458. A cause of action to recover for an insidious disease could be deemed to accrue on one of several dates: the date of the defendant's negligent act; the date of the plaintiff's first exposure to the product; the date of the plaintiff's last exposure to the product; the date of the first physiological effect on the plaintiff, whether recognized by the plaintiff or not; the date of discovery of injury; and the date on which the plaintiff discovered, or reasonably should have discovered, that he has been harmed as a result of a defendant's conduct. The plaintiffs advocate another possibility in cases alleging permanent injury: the date that the plaintiff knows, or should know, that the injury is permanent.

We have not previously decided when a cause of action for negligence resulting in an insidious occupational disease accrues under G.L. c. 260, § 2A. In Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131 (1974), we held that a client's cause of action against an attorney for negligent certification of title did not accrue for the purpose of G.L. c. 260, §§ 2, and 2A, until the attorney's error was discovered or reasonably should have been discovered. Id. at 91, 310 N.E.2d 131. In Friedman v. Jablonski, 371 Mass. 482, 358 N.E.2d 994 (1976), we applied a similar discovery rule to a cause of action for deceit in the sale of real estate. Id. at 485-486, 358 N.E.2d 994. In Franklin v. Albert, supra, we held that a cause of action for medical malpractice does not accrue under G.L. c. 260, § 4, until a patient learns, or reasonably should have learned, that he or she has been harmed as a result of the defendant's conduct. Supra, 381 Mass. at ---, Mass.Adv.Sh. at 2188, 411 N.E.2d 458. In these cases the court has been guided by the principle that a plaintiff should be put on notice before his or her claim is barred by the passage of time. Thus, the discovery rule has been applied to causes of action based on "inherently unknowable" wrongs. Friedman v. Jablonski, supra at 485, 358 N.E.2d 994. There is no sound reason why the same accrual rule should not apply to actions to recover damages for an insidious disease caused by negligence. We conclude, therefore, that Olsen's cause of action did not accrue before he knew or should reasonably have known that he had contracted asthma as a result of conduct of the defendants.

It remains to be determined whether Olsen's cause of action accrued only at the later date when he knew that the asthma was permanent. Statutes of limitations are "vital to the welfare of society.... They promote repose by giving security and stability to human affairs." Franklin v. Albert, supra 381 Mass. at ---, Mass.Adv.Sh. at 2194, 411 N.E.2d 458, quoting Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879). They also "encourage plaintiffs to bring actions within prescribed deadlines when evidence...