Pulido v. United Parcel Service General Services, Civil No. 97-6080-FR.

• Decision Date: 08 December 1998
• Docket Number: Civil No. 97-6080-FR.
• Citation: 31 F.Supp.2d 809
• Parties: Saul PULIDO and Richard Nichols, Plaintiffs, v. UNITED PARCEL SERVICE GENERAL SERVICES CO., a Delaware corporation; Inforite Corp., a New York corporation; Toppan Moore Co., a Japanese corporation; and II Morrow, Inc., an Oregon corporation, Defendants.
• Court: U.S. District Court — District of Oregon

31 F.Supp.2d 809

Saul PULIDO and Richard Nichols, Plaintiffs, v. UNITED PARCEL SERVICE GENERAL SERVICES CO., a Delaware corporation; Inforite Corp., a New York corporation; Toppan Moore Co., a Japanese corporation; and II Morrow, Inc., an Oregon corporation, Defendants.

Civil No. 97-6080-FR.

United States District Court, D. Oregon.

December 8, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Arthur C. Johnson, Johnson, Clifton, Larson & Corson, Eugene, OR, William Rutzick, Corrie J. Yackulic, Schroeter, Goldmark & Bender, Seattle, WA, David N. Mark, Seattle, WA, for Plaintiffs.

Christopher W. Angius, Joy Ellis, Perkins Coie, Portland, OR, G.H. Gromel, Jr., Cassandra C. Collins, Hunton & Williams, Richmond, VA, Anne E. Kershaw, Hunton & Williams, New York, NY, for Defendants United Parcel Service General Services Co. and II Morrow, Inc.

Richard A. Lee, Molly Jo Mullen, Bodyfelt, Mount, Stroup & Chamberlain, Portland, OR, for Defendant Inforite Corp.

James D. Hibbard, John T. Kaempf, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, OR, for Defendant Toppan Moore Co.

OPINION

FRYE, District Judge.

The matters before the court are (1) the motion for summary judgment against plaintiff Richard Nichols by defendant Inforite pursuant to FRCP 56(# 43); (2) the motion for summary judgment against plaintiff Richard Nichols by defendants United Parcel Service General Services Co. and II Morrow, Inc. pursuant to Fed.R.Civ.P. 56(b)(# 44); (3) the motion for summary judgment against plaintiff Saul Pulido by defendants United Parcel Service General Services Co. and II Morrow, Inc. pursuant to Fed.R.Civ.P. 56(b) (# 48); and (4) the motion for summary judgment against plaintiff Richard Nichols by defendant Toppan Moore Co., Ltd. pursuant to FRCP 56(# 54).

BACKGROUND

On April 4, 1997, plaintiff Saul Pulido, a package car driver employed by United Parcel Service, filed this action. He alleges that he suffered repetitive stress injuries from using hand-held computers known as delivery information acquisition devices (DIADs) in the performance of his job.

On June 9, 1997, an amended complaint was filed, adding the claims of plaintiff Richard Nichols for damages for repetitive stress injuries caused by the use of DIADs in the performance of his job.

The undisputed facts have been previously stated. See Opinion of March 17, 1998, 1998 WL 125507 (D.Or.).

CONTENTIONS OF THE PARTIES

All defendants argue that the claim of plaintiff Richard Nichols is barred by the statute of limitations of the State of Ohio. Nichols contends that the statute of limitations of the State of Ohio did not begin to run until September of 1995, rather than May of 1995 as the defendants contend.

Defendants United Parcel Service General Services Co. (UPSGSC) and II Morrow, Inc. (II Morrow) contend that they did not market or place into the stream of commerce the DIAD or the DIAD Vehicle Adaptor ("DVA") and, consequently, they cannot be held strictly liable. UPSGSC contends that the claims of the plaintiffs against it are barred by the various workers' compensation laws of the home states of the plaintiffs. II Morrow also contends that it owed no duty to the plaintiffs which would give rise to a negligence claim.

The plaintiffs contend that their claims against UPSGSC are not barred by the workers' compensation laws of their home states because UPSGSC is neither a joint employer with UPS, Inc. nor the employer of the plaintiffs. The plaintiffs further contend that UPSGSC and II Morrow are sellers of the DIAD and the DVA to other UPS corporate entities and therefore placed the products into the stream of commerce. The plaintiffs further contend that UPSGSC and II Morrow are liable because they knew that Inforite would market the DIAD as its own product, the AS 1050. The plaintiffs also argue that the involvement of II Morrow as the designer and manufacturer of the DIAD IA-1 is enough to give rise to a negligence cause of action against II Morrow.

UPSGSC and II Morrow contend that plaintiff Saul Pulido failed to file his negligence claim within the two-year Oregon statute of limitation. These defendants also contend that the Illinois savings statute does not apply here because the Illinois Supreme Court has determined that the Illinois tort reform act, of which the savings statute is a part, is unconstitutional.

Pulido contends that Illinois law applies, and that the Illinois savings statute allows his claim to proceed.

LEGAL STANDARDS

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On a motion for summary judgment, all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir.1987).

ANALYSIS AND RULING

1. Choice of Law

As this court has previously stated, it will apply the law of the plaintiffs' home states to the product liability claims. See Opinion dated March 17, 1998, 1998 WL 125507 (D.Or.). The parties agree.

The parties also agree that the workers' compensation laws of the plaintiffs' home states apply to this action. The court will apply those laws. The parties do not agree on the laws that apply to Pulido's negligence claim.

When the laws of more than one jurisdiction arguably apply to an issue, a federal court exercising diversity jurisdiction must apply the choice of law rules of the state in which it is located. This court will apply the choice of law rules of the State of Oregon. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).

Under Oregon law, the court must determine whether there is an actual conflict of law on the disputed issue; if not, Oregon law applies. Cropp v. Interstate Distrib. Co., 129 Or.App. 510, 515-16, 880 P.2d 464 (dissenting opinion), rev. denied, 320 Or. 407, 887 P.2d 791 (1994). The court must next determine whether both states have substantial interests in having their laws applied. If not, there is no choice of law issue, and the court applies the law of the one state with substantial interests. Dabbs v. Silver Eagle Mfg. Co., 98 Or.App. 581, 583-84, 779 P.2d 1104, rev. denied, 308 Or. 608, 784 P.2d 1101 (1989). If both states have substantial interests, the Oregon Supreme Court has adopted the "most significant relationship" approach of the Restatement (Second) Conflict of Laws. Erwin v. Thomas, 264 Or. 454, 456, 506 P.2d 494 (1973).

2. Ohio Statute of Limitations for Product Liability

The defendants contend that plaintiff Nichols' claim is barred by the two-year statute of limitations of the State of Ohio, the home state of plaintiff Nichols, because he suspected in May of 1995 that the DIAD caused his injuries. Nichols contends that he did not associate his symptoms with a serious or permanent condition, and he did not know that his injury was proximately caused by the defendants' product until September of 1995, which does not time-bar his claim.

In the State of Ohio, an action based on a product liability claim "shall be brought within two years after the cause of action accrues." Ohio Rev.Code § 2305.10(A). "[A] cause of action accrues ... when the injury or loss to person or property occurs." Id. The Ohio statute of limitations is to be construed liberally and works as a two-pronged rule: "First, a plaintiff must know or reasonably should have known that he has been injured; and second, a plaintiff must know or reasonably should have known that his injury was proximately caused by conduct of the defendant." Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 467 N.E.2d 1378, 1384 (Ohio App. 6 Dist. 1983). "The statute of limitations begins to run when a reasonably prudent person associates his symptoms with a serious or permanent condition and at the same time perceives the role which the defendant has played in inducing that condition." Id. at 1386, n. 10 (quoting Schiele v. Hobart Corp., 284 Or. 483, 490, 587 P.2d 1010-14 (Or.1978)).

In May of 1995, Nichols suspected that his symptoms were caused by the DIAD that he was using. Answer to Interrogatories, p. 6 (attached as Exhibit 2 to UPSGSC and II Morrow, Inc's Concise Statement of Facts in Support of Motion for Summary Judgment Against Plaintiff Richard Nichols). When questioned during depositions about the DIAD that he now claims caused his injuries, Nichols was asked, "What was it about May of 1995 that led you to have that suspicion?" Deposition of Richard Nichols, p. 102 (attached as Exhibit A to Supplemental Declaration of Stephen M. Feldman in Support of UPSGSC and II Morrow's Motion for Summary Judgment Against Plaintiff Richard Nichols). His response was, "I know I was experiencing a lot of pain, but I don't remember the specifies." Id.

In September of 1995, Nichols obtained a right hand and wrist injury diagnosis from a physician. See Declaration of Plaintiff Rick Nichols in Opposition to Motions for Summary Judgment, p. 5. Nichols had not obtained treatment for his hand or wrist prior to September of 1995. At that time, he stated as the reason he had not received treatment: "This is because the symptoms were just not regular enough or severe enough for me to consider them to be an `injury' that justified treatment or any medical attention until then." Id. In December of 1995, Nichols had problems with his left hand. Id.

This case differs from the companion case, McCloskey v. United Parcel Serv. Gen. Servs. Co., Civil No. 95-420-FR, where summary...