Ray v. Upjohn Co.

• Decision Date: 05 March 1993
• Docket Number: No. 17820,17820
• Parties: Prod.Liab.Rep. (CCH) P 13,573 Ralph D. RAY, Plaintiff-Respondent, v. The UPJOHN COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 646

851 S.W.2d 646

Prod.Liab.Rep. (CCH) P 13,573

Ralph D. RAY, Plaintiff-Respondent, v. The UPJOHN COMPANY, Defendant-Appellant.

No. 17820.

Missouri Court of Appeals,

Southern District,

Division Two.

March 5, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 29, 1993.

Application to Transfer Denied May 25, 1993.

Kevin D. Meyers, Kansas City, Pat J. Merriman, Springfield, for plaintiff-respondent.

John W. Cowden, Phillip C. Rouse, Baker, Sterchi & Cowden, Kansas City, R. Lynn Myers, Springfield, for defendant-appellant.

PREWITT, Judge.

Plaintiff sought damages for injuries to his respiratory system caused by the inhalation of fumes from a chemical manufactured and sold by defendant. Following jury trial a verdict was received in favor of plaintiff for $1,500,000. Judgment was entered in accordance with the verdict. Defendant appeals, presenting twenty-two points relied on, three containing subparts totaling an additional twenty-two contentions. ¹

Plaintiff started work at a manufacturing plant of Dayco Corporation (Dayco) in Springfield on April 7, 1962. Dayco uses chemicals, including PAPI, a chemical manufactured and sold by defendant, in manufacturing automotive fan belts. Plaintiff contends this chemical caused his respiratory condition of "isocyanate asthma".

Dayco purchased barrels of PAPI from defendant for use in its manufacturing process. PAPI is a polymeric isocyanate. Isocyanates come in several different chemical forms and are sold and used by many different companies for a variety of purposes. Isocyanates have been known for some time to cause respiratory problems.

In manufacturing their product, Dayco dips a synthetic cord in a mixture known as J-1019. Dayco workers make J-1019 by combining PAPI and toluene. PAPI does not react with toluene and toluene is not known to cause respiratory problems. After being dipped in J-1019, the cord is heated in an oven to over 150 degrees. The cord then goes to a second oven where it is heated to more than 300 degrees. Then the cord is dipped in another chemical known as R-F-L. The cord is again sent through two ovens where it is heated to about 460 degrees. In becoming a final product, the cord goes through other various finishing stages which are not relevant to the issues before this court.

The finished belts are in various forms. Some are incased in industrial rubber while others are "raw edged", meaning that the inside cord remains partly visible. To fill special orders some finished belts are again dipped in J-1019. The finished belts are stored awaiting shipment at either a warehouse at the plant or at Dayco's downtown warehouse.

When plaintiff began at Dayco the dip containing PAPI was not being used. Dayco began using PAPI in late 1962. Plaintiff was off work from August 1962 until May 1963. When plaintiff returned to work, Dayco was using PAPI and plaintiff worked in the area where the belts were dipped and heated. In July 1963, plaintiff began experiencing trouble breathing and was examined by his medical doctor. At the request of his doctor, plaintiff obtained a sample of J-1019 for examination purposes. After inhaling fumes from the J-1019, plaintiff experienced a respiratory reaction. The doctor requested that plaintiff be moved out of the area where he was then working.

From 1963 until 1979 plaintiff worked in various areas of the plant. Some positions were 300 to 400 feet from where the belts were heated and dipped, while others took him directly into that area. Plaintiff experienced some breathing difficulties from 1966 through 1973, however he did not seek medical attention for them. In 1977 plaintiff was instructed to dip finished belts in J-1019. After being exposed to J-1019 for approximately 10 minutes, plaintiff experienced breathing difficulties. Plaintiff stopped work and sought medical attention from the Dayco nurse.

Plaintiff experienced no breathing problems between 1977 and 1979. In September 1979, while a trim machine operator, plaintiff collapsed and was taken to the hospital. Plaintiff was off work until March 1980, when he returned to work in the warehouse at the plant. Plaintiff was then moved to the downtown warehouse. His breathing problems progressively worsened after being moved downtown, until he was forced to quit work.

Plaintiff was first seen by Hans Weill, a medical doctor, in 1983. Dr. Weill is experienced in the study of respiratory problems resulting from exposure to isocyanates. Dr. Weill diagnosed plaintiff as having isocyanate asthma. Plaintiff filed this action on September 10, 1984.

Expert testimony established that exposure to certain levels of isocyanates is tolerable for most people. Isocyanate exposure is dangerous at any level however to a person who is "sensitized" to isocyanates. Plaintiff contended at trial that he became "sensitized" when the experiment was conducted with the J-1019 by his doctor in 1963.

Plaintiff presented testimony at trial seeking to support his theory that isocyanates were present throughout the Dayco plant. Dr. Weill testified that plaintiff's prolonged exposure over the years to the isocyanate caused his disabling asthma. Other relevant facts are stated in discussing defendant's specific points on appeal.

Defendant's first point states that the court erred in not entering judgment in its favor "because plaintiff's claims are time barred as a matter of law under RSMO. Sections 516.120 and 516.100 in that this action was filed more than five years after plaintiff's causes of action accrued." The facts relevant to this point, although generally duplicating facts earlier stated, are briefly set forth in the next two paragraphs.

Plaintiff started at Dayco in 1962. Plaintiff first had problems breathing in 1963. His doctor concluded that "J-1019", a mixture of chemicals, used at Dayco, including PAPI, made by defendant, was the cause. Plaintiff changed his jobs in the plant. In 1977 plaintiff had breathing problems as he dipped finished automotive fan belts in J-1019.

On September 6, 1979, plaintiff collapsed at work and was taken to the hospital. The cause was believed to be J-1019. He was off work for six months and changed jobs to Dayco's downtown warehouse. He returned to work in March 1980 and his breathing condition became worse. Plaintiff sought medical attention and quit his job. In 1983 plaintiff saw a medical doctor in New Orleans, Hans Weill. Dr. Weill diagnosed plaintiff as having isocyanate asthma. This action was filed on September 10, 1984.

Under the relevant facts this court concludes that this issue is controlled by Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 436 (Mo. banc 1984). There, the court said:

Although Mr. Elmore knew as early as 1973 that he had shortness of breath, and knew also, from reading publications of his union, that long-term breathing of asbestos dust caused asbestosis, he did not know that his condition was asbestosis until it was diagnosed by his physician on May 13, 1976. It was not until such diagnosis was made that the character of the condition (asbestosis) and its cause (breathing asbestos dust) first "came together" for the plaintiff. Thus, plaintiffs' cause of action accrued on May 13, 1976, the date of the diagnosis made by his doctor at her office in Kansas City and was not barred by Missouri's five-year statute, the appropriate statute of limitations.

A recent case similar to this matter and Elmore is Hogan v. Armstrong World Industries, 840 S.W.2d 230, 234-235 (Mo.App.1992). It follows Elmore in determining the statute of limitations did not start until the plaintiff was aware of his condition and its cause. Other cases examined which support the result reached here include Linn Reorganized School Dist. v. Butler Mfg., 672 S.W.2d 340, 342-344 (Mo. banc 1984); Krug v. Sterling Drug, Inc., 416 S.W.2d 143, 149-150 (Mo.1967); Lockett v. Owens-Corning Fiberglas, 808 S.W.2d 902, 906-908 (Mo.App.1991); Kestner v. Missouri Pacific R. Co., 785 S.W.2d 646 (Mo.App.1990). Point I is denied.

The second and third points of defendant's also relate to the statute of limitations. Defendant contends in Point II that the trial court erred in not submitting this defense to the jury "because Missouri law requires that the defense of the statute of limitations be submitted to the jury if there is a material issue of fact." Point III asserts the trial judge incorrectly ruled on this issue.

Defendant is correct that when different conclusions may be drawn from the evidence, the running of the statute of limitations is a jury question. See Hopkins v. Goose Creek Land Co., Inc., 673 S.W.2d 465, 469 (Mo.App.1984). See also Vogel v. A.G. Edwards & Sons, Inc., 801 S.W.2d 746, 756 (Mo.App.1990). In deciding Point I, it was determined that the date of diagnosis was the event that triggered the statute of limitations. Here, there is no dispute but that it was Dr. Weill who first diagnosed plaintiff as having isocyanate asthma in 1983. These facts were undisputed, and there are no material facts in dispute on this issue which would require it to be put to the jury. The trial judge ruled correctly. Points II and III are denied.

The next point we consider is defendant's fourth point. Defendant asserts that the trial court erred in not entering judgment in its favor because plaintiff "failed to make a submissible case on the element of causation, in that there was no evidence supporting Ray's theory that isocyanate fumes gassed-off finished automotive belts in the downtown warehouse."

George J. Heinz, M.D., testified that after plaintiff went to work at the downtown warehouse he believed plaintiff's breathing problems were "probably an isocyanate problem because that's the one that causes problems with very small amounts of chemical. Minute amounts will cause a problem in a patient's chest. Coupling that with the information I had that isocyanate was in the plant in '83 confirmed my suspicion that was what...