Williams v. Borden, Inc., 77-2109

• Decision Date: 28 November 1980
• Docket Number: No. 77-2109,77-2109
• Citation: 637 F.2d 731
• Parties: Dorothy WILLIAMS, Plaintiff-Appellant, v. BORDEN, INC., and Goodyear Tire and Rubber Company, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 731

637 F.2d 731

Dorothy WILLIAMS, Plaintiff-Appellant, v. BORDEN, INC., and Goodyear Tire and Rubber Company, Inc. Defendants-Appellees.

No. 77-2109.

United States Court of Appeals, Tenth Circuit.

Nov. 28, 1980.

Rehearing Denied Feb. 10, 1981.

Robert K. McCune, Oklahoma City, Okl. (Gene Stipe, of Stipe, Gossett, Stipe & Harper, Oklahoma City, Okl., was with him on the brief), for plaintiff-appellant.

Larry D. Ottaway, Oklahoma City, Okl. (Elliott C. Fenton of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., was with him on the brief), for defendant-appellee, Borden, Inc.

John T. Edwards, Oklahoma City, Okl. (Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, Okl., was with him on the brief), for defendant-appellee, Goodyear Tire and Rubber Co., Inc.

Before HOLLOWAY and McWILLIAMS, Circuit Judges, and MILLER, Judge. ^*

HOLLOWAY, Circuit Judge.

Plaintiff Dorothy Williams appeals from a summary judgment for defendants Borden, Inc. (Borden), and Goodyear Tire and Rubber Company, Inc. (Goodyear). Her complaint in this diversity action alleged claims in manufacturer's products liability and negligence. The substance of these claims was that defendants each manufactured a clear plastic film used in meat wrapping, which film was coated with polyvinyl chloride (PVC); ¹ that when the film was cut in the meat wrapping process through the use of a heated wire, the PVC decomposed into fumes containing toxic substances; that when plaintiff was working as a meat wrapper she breathed these fumes in her work; and that the fumes caused what has come to be known as "meat wrappers' syndrome," a chronic obstructive pulmonary disease of an asthmatic nature, producing permanent disability.

The district court granted defendants' summary judgment motions and dismissed the action as time-barred by the Oklahoma two-year statute of limitations provided in 12 O.S. § 95 (Third) (1971). ² More specifically, the court concluded that all five separate times from which accrual of the cause of action might be measured occurred more than two years prior to the commencement of the action; that there was no concealment which would toll the statute; and that therefore, under any theory recognized by the courts of Oklahoma as to the time of accrual, the action was barred. (I R. 334-36). ³

On appeal, plaintiff argues that the proper time of accrual of her claim was when she first received "competent medical advice that her condition was probably caused by the PVC fumes ..." (Brief of Appellant at 5; emphasis in original); that the district court erred in finding that such competent medical advice was received by plaintiff more than two years before commencement of her action on July 11, 1975; and that such advice could not have been before a November 5, 1973, article in the Journal of the American Medical Association, first recognizing the "meat wrapper's asthma" disease. (Reply Brief of Appellant at 5). She says that no earlier accrual could have occurred in March or April 1973, because statements then made would have been inadequate medical proof so that the test of having a claim on which she could have successfully concluded an action would not have been met. (Brief of Appellant at 14-15).

Union newsletters were received by plaintiff following the November 1973 A.M.A. article. It was not until she found out about the causal relation of the product to the disease in these 1975 newsletters that her cause of action accrued. (Id. at 16). Finally, plaintiff contends that "concealment may be present in the instant case from failure to warn of a potential hazard of foreseeable danger associated with the use of the meat wrapping film manufactured by Defendants." (Brief of Appellant at 17). She says that the district court erred in ruling that there was no concealment which would toll the statute of limitations.

We first consider what is the proper test to apply on accrual of such a cause of action under Oklahoma law.

I

As a general rule, mere ignorance of the existence of a cause of action or the facts constituting a cause of action on the part of the plaintiff will not toll the running of limitations. Knudson v. Weeks, 394 F.Supp. 963, 971 (W.D.Okl.); Moore v. Delivery Service, Inc., 618 P.2d 408 (Okl.Ct.Civ.App.). However, special rules apply in cases involving particular hardship or other circumstances justifying different accrual rules. For example, the Oklahoma Supreme Court has ruled that the limitation period does not begin to run in a malpractice action where a foreign object was left in a patient's body until the patient learns, or in the exercise of reasonable care and diligence should have learned, of the presence of the object. See Seitz v. Jones, 370 P.2d 300 (Okl.); and see Lewis v. Owen, 395 F.2d 537, 540 (10th Cir.). Again, in an action for the cumulative damages resulting from pollution of a stream it was held to be fundamental that the statute did not run until the damage was apparent from the dying of trees and the failure of crops to mature. Continental Oil Co. v. Williams, 250 P.2d 439, 441 (Okl.). In an action for damage from a water flood operation by oil producers it was held that the limitation period did not commence until the permanency of the damage becomes apparent to the injured party. Gouin v. Continental Oil Co., 590 P.2d 704, 707 (Okl.Ct.Civ.App.).

We find no clear Oklahoma decision as to whether some such special accrual rule would apply in the case of an occupational injury from the cumulative effect of an allegedly harmful product. Hence we must decide what the Oklahoma courts would probably do in such a case. Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809, 812 (2d Cir.). The district judge's order and his subsequent memorandum of findings and conclusions did not express his views on the applicable rule in Oklahoma or cite authority for his conclusions. (See I. R. 331, 334-35). ⁴

We are persuaded that the indications from these Oklahoma cases point to the probable application of a rule that such a claim for personal injury from an occupational disease allegedly produced by the cumulative effect of a dangerous product does not accrue "until the plaintiff knows, or as a reasonably prudent person should know, that he has the condition for which his action is brought and that defendant has caused it." Schiele v. Hobart Corp., 284 Or. 483, 587 P.2d 1010, 1013 (Or.). The Oregon Supreme Court there applied such an accrual rule in a persuasive opinion in a similar case of injury to a meat wrapper, allegedly due to fumes from polyvinyl chloride meat wrapping film. We feel that such a rule as was applied in the Schiele case is in accord with the limitations rules on the awareness of claims in the Oklahoma cases we have mentioned. It also accords with the remedial purpose evident in Oklahoma decisions with respect to products liability cases. See, e.g., Moss v. Polyco, Inc., 522 P.2d 622, 625-26 (Okl.); Kirkland v. General Motors Corp., 521 P.2d 1353, 1356, 1360-61 (Okl.). ⁵

We are, of course, first and mainly guided by the principles from the Oklahoma cases. However, in deciding what the Oklahoma courts would probably do we are justified in examining decisions from other jurisdictions. Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809, 812 (2d Cir.). The Oregon decision in the Schiele case is most persuasive because it involved a similar claim of injury from the effect on a meat wrapper of PVC fumes. The Oregon Court reversed a summary judgment based on limitations because the record did not demonstrate any prevalent knowledge of the dangers of fumes from polyvinyl chloride; it could not be said as a matter of law that "... a reasonably prudent person would have apprehended more than two years prior to the commencement of plaintiff's action that she was being seriously or permanently injured." 587 P.2d at 1014. ⁶ The court did not agree with the position that a positive diagnosis must exist to start the period running, but stated (587 P.2d at 1014):

On the other hand, we reject defendants' claim that knowledge of symptoms and their causal relationship to defendants' actions in and of itself initiates the running of the statute. We do not believe the legislature intended that the statute be applied in a manner which would require one to file an action for temporary sickness or discomfort or risk the loss of a right of action for permanent injury.

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.

We are persuaded that a similar rule on accrual would be applied by the Oklahoma courts in a case like this, namely, that the statute of limitations for such a claim does not begin to run until the plaintiff knows, or as a reasonably prudent person should know, that he has the condition for which his action is brought and that the defendant caused it. ⁷ We must now consider whether the summary judgment granted here was proper under such a standard on accrual.

II

Many of the significant facts appear in the deposition of plaintiff Williams. She testified there concerning her work as a meat wrapper in various supermarkets in Oklahoma and California from January 1950 until July 1972. In the spring of 1972 she had begun to cough a bit. Her eyes watered, her nose ran, and she had difficulty breathing. (III R. 38-40). On July 10, 1972, she quit work after she had tried to work but became too ill to continue. (Id. at 41). She was hospitalized in California in November 1972 after complaining that she was unable to breathe. Following eight days of hospitalization the doctor told her to return to work.

In January 1973 she contacted a California lung specialist, Dr. Scholdager. He diagnosed her condition as "acute spasmatic bronchial asthma." (Id. at 43-44). She then began thinking that the difficulty might have been...