IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-IA-00962-SCT
F & S SAND, INC., F & S ABRASIVE COMPANY, INC., DEPENDABLE ABRASIVES, INC. (DISSOLVED), MISSISSIPPI VALLEY SILICA COMPANY, INC., EMPIRE ABRASIVE EQUIPMENT CORPORATION AND DRAVO BASIC MATERIALS COMPANY, INC. AND AMERICAN OPTICAL CORPORATION
v.
TED STRINGFELLOW
DATE OF JUDGMENT: 06/19/2017 TRIAL JUDGE: HON. LAMAR PICKARD TRIAL COURT ATTORNEYS: PATRICK MALOUF JOHN TIMOTHY GIVENS JENNIFER JONES SKIPPER COLLEEN SUZANNE CERKAN WELCH GLEN AUSTIN STEWART W. MARK EDWARDS JOSEPH GEORGE BALADI COURT FROM WHICH APPEALED: JEFFERSON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: RANDI PERESICH MUELLER JOSEPH GEORGE BALADI JENNIFER JONES SKIPPER SILAS W. McCHAREN JOHN D. COSMICH LAKEYSHA GREER ISAAC MARK JOHNSON GOLDBERG RONALD G. PERESICH W. MARK EDWARDS JOHANNA MALBROUGH McMULLAN JENNIFER MORAN YOUNG J. COLLINS WOHNER, JR. WALTER T. JOHNSON COREY DONALD HINSHAW M. CHRISTINE CROCKETT WHITE SANDRA DENISE BUCHANAN THOMAS RAY JULIAN MICHAEL D. SIMMONS ATTORNEYS FOR APPELLEE: DAVID NEIL McCARTY JOHN TIMOTHY GIVENS TIMOTHY W. PORTER PATRICK MALOUF ROBERT ALLEN SMITH, JR. NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND RENDERED - 02/28/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2017-IA-00963-SCT
DRAVO BASIC MATERIALS COMPANY, INC., EMPIRE ABRASIVE EQUIPMENT CORPORATION, F&S ABRASIVE COMPANY, INC., F&S SAND, INC. DEPENDABLE AND DEPENDABLE ABRASIVES, INC. (DISSOLVED), MISSISSIPPI VALLEY SILICA COMPANY, INC.
v. TED STRINGFELLOW
DATE OF JUDGMENT: 06/19/2017 TRIAL JUDGE: LAMAR PICKARD COURT FROM WHICH APPEALED: JEFFERSON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: SILAS W. McCHAREN RONALD G. PERESICH J. COLLINS WOHNER JOHN D. COSMICH WALTER T. JOHNSON W. MARK EDWARDS MICHAEL D. SIMMONS JOHANNA MALBROUGH McMULLAN M. CHRISTINE CROCKETT WHITE RANDI PERESICH MUELLER LAKEYSHA GREER ISAAC JOSEPH GEORGE BALADI JENNIFER JONES SKIPPER SANDRA DENISE BUCHANAN COREY DONALD HINSHAW MARK JOHNSON GOLDBERG THOMAS RAY JULIAN JENNIFER MORAN YOUNG ATTORNEYS FOR APPELLEE: DAVID NEIL McCARTY JOHN TIMOTHY GIVENS TIMOTHY W. PORTER PATRICK MALOUF ROBERT ALLEN SMITH NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND RENDERED - 02/28/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
NO. 2017-IA-01049-SCT F&S SAND, INC., F&S ABRASIVE COMPANY, INC., DEPENDABLE ABRASIVES, INC. (DISSOLVED), MISSISSIPPI VALLEY SILICA COMPANY, INC., EMPIRE ABRASIVE EQUIPMENT CORPORATION AND DRAVO BASIC MATERIALS COMPANY, INC.
DATE OF JUDGMENT: 07/10/2017 TRIAL JUDGE: LAMAR PICKARD COURT FROM WHICH APPEALED: JEFFERSON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: SILAS W. McCHAREN RONALD G. PERESICH J. COLLINS WOHNER JOHN D. COSMICH WALTER T. JOHNSON W. MARK EDWARDS MICHAEL D. SIMMONS JOHANNA MALBROUGH McMULLAN M. CHRISTINE CROCKETT WHITE RANDI PERESICH MUELLER LAKEYSHA GREER ISAAC JOSEPH GEORGE BALADI JENNIFER JONES SKIPPER SANDRA DENISE BUCHANAN COREY DONALD HINSHAW MARK JOHNSON GOLDBERG THOMAS RAY JULIAN JENNIFER MORAN YOUNG ATTORNEYS FOR APPELLEE: DAVID NEIL McCARTY JOHN TIMOTHY GIVENS TIMOTHY W. PORTER PATRICK MALOUF ROBERT ALLEN SMITH NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND RENDERED - 02/28/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
4 CONSOLIDATED WITH
NO. 2017-IA-01059-SCT
EMPIRE ABRASIVE EQUIPMENT CORPORATION, DRAVO BASIC MATERIALS COMPANY, INC., MISSISSIPPI VALLEY SILICA COMPANY, INC., DEPENDABLE ABRASIVES, INC. (DISSOLVED), F&S SAND ABRASIVE COMPANY, INC., F&S SAND, INC.
DATE OF JUDGMENT: 07/10/2017 TRIAL JUDGE: LAMAR PICKARD COURT FROM WHICH APPEALED: JEFFERSON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: SILAS W. McCHAREN RONALD G. PERESICH J. COLLINS WOHNER JOHN D. COSMICH WALTER T. JOHNSON W. MARK EDWARDS MICHAEL D. SIMMONS JOHANNA MALBROUGH McMULLAN M. CHRISTINE CROCKETT WHITE RANDI PERESICH MUELLER LAKEYSHA GREER ISAAC JOSEPH GEORGE BALADI JENNIFER JONES SKIPPER SANDRA DENISE BUCHANAN COREY DONALD HINSHAW MARK JOHNSON GOLDBERG THOMAS RAY JULIAN JENNIFER MORAN YOUNG ATTORNEYS FOR APPELLEE: DAVID NEIL McCARTY JOHN TIMOTHY GIVENS TIMOTHY W. PORTER PATRICK MALOUF ROBERT ALLEN SMITH NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND RENDERED - 02/28/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
NO. 2017-IA-01061-SCT
AMERICAN OPTICAL COMPANY, MISSISSIPPI VALLEY SILICA COMPANY, INC., MINE SAFETY APPLIANCE COMPANY, LLC, DEPENDABLE ABRASIVES, INC. (DISSOLVED), EMPIRE ABRASIVE EQUIPMENT CORPORATION, DRAVO BASIC MATERIALS COMPANY, INC., F & S SAND, INC. AND F & S ABRASIVE COMPANY, INC.
DATE OF JUDGMENT: 07/10/2017 TRIAL JUDGE: LAMAR PICKARD COURT FROM WHICH APPEALED: JEFFERSON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: SILAS W. McCHAREN RONALD G. PERESICH J. COLLINS WOHNER JOHN D. COSMICH WALTER T. JOHNSON W. MARK EDWARDS MICHAEL D. SIMMONS JOHANNA MALBROUGH McMULLAN M. CHRISTINE CROCKETT WHITE RANDI PERESICH MUELLER LAKEYSHA GREER ISAAC JOSEPH GEORGE BALADI JENNIFER JONES SKIPPER SANDRA DENISE BUCHANAN COREY DONALD HINSHAW MARK JOHNSON GOLDBERG THOMAS RAY JULIAN JENNIFER MORAN YOUNG ATTORNEYS FOR APPELLEE: DAVID NEIL McCARTY JOHN TIMOTHY GIVENS TIMOTHY W. PORTER PATRICK MALOUF ROBERT ALLEN SMITH NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND RENDERED - 02/28/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE RANDOLPH, C.J., MAXWELL AND BEAM, JJ.
BEAM, JUSTICE, FOR THE COURT:
¶1. This interlocutory appeal comes before the Court following the Jefferson County
Circuit Court’s denial of Defendants’ motions for transfer of venue and summary judgment
in a silica case. On appeal, F&S Sand, Inc.; F&S Sand Abrasive Company, Inc.; Dependable
Abrasives, Inc. (Dissolved); Mississippi Valley Silica Company, Inc.; Empire Abrasive
Equipment Corporation; Dravo Basic Materials Company, Inc.; and American Optical
Corporation (collectively, “Defendants”) ask this Court to review whether venue was proper
in Jefferson County and whether the claim was time-barred by the statute of limitations. This
Court reverses the Circuit Court’s denial of summary judgment and renders judgment in
favor of Defendants. The venue issue is moot because the claim is time-barred.
FACTS AND PROCEDURAL HISTORY
¶2. On September 26, 2016, plaintiff Ted Stringfellow filed his second silica complaint
in Jefferson County after obtaining dismissal of his first silica case in Georgia in 2015.
Stringfellow alleged that his complicated silicosis and silica-related conditions had been
caused by exposure to respirable crystalline silica during his work as a sandblaster
7 throughout Mississippi, Alabama, Florida, and Georgia. On November 10, 2016,
Stringfellow noticed his own deposition and on May 15, 2017, Defendants filed their motions
for summary judgment and transfer of venue.
¶3. In their motion for summary judgment, Defendants provided multiple medical exhibits
evidencing Stringfellow’s knowledge of the injury dating as far back as November 2007,
although Stringfellow contended that he had no knowledge of the injury until he was
diagnosed with silicosis in October 2014. In November 2007, Stringfellow presented to the
hospital with a cough, and medical records evince that doctors discussed his work history as
a construction worker. In May 2008, Stringfellow again presented to the hospital
complaining of a cough. After two chest x-rays, he was discharged with a diagnosis of
bronchitis, painful respiration, other lung disease, diabetes, liver disorder, cough, and
shortness of breath. Stringfellow signed discharge papers recommending that he follow up
with a pulmonologist, a recommendation Stringfellow acknowledges he disregarded.
Moreover, Stringfellow submitted his medical records, which contained findings consistent
with “pneumoconiosis (such as silicosis . . . )” to the Social Security Administration for
disability. Although the record reflects discrepancies in the timing of the application, either
2008 or 2011, Stringfellow discovered his injury well before the time he filed his complaint.
¶4. At the motion hearing on June 19, 2017, the trial judge stated that, while
Stringfellow’s failure to follow up was troubling because plaintiffs have a responsibility to
investigate an injury, he felt ruling on the motion for summary judgment would have been
premature. Thereafter, Defendants petitioned this Court for interlocutory appeal, arguing that
8 the trial court’s denial of their motions for summary judgment and transfer of venue was
erroneous. The Defeneant’s petition was granted. M.R.A.P. 5.
LAW AND ANALYSIS
I. Standard of Review
¶5. When considering issues of law, such as statutes of limitation, this Court employs a
de novo review. Andrus v. Ellis, 887 So. 2d 175, 179 (Miss. 2004). When reviewing a trial
court’s grant or denial of a motion to dismiss or a motion for summary judgment, this Court
likewise applies a de novo standard of review. Whitaker v. Limeco Corp., 32 So. 3d 429,
433–34 (Miss. 2010) (citing Burleson v. Lathem, 968 So. 2d 930, 932 (Miss. 2007)).
II. Whether Stringfellow’s claims are time-barred by the statute of limitations.
¶6. Under Mississippi Code Section 15-1-49, a plaintiff’s cause of action for a latent
injury or disease accrues at the point at which he discovered, or by reasonable diligence
should have discovered the injury. Section 15-1-49 provides in relevant part,
(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.
(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.
Miss. Code Ann. § 15-1-49 (Rev. 2012).
¶7. In determining whether a plaintiff knew or reasonably should have known that he had
an injury, this Court properly considers the symptoms the plaintiff experienced and the action
9 he took as a result. Am. Optical Corp. v. Rankin, 227 So. 3d 1062, 1068 (Miss. 2017). To
benefit from the discovery rule, “a plaintiff must be reasonably diligent in investigating the
circumstances surrounding the injury.” Wayne Gen. Hosp. v. Hayes, 868 So. 2d 997, 1001
(Miss. 2004). “Because there is no bright line rule, the specific facts of the case will
determine whether the plaintiff knew or reasonabl[y] should have known that an injury
existed.” Rankin, 227 So. 3d at 1075 (quoting PPG Architectural Finishes, Inc. v. Lowery,
909 So. 2d 47, 51 (Miss. 2005)). “This Court has observed that an individual’s seeking
medical attention for side effects or symptoms may show knowledge of an injury, although
other persons may not discover an injury until they review pertinent medical records.” Id.
(quoting id.). Others might gain enough actual knowledge through personal observation or
experience. Id. (citing id.).
¶8. In Rankin, this Court held that the applicable three-year statute of limitations began
to run under the discovery rule at the time the worker sought treatment for chronic
obstructive pulmonary disease rather than the date he was first diagnosed with silicosis by
his retained expert pulmonologist. Id. at 1074. While the dissent in Rankin disagreed with
the majority that COPD should have been a trigger for the presence of silicosis, id. at 1074
(Kitchens, J., dissenting), this Court held that the evidence conclusively showed plaintiff’s
knowledge of injury. Id. at 1074.
¶9. This Court has held that “[c]auses of action accrue upon discovery of the injury, not
discovery of the injury and its cause.” Rankin, 227 So. 3d at 1068 (emphasis removed)
(quoting Ridgway Lane & Assocs., Inc. v. Watson, 189 So. 3d 626, 629 (Miss. 2016)).
10 “Knowledge of the cause of the injury is irrelevant to the analysis; rather, the inquiry is when
the plaintiff knew or should have known of an injury.” Rankin, 227 So. 3d at 1068 (quoting
Lincoln Elec. Co. v. McLemore, 54 So. 3d 833, 838 (Miss. 2010)).
¶10. Here, as early as November 2007, Stringfellow presented to the hospital with a cough
and shortness of breath. At that time, he gave his work history as a construction worker, a
fact evidenced by the notes in his medical records. In May 2008, he again presented to the
hospital complaining of a cough. After two chest x-rays, a diagnosis of bronchitis and other
lung disease, doctors recommended pulmonary follow-up. At the motion hearing, Plaintiff’s
counsel conceded that he had failed to pursue the recommended follow-up because he was
no longer experiencing the symptoms. Moreover, Stringfellow submitted his medical
records, notating findings consistent with “pneumoconiosis (such as silicosis . . . )” to the
Social Security Administration for disability. Lastly, Stringfellow was on notice of the
prevalence of silicosis in his field of work because of his relationships with his father and his
friend who both worked in sandblasting and had filed silicosis suits. While this fact is not
determinative of Stringfellow’s knowledge of his injury, it suggests that Stringfellow knew
of a potential injury.
¶11. The trial judge correctly identified the standard for the discovery rule: “[T]he question
of whether a statute of limitations is tolled by the discovery rule often turns on the factual
determination of ‘what the plaintiff knew and when.’” Stringer v. Trapp, 30 So. 3d 339, 342
(Miss. 2010) (quoting Huss v. Gayden, 991 So. 2d 162, 168 (Miss. 2008)). But this Court
finds that the trial judge failed to adhere to the second portion, which states, “‘[O]ccasionally
11 the question of whether the suit is barred by the statute of limitations is a question of fact for
the jury; however, as with other putative fact questions, the question may be taken away from
the jury if reasonable minds could not differ as to the conclusion.’” Stringer, 30 So. 3d at 342
(quoting Smith v. Sanders, 485 So. 2d 1051, 1053 (Miss. 1986)).
¶12. This Court has held that a plaintiff may not take shelter in the discovery rule when
reasonable minds could not differ that the plaintiff possessed sufficient information to bring
a claim. Raddin v. Manchester Educ. Found., 175 So. 3d 1243, 1249 (Miss. 2015) (citing
Huss, 991 So. 2d at 165-66). Based on the facts presented at the motion hearing, this Court
holds that the statute-of-limitations issue is not a question of fact for the jury because
reasonable minds could not differ about the conclusion.
CONCLUSION
¶13. This Court finds that the trial court erred in denying summary judgment because the
claims are time-barred. Accordingly, this Court reverses the trial court’s denial of summary
judgment and renders judgment in favor of Defendants.
¶14. REVERSED AND RENDERED.
RANDOLPH, C.J., MAXWELL, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., AND COLEMAN, J. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY KITCHENS, P.J.
KITCHENS, PRESIDING JUSTICE, DISSENTING:
¶15. I respectfully dissent. The rule remains in this state that the issue of when the plaintiff
knew or should have known of an injury for the purposes of the discovery rule is a fact
question for the jury. Peoples Bank of Biloxi v. McAdams, 171 So. 3d 505, 509 (Miss.
12 2015). Only when reasonable minds could not differ on the conclusion may the question be
taken away from the jury and determined by the court. Id. at 509-10. While it does appear
from the majority’s recitation of the facts that no reasonable minds could differ on when Ted
Stringfellow discovered his injury, the facts of this case are significantly less clear than
represented by the majority opinion. Because genuine issues of material fact exist, a jury
should determine whether Stringfellow knew or should have known of his injury before
September 26, 2013.
¶16. On September 26, 2016, Stringfellow filed his complaint claiming injuries of
“complicated silicosis and silica related conditions, caused by exposure to respirable
crystalline silica while working as a sandblaster throughout Mississippi, Alabama, Florida,
and Georgia.” Mississippi Code Section 15-1-49(2) establishes when the three-year statute
of limitations began to run in Stringfellow’s case. The statute provides that, “[i]n actions for
which no other period of limitation is prescribed and which involve latent injury or disease,
the cause of action does not accrue until the plaintiff has discovered, or by reasonable
diligence should have discovered, the injury.” Miss. Code Ann. § 15-1-49(2) (Rev. 2012).
This Court has held that, under the plain language of the statute, a cause of action accrues
upon discovery of the injury, not discovery of the injury and its cause. Angle v. Koppers,
Inc., 42 So. 3d 1, 5 (Miss. 2010).1
1 I continue to disagree vehemently with the Court’s holding that a claim can accrue when the plaintiff knows of an injury but not its cause. See City of Tupelo v. O’Callaghan, 208 So. 3d 556, 574 (Kitchens, J., dissenting); Lincoln Electric Co. v. McLemore, 54 So. 3d 833, 840 (Kitchens J., dissenting); Angle, 42 So. 3d at 9 (Kitchens, J, dissenting). But because Angle is the relevant precedent of this Court, I apply it for purposes of my analysis of the timeliness of Stringfellow’s complaint.
13 ¶17. A latent injury is one that is “undiscoverable by reasonable methods.” PPG
Architectural Finishes, Inc. v. Lowery, 909 So. 2d 47, 51(Miss. 2005). The question of
when the plaintiff discovered or should have discovered a latent injury is fact-intensive,
requiring an examination of what the plaintiff knew and when. McAdams, 171 So. 3d at 509.
The Court has held that some plaintiffs might not with reasonable diligence discover an
injury until reviewing medical records, while others may discover an injury through personal
observation and experience. Lowery, 909 So. 2d at 51. A plaintiff’s receipt of medical
attention for side effects and symptoms can confirm that the plaintiff knew of an injury. Id.
When a genuine dispute exists, the issue of when the plaintiff “discovered, or by reasonable
diligence should have discovered,” the injury is a question of fact for the jury. Weathers v.
Metro. Life Ins. Co., 14 So. 3d 688, 692 (Miss. 2009) (quoting Donald v. Amoco Prod. Co.,
735 So. 2d 161, 167 (Miss.1999)). On summary judgment, “[t]he moving party bears the
burden to show that no genuine issue of material fact exists, and the evidence must be viewed
in the light most favorable to the nonmovant.” Thrash v. Deutsch, Kerrigan & Stiles, LLP,
183 So. 3d 838, 842 (Miss. 2016).
¶18. I would hold that genuine issues of material fact exist on the question of when
Stringfellow discovered, or with reasonable diligence should have discovered, his injury. In
American Optical Corporation v. Rankin, this Court looked to the complaint to determine
the injury claimed by the plaintiff, which was “lung disease and silica related conditions.”
Am. Optical Corp. v. Estate of Rankin, 227 So. 3d 1062, 1074 (Miss. 2017). While I would
not have found Rankin’s silicosis claim to be time-barred, the Court disagreed, finding that,
14 because Rankin had sought treatment for a chronic obstructive pulmonary disease and other
lung conditions several years before filing the complaint, reasonable minds could not differ
that he had knowledge of the injury outside the limitations period. Id.
¶19. Stringfellow’s complaint seeks recovery for “complicated silicosis and silica related
conditions, caused by exposure to respirable crystalline silica.” Unlike Rankin, Stringfellow
specifically alleged that complicated silicosis was his injury. Thus, this Court’s inquiry must
focus on when Stringfellow discovered or reasonably should have discovered his injury,
complicated silicosis.
¶20. The medical records show that, in November 2007, Stringfellow visited a hospital for
fluid in his abdomen caused by cirrhosis of the liver. At that time, he was not seeking
treatment for a lung condition. A CT scan that included the lower lungs was performed and
showed “lateral pleural effusions with a bibasilar interstitial pattern and mild mosaic
perfusion,” but it did not reveal silicosis. Stringfellow was not diagnosed with any lung
condition in 2007. A March 2008 chest x-ray included with his medical records showed
“reticular-nodular lung pattern of unknown chronicity,” but did not mention silicosis.
¶21. In May 2008, Stringfellow went to the hospital complaining of a productive cough.
A CT scan of his chest showed “[f]indings consistent with pneumoconiosis (such as silicosis
or coal workers’ pneumoconiosis) or histoplasmosis. Correlation with patient’s history is
recommended.” In this medical record, silicosis was cited by the radiologist as one of three
possibilities. Nothing indicates that any whisper of the possibility of silicosis identified in the
CT scan reached Stringfellow’s ears.The radiologist recommended a review of Stringfellow’s
15 history. Ultimately, Stringfellow was not diagnosed with silicosis. Instead, Stringfellow
received a diagnosis of bronchitis not otherwise specified; secondarily, he was diagnosed
with painful respiration, other lung disease not elsewhere classified, cough, shortness of
breath, diabetes, and liver disorder. He was prescribed an antibiotic for the bronchitis. While
it was recommended that Stringfellow follow up with a pulmonologist, he claimed that he
failed to do so because he no longer was experiencing symptoms. Because Stringfellow’s
diagnosis was bronchitis, not silicosis, a reasonable jury could find that his not having
followed up with a pulmonologist for bronchitis does not render his silicosis claim untimely.
¶22. The medical records described above were submitted with Stringfellow’s Social
Security disability claim made in 2008. Again, those records do not contain a diagnosis of
silicosis, and reasonable minds could differ on whether Stringfellow knew or should have
known of his injury at the time those records were submitted. And the Social Security claim
was for cirrhosis, anemia, and ascites, not for a lung condition.
¶23. Stringfellow also received treatment on March 10, 2013, for a debilitating stroke.
During this visit, a chest x-ray showed “[b]ilateral hilar calcified granulomas consistent with
previous granulomatous disease, which may represent old tuberculosis or MAC infection,”
and “[l]eft midlung atelectasis versus scarring.” A hospital note said that a head and neck CT
scan had shown “mediastinal and pulmonary findings consistent with previous
granulomatous disease or sarcoid.” A physician’s handwritten note says that Stringfellow had
worked in a shipyard for years and had a history of sandblasting and that he had chest x-ray
findings consistent with silicosis; another such note says that his chest x-ray was classical for
16 silicosis, that he had a strong occupational exposure history and that the condition should be
followed up. While his patient summary on discharge noted a secondary diagnosis of “silica
pneumocon nec,” his discharge instructions did not include a recommendation that he follow
up with any medical care provider concerning possible silicosis. Again, nothing indicates that
Stringfellow, who was undisputedly undergoing treatment for a debilitating stroke and was
severely impaired neurologically, ever received this information about the condition of his
lungs. After Stringfellow’s hospital discharge four days after admission, he spent thirty-two
days in a rehabilitation center recovering from his stroke. And his discharge instructions from
the rehabilitation center did not include a recommendation that he seek treatment for his
lungs. Nor did any of the physicians who treated him in the aftermath of the stroke mention
silicosis or any lung problems. Stringfellow finally was diagnosed with silicosis on October
7, 2014.
¶24. The evidence raises genuine issues of material fact about when Stringfellow
discovered, or reasonably should have discovered, his claimed injury of “complicated
silicosis and silica related conditions.” Stringfellow’s medical records show that the only
lung condition for which he received treatment before 2014 was a productive cough and
shortness of breath, which medical professionals informed him was bronchitis. While
Stringfellow’s medical records predating September 26, 2013, do contain the word
“silicosis,” genuine issues of material fact are present about when Stringfellow should be
charged with knowledge of his claimed injury, complicated silicosis. This Court has not held
that the statute of limitations on a silicosis claim begins to run at the first mention of silicosis
17 in a medical record. Rather, what the patient knew or should have known is the relevant
consideration in determining when the limitations period commenced. Considering the
evidence in the light most favorable to Stringfellow, reasonable minds could differ on when
Stringfellow knew or should have known of his claimed injury. I would affirm the trial
court’s denial of the defendants’ motion for summary judgment.
KING, P.J., AND COLEMAN, J., JOIN THIS OPINION.
COLEMAN, JUSTICE, DISSENTING:
¶25. The question of whether summary judgment should have been granted in the case sub
judice is a close one, and when doubt exists about whether summary judgment should be
granted, it should be denied to preserve the plaintiff’s right to have a jury consider his claims.
As more fully developed below, the evidence of record in the case sub judice does not rise
to the level of clarity seen in American Optical Corporation v. Rankin, 227 So. 3d 1062
(Miss. 2017), the recent case upon which the majority relies in reversing the trial court’s
denial of summary judgment. Because the defendants have failed to convince me that no
issue of material fact exists regarding the question of whether the statute of limitations has
run against the plaintiff’s claims, I must, with respect, dissent.
¶26. As an initial matter, Stringfellow requested a jury trial, but the granting of summary
judgment in favor of a civil defendant necessarily ends a plaintiff’s effort to place his claims
before a jury—something our Constitution of 1890 gives him the right to do. Miss. Const.
art. 3, § 31. While the right to a jury trial is not lost when no issues of fact exist for a jury
to consider, Brown v. Credit Center, Inc., 444 So. 2d 358, 362 (Miss.1983), the potential
18 loss of the right leads courts to deny summary judgment when the question is close. Ladnier
v. Hester, 98 So. 3d 1025, 1028 (¶ 9) (Miss. 2012) (“If there is any doubt regarding the
existence of a genuine issue of material fact, the benefit goes to the nonmovant.”)
¶27. In short, the defendants in Rankin provided clearer evidence showing that the plaintiff
had knowledge of his alleged injury well before three years prior to filing his complaint. The
Rankin Court relied heavily on an entry in Rankin’s medical records that showed that Rankin
and his wife “relayed his medical history” to caregivers far earlier than three years before he
filed his complaint. Rankin, 227 So. 3d at 1069 (¶ 27). In concluding its explanation for
rendering judgment in favor of the defendants, the Rankin Court explained that Rankin’s
complaint alleged that Rankin’s injury had been “lung disease and silica related conditions,
caused by exposure to respirable crystalline silica.” Id. at 1074 (¶ 48). The special verdict
form presented to the jury asked, “Do you find by a preponderance of the evidence that
[Rankin] knew or should have known before May 13, 2010, that he had the lung injury
alleged in this lawsuit?” Id. Because the undisputed evidence showed that Rankin knew in
2007 of his lung disease when he sought treatment for and described it to caregivers, the
Rankin Court concluded that the trial court erred in refusing to grant the defendants’ motion
for directed verdict. Id.
¶28. In the case sub judice, Stringfellow’s complaint alleges injuries consisting of
complicated silicosis and silica-related conditions. “The motion for a summary judgment
challenges the very existence of legal sufficiency of the claim or defense to which it is
addressed. . . .” Brent Towing Co., Inc. v. Scott Petroleum Corp., 735 So. 2d 355, 358 (¶
19 12) (Miss. 1999). Stringfellow’s medical records, which show that in 2007 and 2008 he
sought treatment for a cough, that in 2008 doctors diagnosed him with bronchitis, painful
respiration, other lung disease, diabetes, liver disorder, cough, and shortness of breath,
considered in the light most favorable to Stringfellow, are not enough to show that he knew
at the relevant times of the injury he alleges in his complaint—complicated silicosis and
silica-related conditions.
¶29. Ridgway Lane & Associates, Inc. v. Watson, 189 So. 3d 626 (Miss. 2016), hits closer
to the factual mark set by the instant appeal. In Watson, the plaintiff filed suit against the
firm responsible for managing his residence. Id. at 627 (¶ 1). The home had a history of
leaking, and Marcus Byrd—the original plaintiff who died during the pendency of the
litigation—claimed that mold buildup caused by the leaks caused him to contract
bronchiectasis. Id. at 628 (¶ 4). Byrd’s treating physician testified that he diagnosed Byrd
with “the beginning” of bronchiectasis on January 21, 2008. Id. at 628 (¶ 5). Byrd and his
wife filed suit on April 21, 2011, or three years and three months after the evidenced
diagnosis of “the beginning” of the alleged disease. Id. at 628 (¶ 6). The defendants moved
for summary judgment, which was denied as to Byrd’s personal injury claim, and the Court
granted the defendants’ petition for interlocutory appeal. Id. at 627 (¶ 1). The unanimous
Watson Court affirmed the trial court’s denial of summary judgment, holding the January
2008 diagnosis of “the beginnings” of the plaintiff’s alleged disease, along with the
accompanying radiology report indicating “[t]here may even be a small element of traction
20 bronchiectasis in this region as well,” insufficient to take the issue from the jury. Id. at 630
(¶ 15).
¶30. Because the evidence in the case sub judice does not rise to the Rankin level of
certainty in showing that Stringfellow knew of his alleged injury, the question becomes one
of what Stringfellow reasonably should have known. As in Watson, when the Court held that
evidence of “the beginnings” of an alleged disease did not support the grant of summary
judgment on statute of limitations grounds, the evidence in the instant case, taken in a light
most favorable to Stringfellow, falls short of a conclusive demonstration that Stringfellow
knew of the complicated silicosis and silica-related conditions alleged. Accordingly, it
becomes a question for the jury to decide.
KITCHENS, P.J., JOINS THIS OPINION IN PART.