Ward v. Desachem Co.

771 F.2d 663, 1985 U.S. App. LEXIS 22721
CourtCourt of Appeals for the Second Circuit
DecidedAugust 28, 1985
DocketNo. 1325, Docket 85-7226
StatusPublished
Cited by3 cases

This text of 771 F.2d 663 (Ward v. Desachem Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ward v. Desachem Co., 771 F.2d 663, 1985 U.S. App. LEXIS 22721 (2d Cir. 1985).

Opinion

LUMBARD, Circuit Judge:

John and Patricia Ward, plaintiffs-appellants in this employment-related personal injury action, appeal from a February 21, 1985 decision and order of the Eastern District of New York, Mark A. Costantino, J. The challenged decision and order granted summary judgment in favor of defendantsappellees The Desachem Company (“Desachem”) and Lyndal Chemical, Inc. (“Lyndal”) on the ground that New York’s three-year statute of limitations for personal injury suits bars the Wards’ action.1 The [665]*665district court based its findings upon a variety of supporting materials, including attorneys’ affidavits, answers to interrogatories, physicians’ reports, and — in particular — upon excerpts from the deposition of plaintiff John Ward. Although the facts in these documents are taken as undisputed for purposes of this appeal, we find that they are nevertheless insufficient to support a determination that the Wards’ action is time-barred; accordingly, we reverse the grant of summary judgment and remand for further proceedings.

The facts alleged by the Wards, and tak- ■ en as undisputed, are as follows. In January, 1974, John Ward commenced working as a night utility man and subsequently as a day-off relief man in the Woodside, New York, plant of Dairylea, Cooperative, Inc. (“Dairylea”). In January, 1978, Ward became a member of Dairylea’s clean-up crew; he held this position until 1983. While associated with the clean-up crew, Ward worked'40 to 70 hours per week cleaning machines and equipment with chlorine, caustic soda, and other chemicals; these chemicals were supplied by Desachem and Lyndal. On January 18, 1978, shortly after Ward began to work with the clean-up crew, he visited Dr. Martin Tuchman and complained of irritability, fatigue, and sensations in his chest. According to Ward’s deposition, Ward suspected at the time that these symptoms were related to his exposure to the chemical fumes and he had, in fact, earlier lodged a complaint to that effect with his supervisor. Nevertheless, after examining Ward Dr. Tuchman concluded that the patient was physically sound, but was suffering from the depression and fatigue often associated with overwork.

Bolstered by Dr. Tuchman’s essentially positive prognosis (and, incidentally, by his own strong performances in the 1978 and 1979 New York City Marathons), Ward continued to work on the Dairylea clean-up crew and consequently underwent continuous exposure to the toxic chemical fumes. In January, 1980, while using chlorine to clean a milk tank, Ward began to experience shortness of breath, dizziness, and other symptoms. Ward was concerned by this incident and by his continuing intermittent shortness of breath; consequently, in February and March of that year he received extensive physical examinations from a second physician, Dr. Erwin Cohen. Dr. Cohen concluded, as had Dr. Tuchman, that Ward was in good health; he warned, however, that Ward’s continued exposure to chemical fumes in the workplace might result in “respiratory sensitivity ... [and lead] to permanent damage.”

Finally, on October 27, 1980, Ward passed out while cleaning an unvented sugar tank with chlorine and caustic, and had to be pulled from the tank by a co-worker. Ward immediately visited a third physician, Dr. Melvin Holden, and apprised him of the symptoms he had had since the January milk tank incident. On December 10, 1980, following comprehensive examinations, Dr. Holden diagnosed Ward’s breathing difficulties as “asthma produced bybxposure to noxious fumes.” He recommended that Ward “scrupulously avoid” such fumes from then on.

Despite Dr. Holden’s diagnosis, Ward continued to work on the Dairylea clean-up crew. He eventually saw a fourth physician, Dr. John J. Rooney, who (in a letter to Dairylea dated February, 1982) reported that Ward was suffering from chronic asthmatic bronchitis, or intrinsic asthma. Dr. Rooney concluded that Ward could not tolerate continued exposure to chemicals. Ward finally terminated his association with the Dairylea clean-up crew in June, 1983.

The Wards filed this action against Desachem on July 28, 1981, and an amended summons and complaint against Lyndal on January 7, 1982, alleging that the two companies had manufactured, sold, supplied, and delivered the chemicals that had pro[666]*666duced the harmful toxic fumes.2 The Wards sought damages based on theories of negligence, breach of express and implied warranties, failure to warn, and strict tort liability. Desachem and Lyndal moved for summary judgment, alleging that the claims were time-barred pursuant to New York’s three-year statute of limitations for personal injuries. See N.Y.Civ.Prac.Law § 214(5) (McKinney 1984).

The district court granted the defendants’ motion for summary judgment, noting that under New York law the statute of limitations “begins to run from the time when liability for the wrong has arisen,” citing Schmidt v. Merchants Despatch Trans. Co., 270 N.Y. 287, 200 N.E. 824 (1936). The district court found that the defendants’ alleged liability to the Wards would have accrued around the time Ward consulted Dr. Tuchman in January, 1978; the court stated that at that point Ward had been “exposed [to the chemicals and had] apparently discovered his injury____”3 The court concluded that because the Wards did not institute their action against Desachem until mid-1981, the three-year limitation period had elapsed.

The district court went on to reject the plaintiffs’ attempt to invoke the case of Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297 (1981), cert. denied, 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840 (1982), as support for the proposition that in cases involving assimilation of harmful products or substances into the body — as distinguished from one-time insertion or implantation— the New York Statute of Limitations runs from the last date of exposure to the product or substance. See also Wright v. Carter Prods., 244 F.2d 53 (2d Cir.1957) (applying “last date of exposure rule” on theory that plaintiff’s last exposure to the harmful product, which occurred within the New York Statute of Limitations period, may have caused her entire injury); accord Lindsay v. Ortho Pharmaceutical Corp., 481 F.Supp. 314, 341-43 (E.D.N.Y.1979), rev’d on other grounds, 637 F.2d 87 (2d Cir.1980). The district court stated that, assuming Steinhardt stands for this principle, it applies only when the “time-bomb” effect of an assimilated substance makes it impossible to discover the harm during the three-year limitation period. Citing the deposition testimony of John Ward, the court stated that Ward knew of his illness and its cause when he visited Dr. Tuchman in 1978 and, consequently, that it would be inappropriate to apply the Steinhardt “last date of exposure rule” to the Wards’ claim.

The central issue on appeal, therefore, is whether the district court erred in holding that the “date of last exposure rule” recently reaffirmed in Steinhardt

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771 F.2d 663, 1985 U.S. App. LEXIS 22721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-desachem-co-ca2-1985.