Opinion
C.A. Nos. 97C-06-193 CHT, 97C-06-194 CHT, 97C-07-113 CHT
Submitted: March 28, 2002
Decided: April 25, 2002 Amended: April 29, 2002
On the Defendant's Motion to Dismiss Based on Statute of Limitations.
Thomas Crumplar, Esquire, Robert Jacobs, Esquire, Vincent J. X. Hedrick, II, Esquire, JACOBS CRUMPLAR, P.A., Wilmington, Delaware; and James L. Ferraro, Esquire, Ana Rivero-Alexander, Esquire, FERRARO and ASSOCIATES, P.A., Miami, Florida, Attorneys for the Plaintiffs.
James W. Semple, Esquire, MORRIS JAMES HITCHENS WILLIAMS, LLP, Wilmington, Delaware; and Patrick W. Lee, Esquire, William L. Anderson, Esquire, CROWELL MORING LLP, Washington, D.C. Attorneys for the Defendant.
OPINION AND ORDER
FACTS
The Plaintiffs are a group of eight children, along with their parents, who were born with medical conditions known as anophthalmia and microphthalmia. Children afflicted with anophthalmia are born with no eyes and children afflicted with microphthalmia are born with very small eyes. The lawsuits allege that these conditions were caused by exposure to a fungicide, known as Benlate, which is produced by the Defendant. Specifically, the mothers of the affected children were exposed to Benlate at some point during their pregnancies with those children.
The Defendant filed the instant motion seeking a dismissal of seven of the eight lawsuits filed. The basis for this motion is the two-year statute of limitations for personal injury actions as codified at 10 Del. C. § 8119. Section 8119 provides that personal injury actions must be filed within two years from the date upon which the injury was sustained. The Defendant asserts that the Plaintiffs sustained their injuries at birth. As a result, § 8119 bars their actions because more than two years elapsed between the dates of birth and the filing of the lawsuits.
The injuries occurred outside of the State of Delaware. Therefore the applicable statute of limitations is determined by the Delaware borrowing statute, 10 Del. C. § 8121. That section provides that the shorter of the two limitations periods, either the limitations period from the forum state or the period provided for in the jurisdiction where the injury occurred, will control. As a result, the Defendant contends that the Plaintiff's must meet the Delaware limitations period. The Plaintiffs do not disagree.
Blake Ison was born on November 13, 1993; Jesse Reilly was born on November 10, 1990; and Emily Bowen was born on August 9, 1994. Their complaints were filed on June 24, 1997. See C. A. No. 97C-06-193-CHT; and C. A. NO. 97C-06-194-CHT. Phillip Brown was born February 15, 1984; Gary Copland was born on June 6, 1992; Jared Johnstone was born on September 3, 1993; and Khalid Memon was born on June 24, 1985. Their complaint was filed on July 15, 1997. See C. A. No. 97C-07-113-CHT.
The Plaintiffs have opposed this motion. They contend that in situations where there is exposure to toxic chemicals, the moment upon which the statute of limitations begins to run is when the individual is chargeable with knowledge that his or her condition or injury is attributable to the toxic exposure. In the present context, that date did not occur until the Plaintiffs were informed or had reason to know of the alleged causal link between Benlate and the birth defects. That moment is not easily ascertained without delving into the factual circumstances of each case.
Oral argument was held on March 28, 2002, after the completion of all briefing on the matter. That which follows is the Court's resolution of the issues so presented.
DISCUSSION
A motion for judgment on the pleadings, brought pursuant to Superior Court Civil Rule 12(c), may be granted when the moving party establishes that it is entitled to judgment as a matter of law. The Court bases such a judgment on the pleadings and views them in a light most favorable to the nonmovant. Harman v. Masoneilan Intern., Inc., 442 A.2d 487 (Del. 1982). If however, "matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Super.Ct.Civ.R. 12(c).
The legal standard for granting a motion for summary judgment is where, considering the facts in a light most favorable to the nonmoving party, the Court finds that there are no material issues of fact in dispute and the moving party is entitled to judgment as a matter of law. Temple v. The Travelers Indem. Co., Del. Super., 98C-08-088, Carpenter, J. (Nov. 30, 2000) (Mem.Op. at 3). Because matters outside of the pleadings were introduced, the Plaintiff's motion will be considered as one seeking summary judgment.
Section 8119 provides in relevant part:
No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained . . . . (emphasis added).
Boiled down to its simplest terms, the issues facing the Court are: At what moment did the Plaintiffs "sustain" an injury for purposes of § 8119; and was the injury inherently unknowable so as to be subject to the "time of discovery" rule.
An "injury" for purposes of § 8119 is defined as "injuries to a person's security, which consists `in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation.'" Smith v. Goldstein, 447 F. Supp. 1244, 1247 (D.Del. 1978) (quoting Read v. Local Lodge 1284, 528 F.2d 823, 825 (3d Cir. 1975). The injury is deemed sustained "when a harmful effect first manifests itself and becomes physically ascertainable". Layton v. Allen, 246 A.2d 794, 798 (Del. 1968); Collins v. Wilmington Med. Ctr. Inc., 319 A.2d 107, 108 (Del. 1974); and Greco v. Univ. of Delaware, 619 A.2d 900, 905 (Del. 1993).
In most instances, the moment of injury is easily ascertained, because the injured party knows of his injury at the moment he or she is injured. However, in some instances, the injured party is unaware of the injury until some time after the injury has occurred. In response, the Courts have held that where an inherently unknowable or latent injury is involved, the statute of limitations is tolled until the injury manifests or becomes knowable to the plaintiff. Layton, 246 A.2d at 798; and Greco, 619 A.2d at 906. This exception, the "time of discovery rule", has been applied most often in cases where the plaintiff was exposed to asbestos-containing materials and ultimately contracts asbestosis. Bendix v. Stagg, 486 A.2d 1150 (Del. 1984); and In re Asbestos Litig., 673 A.2d 159 (Del. 1996). However, it has also been applied to claims involving other toxic substances where the manifestation of the resulting injury is delayed for a substantial period of time. Raymond v. Eli Lilly Co., 412 F. Supp. 1392 (D.N.H. 1976); aff'd, 556 F.2d 628 (1st Cir. N.H. 1977); see also Jackson v. Wilmington Housing Auth., Del. Super., C. A. No. 81C-MR-31, Balick, J. (April 10, 1986) (Mem. Op. at 1).
In the instant situation, the Plaintiffs seek to expand upon the time of discovery rule. They cite to DiMedio v. Consolidated Rail Corp., 649 F. Supp. 1340 (D.Del. 1986); Raymond v. Eli Lilly Co., supra; Bendix v. Stagg, supra; and In re Asbestos Litig., supra in support of their position. Again, they assert that as applied to their claims, these cases demand the tolling of limitations period until the Plaintiffs were "chargeable with knowledge" that their physical conditions were attributable to the exposure to Benlate. Unfortunately for the Plaintiffs, the Court is unable to apply the holdings from these cases in the present context because the Plaintiffs do not suffer from an inherently unknowable, latent injury and their medical conditions were not misdiagnosed.
Asbestosis is considered an inherently unknowable or latent disease because it is a disease of slow progression that takes years to manifest itself. Bendix, 486 A.2d at 1151. The injured party is often unaware of the injury at the time the injury is sustained (at the moment of exposure). Here, there was no latency. The injuries manifested and were ascertainable at the moment of birth. If there was any latency in these instances it was during the pregnancies and ended when the injuries manifested or became knowable at birth.
A misdiagnosis can also toll the statute of limitations. In re Asbestos Litig., 673 A.2d at 162. However, there were no misdiagnoses in the present case. The diagnoses of anophthalmia and microphthalmia were correctly made at birth and as a result, the limitations period began to run at that moment. Contrary to the Plaintiffs' stand on this issue, there need not be a diagnosis of the cause of the injury; only a correct diagnosis of the malady from which the plaintiff suffers. Collins, 319 A.2d at 108.
Nor does DiMedio, supra, help the Plaintiffs, and in fact, runs counter to the position they want the Court to adopt. In DiMedio, the District Court held that the statute of limitations period was tolled until the decedent's administrator became aware that the cause of death was asbestos-related. In reaching its decision, the Court analyzed interpretations of the time of discovery rule by courts from several jurisdictions. It held that the time of discovery rule was applicable to the wrongful death statute, 10 Del. C. § 8107, because that statute did not commence until the "accrual" of the "cause of action". DiMedio, 649 F. Supp at 1344. As applied to that type of statute, the time of discovery rule related to the cause of action, not the date of death or injury. Id.
Section 8107 holds:
No action to recover damages for wrongful death or for injury to personal property shall be brought after the expiration of 2 years from the accruing of the cause of action. (emphasis added).
The Court also briefly addressed the application of the time of discovery rule to personal injuries. It held that the time of discovery rule was applicable to personal injury actions arising from asbestos exposure regardless of whether the party pursuing the action was the injured party or the decedent's survivors.
Judge Schwartz' well-reasoned analysis of the time of discovery rule as applied to Delaware's wrongful death statute in DiMedio is instructive in resolving this issue. As is stated above, the time of discovery rule was found to be applicable with respect to the wrongful death statute because that statute is an "accrual" statute. Section 8119 is not an "accrual" statute. There is no ambiguity in the language contained therein and therefore it must be interpreted according to its plain meaning. Layton, 246 A.2d at 798. Applying the time of discovery rule to § 8119 simply means that the statute of limitations begins to run at the time that an individual knows or should have known that he or she was injured, not when the cause of that injury is discovered or that a legally cognizable nexus between that injury and tortious conduct is determined to exist. Again, the only exceptions to the time of discovery rule are of inherently unknowable or latent injuries or misdiagnosed injuries, and then, only until their existence is known or should have been known, nothing more.
The Plaintiffs' rely as well on Raymond v. Eli Lilly Co., supra. In that case, the plaintiff suffered personal injuries by virtue of her taking of a prescription drug as instructed by her physician. Thereafter she filed a products liability lawsuit against the manufacturer of the drug. The Court held that the time of discovery rule tolled the statute of limitations because the cause of her injuries was not ascertainable at the time they occurred. 412 F. Supp. at 1401.
The instant Plaintiffs argue that the Court should apply the rule of that case to their claims. That argument must fail. The statute at issue in Raymond, N.H.R.S.A. 508:4, was an accrual statute. It is unpersuasive because, and once again, § 8119 is not an accrual statute.
R.S.A. 508:4 read in pertinent part: "Except as otherwise provided by law all personal actions may be brought with six years after the cause of action accrued, and not afterwards." (emphasis added).
Moreover, as the Defendant suggests, the Court's interpretation of § 8119 is supported by 10 Del. C. § 8131. Section 8131 specifically addresses the limitations period granted to members or former members of the armed forces of the United States who served in Indochina during the Vietnam War. The statute of limitations for those classes of plaintiffs commences on the date that the injured party was told by a licensed physician that his or her injuries may have been caused by their exposure to phenoxy herbicides. Had the Delaware General Assembly intended to confer a similar exception to all parties injured by exposure to toxic chemicals, it would have enacted a statute similar to § 8131 and encompassed all toxic chemicals and not merely the ones mentioned in that statute.
Phenoxy herbicides are commonly referred to as "Agent Orange".
The Plaintiffs' final argument alleges that an adverse ruling by this Court would be tantamount to judicially creating a statute of repose because it would potentially bar the bringing of a lawsuit before an injured party could determine whether the origin of the injury was tortious and seek redress against the tortfeasor. The thrust of this argument is unclear and what the Plaintiffs seek to have the Court do if they are correct and § 8119 is a statute of repose, is not stated. See Pl's Resp. at 8, Ison v. DuPont, (C. A. Nos. 97C-06-193, 194 and 97C-07-113). It therefore cannot have any affect on the outcome of this aspect of the litigation.
A statute of limitations bars an action unless the plaintiff files the action within a specified period of time after the injury occurs. A statute of repose on the other hand terminates any right of action after a specified period of time has elapsed, regardless of forms of toxic exposure where the cause was unknowable, that change must be effectuated by the Delaware General Assembly.
Section 8119 was legislatively created and must be applied by this Court according to its language and prior judicial review. Simply put, any person who seeks compensation for a personal injury must institute litigation within two years of the date when the injuries about which he or she complains manifest themselves or forego the opportunity to do so pursuant to § 8119. The fact that the cause of the injury is unknown at that point in time, does not toll the running of the statutory period.
The Court acknowledges with sympathy the injuries suffered at birth by the minor Plaintiffs. In spite of those feelings, there is no doubt that the Plaintiffs in this case had knowledge of their injuries, those injuries were correctly diagnosed and suit was filed after the expiration of two years from that point in time in seven of the eight cases. Consequently, their actions are barred by § 8119. If the discovery rule is to be expanded to include claims due to all whether an injury has yet occurred. Black's Law Dictionary 1422-23 (7th ed. 1999). Even if § 8119 is determined to be a statute of repose, so what?
CONCLUSION
For the foregoing reasons, the Defendant's Motion to Dismiss Based on the Statute of Limitations must be, and is hereby granted. Judgment is hereby entered as a result in favor of the Defendant and against each of the Plaintiffs with the exception of Darren Griffin and his parents, Martin and Trudi Griffin, as to their claims for compensation based upon tortious personal injury.
IT IS SO ORDERED.