Opinion
C.A. No. 00C-07-068-FSS
July 7, 2003
Upon Defendants Georgia-Pacific Corporation's, Chevron USA's and Air Products Chemical's Motion for Reargument GRANTED
ORDER
Consistent with its preliminary comments during oral argument on September 10, 2002 in connection with Defendants' Motion to Dismiss the Second Amended Complaint, the court issued a short Order on May 19, 2003. The order purported to resolve Georgia-Pacific's and other similarly situated Defendants' claims that they were put on first notice about Plaintiff's claim after the statute of limitations had already run. Furthermore, according to Georgia-Pacific and the other similarly situated Defendants, under no conceivable set of circumstances could Plaintiff's complaint against them relate back under Superior Court Civil Rule 15. Therefore, they are entitled to summary judgment.
The May 19, 2003 order, in essence, held that the facts concerning the timing of Plaintiff's discovery that Georgia-Pacific and the other similarly situated Defendants had allegedly injured her was unclear. The court denied summary judgment on the statute of limitations issue and reiterated its insistence that the case against all remaining Defendants would go to trial, as scheduled. Georgia-Pacific and the other similarly situated Defendants filed timely motions for reargument. Basically, they allege that the court's understanding about the undisputed facts is wrong. Plaintiff responded to the motion for reargument, and Defendants replied.
After reviewing Plaintiff's deposition, it appears that Georgia-Pacific and the similarly situated Defendants are right. It is beyond dispute that, at the latest, in March 1999 one of Plaintiff's physicians, Dr. Sinkovic, told Plaintiff that she had a cancer caused either by exposure to vinyl chloride monomer or birth control pills. It is undisputed that Plaintiff first notified Georgia-Pacific and the similarly situated Defendants that she had a claim against them on June 5, 2001. That was more than two years after Plaintiff was notified by Dr. Sinkovic about her illness and its possible causes. The court is unpersuaded by Plaintiff's argument that the statute did not begin to run in March 1999 because Dr. Sinkovic offered alternative, potential causes of Plaintiff's cancer.
The court agrees that the statute of limitations began to run against Plaintiff in March 1999 when Dr. Sinkovic told her she had cancer that was caused either by exposure to vinyl chloride monomer or birth control pills. By her own admission, Plaintiff discounted birth control pills as the cause. More importantly, she knew her illness was caused by either of two sources. She knew she had used birth control pills and she knew she had been exposed to vinyl chloride monomer, albeit very briefly. From that point, Plaintiff had two years to investigate her possible claim and begin litigation against the responsible party. Within two years of her conversation with Dr. Sinkovic, Plaintiff filed suit. She did not notify Georgia-Pacific and the similarly situated Defendants of her claim and the record reveals nothing that would have put Georgia-Pacific and the similarly situated Defendants on notice that they might be embroiled in Plaintiff's litigation.
In closing, the court is satisfied that this decision is required by the statute of limitation, and the rules governing summary judgment. Furthermore, it is consistent with the court's long-standing approach to this litigation. From the beginning, the court has shown willingness to allow Plaintiff to pursue her claim against companies originally alleged to have supplied a dangerous substance to Plaintiff's employer. The court also has accepted Plaintiff's tenuous conspiracy claim, so far. But the court has refused to allow Plaintiff to involve the entire vinyl chloride industry, including its trade associations. Now, the court is preventing Plaintiff from proceeding against Defendants named long after Plaintiff knew of her injury and its potential causes. The court's willingness to allow this litigation to go forward against the original supplier Defendants is despite the fact that Plaintiff, at worst, was exposed to the supplier defendants' vinyl chloride monomer for only a few days.
The case will go to trial against the remaining Defendants on March 15, 2004 as scheduled. Meanwhile, for the foregoing reasons, upon submission and approval as to form, the court will enter summary judgment on the statute of limitations issue in favor of Georgia-Pacific and the similarly situated Defendants.
IT IS SO ORDERED.