IN THE SUPREME COURT OF MISSISSIPPI
NO. 2009-CA-00320-SCT
LINCOLN ELECTRIC COMPANY AND THE
ESAB GROUP, INC.
v.
STANLEY MCLEMORE
DATE OF JUDGMENT: 11/26/2008
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: COPIAH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: MICHAEL W. ULMER
JAMES JOSEPH CRONGEYER, JR.
HUGH RUSTON COMLEY
JAMES MATTHEW TYRONE
MARK C. CARROLL
R. DAVID KAUFMAN
M. PATRICK MCDOWELL
ATTORNEYS FOR APPELLEE: JAMES D. SHANNON
JAMIE H. EDWARDS
JOE ROBERT NORTON, IV
JOHN E. HERRICK
ELIZABETH C. WARD
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND RENDERED - 12/09/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CHANDLER, JUSTICE, FOR THE COURT:
¶1. This case involves a welder’s claim of product liability and failure to warn against
Lincoln Electric Company (Lincoln) and the ESAB Group, Inc. (ESAB), manufacturers of
welding rods (“Defendants”), for exposure to harmful welding fumes that resulted in his
eventual diagnosis of manganism, a neurological disease caused by high exposure to
manganese. The plaintiff, Stanley McLemore, alleged that he had used the Defendants’ rods,
which contained manganese, to weld materials together.
¶2. McLemore filed a complaint in the Circuit Court of Copiah County on November 14,
2005. An amended complaint followed on March 3, 2006. In April 2007, the Defendants
filed a motion for summary judgment, claiming that McLemore had filed suit outside the
three-year statute of limitations. The trial court denied the motion for summary judgment.
The Defendants also filed a motion to exclude the expert testimony of Dr. Michael Swash,
which the trial court denied.
¶3. The matter proceeded to trial on November 6, 2008. A jury returned a verdict in favor
of McLemore finding the Defendants liable and awarding McLemore $1,855,000. The
Defendants filed post-trial motions for judgment notwithstanding the verdict (JNOV) or, in
the alternative, for a new trial. Following the trial court’s denial of the motions, the
Defendants filed a notice of appeal raising three issues:
I. Whether the trial court improperly admitted McLemore’s medical
expert’s diagnosis.
II. Whether McLemore proved that each Defendant’s products were a
substantial factor in causing his injury.
III. Whether McLemore’s claims were barred by the statute of limitations,
and whether the form of the verdict misstated the relevant question on the
issue of statute of limitations.
¶4. Finding the issue of the statute of limitations to be dispositive, this Court reverses and
renders the trial court judgment enforcing the verdict of the jury.
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FACTS
¶5. Stanley McLemore worked as a welder for almost thirty years. In the course of his
career, McLemore worked all over the country, with two long stints at Grand Gulf Nuclear
Power Station from 1980 through 1984 and from 1993 through 1998. In December 2001,
McLemore experienced difficulty welding and developed slowness in his left hand and arm.
McLemore was left-handed and relied on his left hand in his welding work.
¶6. At first, McLemore thought that he had pinched a nerve, and he went to see a
chiropractor. The chiropractor referred McLemore to Dr. Joseph Farina, a neurologist. Dr.
Farina informed McLemore that he had Parkinsonism or Parkinsonian syndrome, and his
condition could have been related to welding. McLemore went to the office of an attorney
whom he previously had used for legal work, after Dr. Farina examined him and mentioned
the attorney’s name.
¶7. Subsequently, McLemore saw Dr. Michael Graeber, Dr. Albert Hung, Dr. Michael
Swash, Dr. Robert Herdon, Dr. David Doorenbos, and Defendants’ medical expert, Dr. Ray
Watts. When Dr. Hung examined McLemore in Boston in December 2002, he advised
McLemore to discontinue welding.
¶8. Dr. Swash was McLemore’s main expert witness at trial. This doctor was the only
physician to diagnose McLemore with manganism. According to Dr. Swash, manganism is
a syndrome with features of atypical Parkinsonism that is caused by exposure to manganese.
While McLemore saw a host of other physicians between December 2001 and his trial date
in 2008, they determined that he had some form of Parkinsonism. A few considered
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manganism, but ultimately decided against that diagnosis. Only Dr. Swash determined that
McLemore had manganism.
¶9. McLemore stated that he first learned that he suffered from manganism in 2005.
However, McLemore filed various lawsuits claiming neurological injuries from exposure to
welding products as early as February 2004. The first complaint was filed on February 13,
2004, against various corporations for injuries suffered from those defendants’ sale and/or
distribution of defective welding consumables. The complaint did not name either Lincoln
Electric or ESAB, although it named John Doe Defendants 1-20. On August 31, 2004,
McLemore filed a complaint alleging “serious neurological injuries” due to exposure to
manganese in the Defendants’ welding consumables. This complaint named Lincoln Electric
and ESAB and other defendants, was not served on anyone, and was dismissed voluntarily
by McLemore on December 28, 2004. McLemore filed another complaint on November 14,
2005, alleging “serious neurological injuries” due to exposure to manganese in the
Defendants’ welding consumables. This complaint was not served on anyone. McLemore
filed an amended complaint on March 3, 2006, again alleging “serious neurological injuries”
due to exposure to manganese in the Defendants’ welding consumables. The Defendants
were served with the amended complaint no later than March 14, 2006.
DISCUSSION
I. Statute of limitations and form of the verdict
¶10. This Court applies a de novo standard of review to the statute of limitations. Harris
v. Darby, 17 So. 3d 1076, 1078 (Miss. 2009) (citing Ellis v. Anderson Tully Co., 727 So. 2d
716, 718 (Miss. 1998)).
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¶11. The Defendants claim that the trial court erred on two issues concerning the statute
of limitations by (1) denying the Defendants’ motion for JNOV (and their motion for
summary judgment) for McLemore’s alleged failure to file within the three-year statute of
limitations under Mississippi Code Section 15-1-49, based on the date of discovery or date
he should have discovered his injury, and (2) giving a jury-verdict form that asked the jury
to determine when McLemore should have known about his manganism instead of the more
general inquiry of when he should have known about his injury. Finding the first of the two
issues dispositive, this Court will not address the form of the jury verdict.
A. Section 15-1-49
¶12. Defendants argue that McLemore knew that he had an injury on September 3, 2002,
when Dr. Farina diagnosed him with Parkinsonism and informed him that his condition may
have been related to his occupation as a welder. Accordingly, the Defendants reason that
McLemore should have filed suit on or before September 3, 2005, yet he filed this cause of
action on November 14, 2005.
¶13. McLemore, on the other hand, argues that his cause of action did not accrue until
October 2005, when he was diagnosed with manganism.1 Further, McLemore argues that
both parties were in agreement that welding fumes do not cause Parkinson’s disease.
However, it also was undisputed that welding fumes may cause manganism. McLemore
contends that he had no cause of action until he knew that he had manganism. Prior to his
1
There is some dispute between the parties concerning who informed McLemore that
he had manganism and when that diagnosis was given to McLemore. The general date
proposed by McLemore is October 2005.
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diagnosis, McLemore visited physicians in an effort to identify his condition. Until he knew
he had manganism, McLemore argued that he did not know that the welding fumes had
caused his damages.
¶14. Mississippi Code Section 15-1-49 concerns the three-year statute of limitations and
states:
(1) All actions for which no other period of limitation is prescribed shall be
commenced within three (3) years next after the cause of 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. 2003).
¶15. Pursuant to Mississippi Code Section 15-1-49(2), a plaintiff’s cause of action accrues
at the point at which he discovered, or by reasonable diligence should have discovered, the
injury. Therefore, this Court must consider the application of the latent-injury/discovery rule
and whether McLemore’s statute of limitations began to run when either (1) he knew of his
Parkinsonism, or (2) he knew of the diagnosis of manganism.
¶16. While McLemore’s November 2008 trial preceded this Court’s most recent
application of Section 15-1-49(2), and the litigants and trial court did not have the benefit of
this Court’s decision in Angle v. Koppers, Inc., 42 So. 3d 1 (Miss. 2010), the case
nonetheless is applicable to this appeal. In Angle, this Court determined that the plain
language of Section 15-1-49 supports an interpretation “that the cause of action accrued upon
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discovery of the injury, not discovery of the injury and its cause.” Id. at 5 (emphasis in
original).
¶17. In Angle, the plaintiff filed suit on March 16, 2006, against various defendants
including Koppers, a wood-treatment plant, and others for injuries suffered as a result of
harmful exposure to toxic chemicals from 1984 through 2001. Id. at 2. The defendants
moved for summary judgment based on Section 15-1-49 and its three-year statute of
limitations. Id. at 3. Angle’s last injury occurred in 2001, five years before she filed the
complaint. Id.
¶18. Without providing a known date, Angle responded that the statute of limitations began
to run when she knew that she had an injury and the cause of her injury. Id. at 3. The Court
found that the “cause of action accrued upon discovery of the injury, not discovery of the
injury and its cause.” Id. at 5 (emphasis in original). The Court found that Angle’s injury
accrued, at the latest, in 2001, when she was diagnosed with her last disease. Id. at 7.
¶19. In reaching its decision, this Court considered a number of prior cases, including
Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704 (Miss. 1990); Schiro v. American Tobacco
Company, 611 So. 2d 962 (Miss. 1992); and PPG Architectural Finishes, Inc. v. Lowery,
909 So. 2d 47, 48 (Miss. 2005). Owens-Illinois was an asbestosis case that handed down
prior to the addition of subsection (2) to Mississippi Code Section 15-1-49, concerning the
common-law discovery rule. Owens-Illinois, 573 So. 2d at 705. The plaintiff, Edwards, a
shipbuilder, was exposed to asbestos from the 1940s through 1984. Id. at 705. Edwards’s
last exposure to asbestos occurred no later than December 31, 1976. Id. He had shortness
of breath in 1980. Id. Medical personnel told Edwards that he should be examined for the
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possibility of asbestosis in 1983; however; x-rays revealed no signs of the disease. Id.
Edwards was diagnosed finally with pulmonary pleural asbestosis on August 26, 1986. Id.
He filed suit on September 29, 1986, as part of a consolidated action. Id. The Court found
that the cause of action had accrued and the statute of limitations period began to run “when
the plaintiff can reasonably be held to have knowledge of the injury or disease.” Id. at 709.
The Court held that the plaintiff’s action accrued on August 26, 1986, the date of his
diagnosis of pulmonary pleural asbestosis.
¶20. This Court also discussed its decision in Schiro v. American Tobacco Company, 611
So. 2d 962 (Miss. 1992). See Angle, 42 So. 3d at 6. The Schiro court cited Owens-Illinois
for the rule that “a cause of action accrues when it comes into existence as an enforceable
claim; that is, when the right to sue becomes vested.” Schiro, 611 So. 2d. at 964 (citing
Owens-Illinois, 573 So. 2d at 706). In Shiro, the plaintiff smoked for more than thirty years.
Schiro, 611 So. 2d at 963. She had a series of health problems including a diagnosis of
emphysema in the late 1960s or 1970s; an aortoiliac bypass in 1975; a few episodes of
hemoptysis (coughing up blood) in April and November 1981; detection of a small malignant
mass in December 1981; and diagnosis of the mass as cancerous in January 24, 1982. Id.
She filed suit on January 22, 1988. Id. The defense asserted that her cause of action accrued
on either the day she stopped smoking, the day she coughed up blood and believed that she
had cancer, or the day when the doctor diagnosed her with a malignant lung mass, all of
which fell outside the then-six-year limitation period. Id. The Court held that the statute of
limitations began to run on the day Schiro discovered that the mass was cancerous, because,
prior to that time, her suit would have been premature. Id. at 965. While the Schiro court
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discussed the cause of the cancer as smoking, the Angle court noted that “the proper inquiry
under the statute should have been the plaintiff’s discovery of the injury or disease . . . not
the discovery of a causative relationship between smoking and the cancer.” Angle, 42 So.
3d at 6.
¶21. More recently, in Lowery, a plaintiff went to work shortly after the office had been
painted on October 1, 1999. PPG Architectural Finishes, Inc. v. Lowery, 909 So. 2d 47, 48
(Miss. 2005). Lowery noticed a strong paint odor when she arrived at work. Id. After a few
hours, she became sick and disoriented. Id. Lowery also contacted the poison control center
and reported the problem. Id. After passing out, Lowery went to the hospital and was
treated and released. Id. at 48-49. When Lowery returned to the emergency room three days
later, the doctor’s impression was that she had experienced toxin exposure. Id.
¶22. Lowery filed suit on June 12, 2000, and then amended her complaint to add PPG as
a defendant on November 13, 2003. Lowery, 909 So. 2d at 49. PPG asserted the affirmative
defense of statute of limitations. Id. In Lowery, the Court explained that a latent injury is
one which is “undiscoverable by reasonable methods.” Id. at 51 (citing Donald v. Amoco
Prod. Co., 735 So. 2d 161, 168 (Miss. 1999)). The Court considered “whether the plaintiff
knew or reasonably should have known that an injury existed.” Lowery, 909 So. 2d at 51
(citing Sweeney v. Preston, 642 So. 2d 332, 336 (Miss. 1994)). To determine whether she
knew or reasonably should have known that she had an injury, this Court analyzed the
actions taken by Lowery. Lowery, 909 So. 2d at 51. The Court held that Lowery knew of
her injury on October 1, 1999, the date of exposure. Id. In fact, the Court noted that
Lowery, by her own admission, “knew when, how and by whom she had been injured on the
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night of her acute exposure.” Id. She had called the poison control center, had sought
treatment from the emergency room, and had suffered immediate problems from exposure
to the paint. Id. at 52.
¶23. Applying Angle to the instant case, McLemore knew of his injury on September 3,
2002. At that time, Dr. Farina informed him of the correlation between his symptoms and
welding. As clarified in Angle, Section 15-1-49 does not require a plaintiff to know the
cause of the injury before accrual of the cause of action. Angle, 42 So. 3d at 6. While the
notice of this causal relationship generally is irrelevant to the accrual of the cause of action,
it shows McLemore’s knowledge of his injury at that time. Furthermore, McLemore
thereafter sought legal advice which resulted in an initial filing of a lawsuit in 2004 claiming
“serious neurological injury” from exposure to manganese products. Consequently,
McLemore’s argument that he had no knowledge of his injury and its relation to welding
until his diagnosis of manganism fails under this Court’s holdings in Angle and Lowery.
Under Angle, knowledge of the cause of an injury is irrelevant to the analysis. Angle, 42 So.
3d at 5. The inquiry is when the party knew or should have known of an injury. Id. Further,
applying Lowery, this Court considers the actions taken by a party. Lowery, 909 So. 2d at
51.
¶24. McLemore had difficulty using his left hand in December 2001. By September 3,
2002, Dr. Farina had informed McLemore that he had Parkinsonism and that it might have
been related to his welding work. Thereafter, McLemore sought legal advice and filed a
complaint alleging “serious neurological injury” related to manganese exposure. These
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events and actions by McLemore show that he knew, (or should have known) no later than
September 2002, that he had an injury.
B. Tolling
¶25. Although not central to the disposition of this case, this Court will address the issue
of tolling for a complete analysis. In a footnote to their brief, the Defendants raised concerns
about multiple filings of this suit. As noted previously, the Defendants contend that
McLemore knew or should have known that he had an injury on September 3, 2002, after his
visit with Dr. Farina. At that medical appointment, Dr. Farina told McLemore that his
condition might be caused by welding and that he should hire a lawyer. The Defendants
contend that McLemore should have filed his complaint by September 3, 2005, but the
complaint was not filed until November 14, 2005, and an amended complaint was not served
on them until March 2006.
¶26. In this context, the Defendants maintain that any argument by McLemore that the
filing of a prior lawsuit tolled the statute of limitations is incorrect. On August 31, 2004,
McLemore filed a complaint which named the Defendants, was not served on anyone, and
was dismissed voluntarily by McLemore on December 28, 2004.2 McLemore filed another
complaint on November 14, 2005, (which was not served on anyone) and filed an amended
complaint on March 3, 2006. The Defendants were served with the amended complaint no
later than March 14, 2006. Based on these events, the Defendants assert that (1) McLemore
2
McLemore also filed a suit in February 2004. The Defendants take no issue with
the February complaint and begin their tolling discussion with the August 31, 2004,
complaint.
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should have filed suit by September 3, 2005, (three years after his known injury) and did not;
and (2) any argument concerning tolling of the statute of limitations is without merit.
¶27. McLemore argues that there was proper tolling. In the alternative, he argues that his
injury did not accrue until he was diagnosed with manganism.
¶28. Recently, in Marshall v. Kansas City Southern Railways Company, 7 So. 3d 210,
213-214 (Miss. 2009), this Court addressed whether a voluntary dismissal of a complaint had
any effect on the tolling of the statute of limitations. We found that it did not toll the
limitations period. Id. at 213-14. In Marshall, this Court stated:
This Court previously has held that a voluntary dismissal without prejudice:
[D]oes not deprive the defendant of any defense he may be
entitled to make to the new suit, nor confer any new right or
advantage on the complainant (plaintiff), and hence it will not
have the effect of excepting from the period prescribed by the
statute of limitations, the time during which that suit was
pending.
Smith v. Copiah County, 232 Miss. 838, 100 So. 2d 614, 616 (1958) (quoting
W.T. Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8, 9 (1926) (quoting
Nevitt v. Bacon, 32 Miss. 212, 228 (1856) (emphasis added))).
Id. In other words, when a party chooses voluntarily to dismiss an action, the party receives
no tolling benefit.
¶29. “Ordinarily, when a complaint is filed and properly served, that complaint tolls the
running of the statute of limitations.” Price v. Clark, 21 So. 3d 509, 521 (Miss. 2009) (citing
Owens v. Mai, 891 So. 2d 220, 223 (Miss. 2005)). We keep in mind that “[w]hile the filing
of a complaint tolls the statute of limitations, if service is not made upon the defendant within
120 days as required by M.R.C.P. 4(h), the limitations period resumes running at the end of
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the 120 days.” Owens v. Mai, 891 So. 2d 220, 223 (Miss. 2005). However, when a party
chooses voluntarily to dismiss the action, the complaint does not toll the running of the statue
of limitations. Marshall, 7 So. 3d at 213. In Koestler v. Mississippi Baptist Health Systems,
Inc., 45 So. 3d 280, 283 (Miss. 2010), this Court again held that “[t]he filing of a complaint
does not toll the statute of limitations when the plaintiff voluntarily dismisses the suit.”
¶30. McLemore voluntarily dismissed his August 31, 2004, complaint on December 28,
2004. Because McLemore voluntarily dismissed the August 2004 complaint, his cause of
action was not tolled. McLemore filed his next complaint, which was not served, on
November 14, 2005. Assuming that the November 2005 complaint was filed and served on
a Defendant, the complaint still was filed outside the three-year statute of limitations which
began to run on September 3, 2002, and ended September 3, 2005. The March 2006
amended complaint that was filed and served on the Defendants, likewise, has no bearing on
the analysis of this case because it also was filed outside the three-year limitations period.
CONCLUSION
¶31. The judgment of the Circuit Court of Copiah County enforcing the jury verdict is
reversed and rendered. McLemore failed to file his cause of action within the applicable
statute of limitations, and his voluntary dismissal of the August 2004 complaint provided no
tolling for his action.
¶32. REVERSED AND RENDERED.
WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR AND
PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY GRAVES, P.J.
KITCHENS, JUSTICE, DISSENTING:
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¶33. For the reasons stated in my dissenting opinion in Angle v. Koppers, 42 So. 3d 1, 9-10
(Miss. 2010) (Kitchens, J., dissenting), I respectfully disagree with the majority’s holding
that the statute of limitations begins to run upon the discovery of the injury rather than upon
one’s discovery that he or she has a cause of action. However, even if I were to accept that
the statute of limitations begins to run on the date of the injury, I still would disagree with
today’s holding. The jury unanimously found that McLemore could not have discovered his
injury until October of 2005. Because the majority substitutes its judgment for that of the
jury, and because I find no reversible error, I would affirm the judgment, and I respectfully
dissent.
¶34. This Court repeatedly has held that “the statute of limitations commences upon
discovery of an injury, and discovery is an issue of fact to be decided by a jury when there
is a genuine dispute.” Donald v. Amoco Prod. Co., 735 So. 2d 161, 167 (Miss. 1999). See
also, e.g., Weathers v. Metro. Life Ins. Co., 14 So. 3d 688, 692 (Miss. 2009) (quoting same);
Fletcher v. Lyles, 999 So. 2d 1271, 1277 (Miss. 2009) (quoting same). Only if “reasonable
minds could not differ as to the conclusion” may the question be decided by the courts.
Stringer v. Trapp, 30 So. 3d 339, 342 (Miss. 2010) (quoting Smith v. Sanders, 485 So. 2d
1051, 1052 (Miss. 1986)). In the present case, the jury was asked “[o]n what date do you
find by a preponderance of the evidence that the plaintiff discovered, or by reasonable
diligence should have discovered, his claimed neurological injury, manganism?” The jury
unanimously responded “10/05,” that is, October of 2005. Thus, based on the jury’s finding
of fact, the plaintiff had filed his action roughly one month after discovering his injury, well
within the three-year statute of limitations.
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¶35. Today’s opinion further limits this Court’s precedent by holding that one need not
know the nature of his or her injury, only that there is some type of injury. This holding is
contrary to prior cases in which we have held that discovery of an injury cannot begin until
one has been diagnosed. See Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704, 709 (Miss.
1990) (statute of limitations began to run on date of medical diagnosis); Schiro v. Am.
Tobacco Co., 611 So. 2d 962, 963-64 (Miss. 1992) (statute of limitations began to run when
plaintiff discovered cancer, even though she had a lengthy history of other, related health
problems). Indeed, even in Angle, 42 So. 3d at 7, despite the plaintiff’s fifteen-year history
of related health problems and other diagnoses, this Court held that the plaintiff’s “cause of
action accrued at the latest in 2001, the date she was last diagnosed with an injury or
disease.” (Emphasis added.)
¶36. In the present case, the jury was properly instructed on the discovery issue and found
that McLemore could not have discovered his injury until October 2005. Because this
question of fact was decided by the jury and that determination was not contrary to the
weight of the evidence, we should not set aside the jury’s decision, a decision which is
afforded “great deference.” Johnson v. St. Dominic-Jackson Mem’l Hosp., 967 So. 2d 20,
23 (Miss. 2007). As I find no reversible error, I would affirm the judgment.
GRAVES, P.J., JOINS THIS OPINION.
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