Nelson v. Nelson

No. 01-109

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 151

M. ELIZABETH NELSON,

Plaintiff/Appellant,

v.

ROBERT Y. NELSON,

Defendant/Respondent.

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer,
The Honorable Gary L. Day, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert E. LaFountain, Billings, Montana

For Respondent:

J. Dennis Corbin, Miles City, Montana; Brent R. Cromley, Billings,
Montana

Submitted on Briefs: July 12, 2001

Decided: July 2, 2002
Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 M. Elizabeth Nelson (Elizabeth), appeals from the order of the Sixteenth Judicial

District Court, Custer County, granting summary judgment in favor of Robert Y. Nelson

(Robert), on the grounds that Elizabeth's cause of action was barred by the three-year statute

of limitations.

¶2 The sole issue is whether the District Court erred in granting summary judgment to

Robert. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On May 14, 1998, Elizabeth filed a complaint, alleging she suffered injuries while

working on a ranch operated by Robert. At the time of her injuries, Elizabeth and Robert

were married, but the couple later divorced. As part of the ranch operation, Robert applied

pesticides and insecticides and also inoculated sheep against sore mouth disease. Elizabeth

assisted Robert with ranching activities on a regular basis from 1989 until their divorce

proceedings began in 1994. Elizabeth claimed that on several occasions from 1989 to 1994,

she was exposed to pesticides and insecticides (chemicals) as a result of Robert's improper

methods of application. Additionally, in July, 1989, while Elizabeth was holding a sheep in

preparation for inoculation, Robert’s assistant, Merle Nelson, accidentally injected

Elizabeth’s hand with bovine ecthyma vaccine, a vaccine containing the live virus for sore

mouth disease. Elizabeth became dizzy immediately after the injection and lapsed into

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unconsciousness. After regaining consciousness, Elizabeth continued assisting with

inoculating sheep throughout the rest of the day.

¶4 From 1989 through 1998, when Elizabeth filed the complaint in this matter, Elizabeth

received extensive medical evaluations and treatments for numerous physical ailments which

either surfaced or worsened subsequent to her exposure to the chemicals and the vaccine.

Elizabeth suffered from many medical problems including rheumatoid arthritis, sleep apnea,

Pickwithian syndrome, recurrent blistering on her feet and in her mouth, diabetes,

hypothyroidism, headaches, and severe upper respiratory problems.

¶5 Elizabeth’s physicians were uncertain of the possible cause and effect relationship

between her numerous physical ailments and her exposure to chemicals and the vaccine. One

of her physicians, L. Keith Scott, M.D. (Dr. Scott), noted in an August 11, 1995 letter that:

The cause of much of her problem is still in question. She was exposed to
multiple chemicals and has been seen by the toxicology unit at the University
of Colorado. They did find that she did have some over exposure to certain
chemicals but still have not addressed cause and effect relation.

¶6 Elizabeth sought medical treatment from Richard A. Nelson, M.D. (Dr. Nelson) on

March 6, 1996. Dr. Nelson contacted the Centers for Disease Control in order to obtain

information on human reactions to injection with bovine ecthyma vaccine, but no information

was available, as Elizabeth was the only known person to have ever been injected with the

vaccine. Regarding his belief as to a possible causal connection, Dr. Nelson stated in a letter

dated May 20, 1996, that:

[Elizabeth] has a significant list of physical disorders, not the least of which
are asthma, reactive airway disease, rheumatoid arthritis, toxic exposure to

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 nervous system associated with agricultural chemicals including herbicides,
pesticides, and being directly injected with the vaccine for sore mouth disease .
. . . This resulted in a systemic autoimmune reactivity associated with skin
and mucus membrane disorders.

¶7 Elizabeth filed her complaint against Robert on May 14, 1998, for damages incurred

as a result of her exposure to the pesticides and insecticides and the injection of the bovine

ecthyma vaccine. Robert moved for summary judgment, arguing that Elizabeth’s cause of

action was barred by the three-year statute of limitations for negligence. Robert argued that

Elizabeth knew of her injuries more than three years before this action was filed, as

evidenced by a Motion for Modification of Separation Agreement she filed in the parties'

marital action on May 10, 1995. In the motion, Elizabeth’s attorney represented that “[a]t the

time and entry of the decree, [Elizabeth] suffered from certain damages which were

undisclosed or unknown to her or to her physicians. She had undergone an extensive amount

of testing, evaluation and examination, but no determination of the cause of her problems

existed.” The motion also stated:

After entering into the Separation Agreement, the doctors now believe
that the cause of her problem may very well stem from certain poisons used on
the ranch . . . .

The injuries suffered as a result of improper use of these chemicals . . .

constitute a life threatening and life long problem . . . .

¶8 Following a hearing on October 25, 2000, the District Court entered an order and

memorandum granting Robert’s summary judgment motion. The court concluded that

Elizabeth’s claim accrued when she was accidentally injected with the bovine vaccine in July

4
of 1989, and that her complaint was therefore barred by the three-year statute of limitations.

Elizabeth appeals the District Court’s grant of summary judgment.

STANDARD OF REVIEW

¶9 We review appeals from summary judgment rulings de novo. Sleath v. West Mont

Home Health Services, 2000 MT 381, ¶ 19, 304 Mont. 1, ¶ 19, 16 P.3d 1042, ¶ 19 (citation

omitted). When we review a district court's grant of summary judgment, we apply the same

evaluation that the district court uses, based on Rule 56, M.R.Civ.P. Sleath, ¶ 19 (citation

omitted). We set forth our inquiry as follows:

The movant must demonstrate that no genuine issues of material fact exist.
Once this has been accomplished, the burden then shifts to the non-moving
party to prove, by more than mere denial and speculation, that a genuine issue
does exist. Having determined that genuine issues of fact do not exist, the
court must then determine whether the moving party is entitled to judgment as
a matter of law. We review the legal determinations made by a district court as
to whether the court erred.

Sleath, ¶ 19 (citing Oliver v. Stimson Lumber Co., 1999 MT 328, ¶ 21, 297 Mont. 336, ¶ 21,

993 P.2d 11, ¶ 21). We review a district court's interpretation of law to determine if it is

correct. Steinback v. Bankers Life and Cas. Co., 2000 MT 316, ¶ 11, 302 Mont. 483, ¶ 11, 15

P.3d 872, ¶ 11 (citation omitted).

DISCUSSION

¶10 Did the District Court err when it granted summary judgment to Robert?

¶11 In its memorandum and order granting summary judgment, the District Court

concluded Elizabeth was barred by the three-year statute of limitations under § 27-2-204(1),

MCA, because Elizabeth immediately suffered injuries following the injection, and thus

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"sustained obviously tortious injuries in July, 1989." The court distinguished Elizabeth's

claim from Hando v. PPG Industries, Inc. (1989), 236 Mont. 493, 771 P.2d 956, wherein we

held that the onset of the statute of limitations is determined by applying the discovery rule

and establishing when the injured person knew, or in the exercise of due diligence, should

have known of the facts constituting the cause of action. The District Court reasoned that

Elizabeth's injuries following the injection, unlike Hando's latent injuries which developed

over time, were "obvious" and "immediate," noting Elizabeth instantly suffered

unconsciousness after being injected with the vaccine. Accordingly, the court did not

consider the averments in Elizabeth's motion to modify the separation agreement.

¶12 Elizabeth argues the statute of limitations was tolled until the date her physical

ailments were causally connected to the chemicals and the vaccine injection; thus her claim

(filed in May, 1998) was filed within three years from the date Dr. Nelson first established

the causal connection (May, 1996). Elizabeth contends that although she lost consciousness

after the injection, the vaccine did not leave immediately noticeable effects, and that her

subsequent physical problems surfaced over the course of time, and were not causally linked

to the injection until 1996. Elizabeth contends the District Court erred in its interpretation of

Hando, arguing Hando is not distinguishable from her situation.

¶13 Robert agrees with the District Court and asserts that this case is not controlled by

Hando, arguing that Elizabeth's injury was obviously tortious, unlike Hando's latent disease

or injury. Robert also alleges Elizabeth knew of the causal connection between the injection

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and her physical ailments as early as May 10, 1995, as evidenced by her motion for

modification of the settlement agreement.

¶14 The statute of limitations in Montana in an action for negligence is three years.

Section 27-2-204(1), MCA. The period of limitation begins when the claim or cause of

action accrues and is not postponed because of lack of knowledge of the claim or cause of

action by the party to whom it has accrued. Section 27-2-102(2), MCA. However:

[t]he period of limitation does not begin on any claim or cause of action for an
injury to person or property until the facts constituting the claim have been
discovered or, in the exercise of due diligence, should have been discovered by
the injured party if:

(a) the facts constituting the claim are by their nature concealed or self-concealing.
....

Section 27-2-102(3), MCA. Addressing this so-called "discovery rule," we have held that

"when the facts constituting a claim or cause of action for personal injury are, by their nature,

concealed or self-concealing," the period of limitations does not begin to run "until the

injured party has discovered the facts constituting the claim or, with due diligence, should

have discovered those facts." Gomez v. State, 1999 MT 67, ¶ 10, 293 Mont. 531, ¶ 10, 975

P.2d 1258, ¶ 10 (citing § 27-2-102(3)(a), MCA; and Kaeding v. W.R. Grace & Co., 1998 MT

160, ¶ 17, 289 Mont. 343, ¶ 17, 961 P.2d 1256, ¶ 17).

¶15 We applied these principles in Hando, where the plaintiff was exposed to paint fumes

while working at a coal processing plant in 1981 and 1982, and in the years following her

exposure, suffered from many physical, mental, and emotional reactions. Hando, 236 Mont.

at 495-96, 771 P.2d at 958. When Hando was exposed to the paint in 1982, she briefly lost

7
consciousness, and her supervisor contacted the poison control center and arranged for her to

be examined. Hando, 236 Mont. at 495, 771 P.2d at 958. Between 1982 and 1984, none of

the numerous physicians who examined Hando would attribute her continuing ailments to her

exposure to the paint. Hando, 236 Mont. at 502, 771 P.2d at 962.

¶16 Hando began receiving worker's compensation benefits for her ailments in May of

1982. However, she did not commence a tort action until October, 1985, following her

receipt of a medical opinion in early 1984 that her problems were caused by her toxic

exposure to paint. Hando, 236 Mont. at 496, 771 P.2d at 958.

¶17 In recognizing that when an injury is self-concealing, the statute of limitations is tolled

until a plaintiff discovers her injury, or until she should have discovered her injury with the

use of due diligence, we found that although Hando was "very much aware" of her medical

problems and that she "suspected that her ongoing ailments stemmed from her exposure" to

paint, she did not know the cause of those injuries until May of 1984, when "the veracity of

her belief" was finally known. Hando, 236 Mont. at 501, 771 P.2d at 962. We noted that

although Hando diligently sought to establish the cause of her ailments, none of the

physicians who examined her prior to 1984 attributed her problems to her exposure to paint,

and thus held the statute of limitations on Hando's claim was tolled until a medical opinion

confirmed the causal connection between her symptoms and her injury ("three-year statute of

limitations did not begin to run until a medical opinion was rendered in April-May of 1984

linking her injuries to her exposure to the PPG paint") Hando, 236 Mont. at 502, 771 P.2d at

962.

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¶18 We conclude the District Court erred in distinguishing Elizabeth's situation from our

holding in Hando. In both Hando and here, the plaintiff lacked knowledge concerning the

ultimate causal link between the ailments suffered by her and the exposures each had

experienced (i.e., paint or chemicals and the vaccine). Both Hando and Elizabeth suspected

the cause of her injuries and diligently sought medical treatment and diagnosis, but neither

was certain of the causal relationships until later confirmed by a physician. Notably, both

plaintiffs suffered immediate effects from the exposure as evidenced by loss of

consciousness, but both plaintiffs also suffered other continuing effects that neither could

have predicted at the time of the exposure. Moreover, both plaintiffs asserted beliefs or

suspicions that her medical problems stemmed from exposure to paint/chemicals prior to

filing her respective cause of action: Hando signed a workers' compensation claim in May of

1982, stating her belief that her problems stemmed from exposure to paint; and Elizabeth

filed a motion to modify a marital settlement wherein she recited suspicions concerning

problems possibly caused by her exposure to pesticides. Therefore, we conclude this case is

on all fours with Hando, and disagree with the District Court's conclusions to the contrary.

¶19 Although in his dissent, Justice Rice agrees Hando applies to Elizabeth's factual

situation--albeit by a slightly different analysis--he goes on to argue Elizabeth's claim should

be dismissed under the doctrine of judicial estoppel. First, we note that Robert did not assert

the doctrine of judicial estoppel in either his Motion for Summary Judgment, or on appeal.

Recently, "we decline[d] to consider arguments based on the doctrine of judicial estoppel that

9
are raised for the first time on appeal." Wheelsmith Fabrication v. Dept. of Labor, 2000 MT

27, ¶ 15, 298 Mont. 187, ¶ 15, 993 P.2d 713, ¶ 15 (citation omitted).

¶20 Turning to the merits of Justice Rice's dissent, although it correctly notes the purpose

of judicial estoppel is to prevent the use of inconsistent assertions and to prevent parties from

playing fast and loose with the courts, it fails to apply the rationale underlying the doctrine to

the facts presented here. Judicial estoppel is a doctrine created by judges that:

seeks to prevent a litigant from asserting a position [that is] inconsistent,
conflicts with, or is contrary to one that she has previously asserted in the same
or in a previous proceeding; it is designed to prevent litigants and their counsel
from playing fast and loose with the courts and to protect the integrity of the
judicial process. Judicial estoppel doctrine is equitable and is intended to
protect the courts from being manipulated by chameleonic litigants who seek
to prevail, twice, on opposite theories. The purpose of the doctrine of judicial
estoppel is to reduce fraud in the legal process by forcing a modicum of
consistency on the repeating litigant.

28 Am. Jur. 2d Estoppel and Waiver § 74 (2000).

¶21 Contrary to assertions made by Justice Rice in his dissent, there are no such

“chameleonic” machinations here. Throughout her illnesses, Elizabeth diligently sought to

establish the link between her injection and exposures and her illness. She is not now

changing her theory of liability, nor is she trying to prevail on opposite theories. Rather, she

waited to bring her claim until she could prove the necessary nexus between the suspected

cause of her ailments and her ongoing medical conditions. There is simply no evidence that

Elizabeth is seeking to play fast and loose with the courts or trying to take advantage of

earlier proceedings.

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¶22 Finally, contrary to the argument in both dissents, judicial estoppel does not apply

here because Elizabeth's current position is not inconsistent with what she averred in May of

1995. The doctrine of judicial estoppel binds a party to her judicial declarations, and

precludes her from taking a position inconsistent with them in a subsequent action or

proceeding. Kauffman-Harmon v. Kauffman, 2001 MT 238, ¶ 15, 307 Mont. 45, ¶ 15, 36

P.3d 408, ¶ 15. There is simply no actual inconsistency between Elizabeth’s speculation on

the possible causes of her medical condition when seeking modification of her marital

settlement, and her current assertion, following Dr. Nelson’s diagnosis of May 20, 1996, that

there is a medically established causal relationship between the combination of the injection

with her exposure to chemicals, and her medical condition.

¶23 Moreover, we do not agree that Elizabeth's motion to modify the settlement agreement

definitively established her knowledge of the causal connection between her injuries and the

chemicals and injection. On August 11, 1995, nearly three months after the motion was filed,

there was still uncertainty as to the causal connections as evidenced by Dr. Scott's letter

which stated: "[The toxicology unit] did find that [Elizabeth] did have some over exposure to

certain chemicals but [they] still have not addressed cause and effect relation. We are

looking into these cause and effect relationships and more information should be

forthcoming." Moreover, the statements in Elizabeth's motion are speculative as to the cause

of her injuries: "doctors now believe that the cause of her problem may very well stem from

certain poisons used on the ranch . . ." (emphasis added).

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¶24 If the state of Elizabeth's knowledge, or her diligence in discovering the causal link

between the injection and chemicals and her ailments was disputed, this issue could not be

resolved on summary judgment. The rule in Montana, and in the majority of jurisdictions, is

that when there is conflicting evidence as to when a cause of action accrued, the question of

whether an action is barred by the statute of limitations is for the jury to decide. Hill v.

Squibb & Sons, E.R. (1979), 181 Mont. 199, 212, 592 P.2d 1383, 1390-91 (citation omitted).

See also, McCormick v. Brevig, 1999 MT 86, ¶¶ 102-103, 294 Mont. 144, ¶¶ 102-103, 980

P.2d 603, ¶¶ 102-103 (it is for the trier of fact to determine at what point plaintiff discovered

or should have discovered through due diligence any negligence by the accountant when the

existence of a trust was self-concealing); and Werre v. David (1996), 275 Mont. 376, 384,

913 P.2d 625, 630 (the point at which plaintiff discovered a connection between the sexual

abuse she experienced as a child and her mental disorders as an adult was a question of fact

for the jury; thus, denial of defendant's motion for a directed verdict was correct).

¶25 However, Robert did not challenge Elizabeth's diligence in discovering the causal

connection, nor did he dispute the date of Dr. Nelson's conclusions concerning causation.

Instead, Robert asserted Elizabeth's injuries were distinguishable from those in Hando

because they were immediate and obviously tortious, and that Elizabeth's averments in her

motion indicated an earlier knowledge of the causal link than that established by Dr. Nelson

in May of 1996. Other than his interpretation of Elizabeth's motion, Robert asserted no

independent facts, such as physicians' opinions or medical evaluations, that imputed

knowledge of the causal link to Elizabeth prior to May of 1996. We have concluded that

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Elizabeth's averments in her motion to modify did not establish she knew of a causal

connection between her injuries and the chemicals and injection at that time. Thus, there

appears to be no factual dispute as to the timing of Elizabeth's knowledge of the causal

connections, such as would require remand for further factual determination.

¶26 Therefore, it appears there is no genuine issue of material fact as to whether Elizabeth

discovered, or in the exercise of due diligence should have discovered, the causal relationship

between her ailments and the combination of the chemicals and the vaccine, more than three

years before she filed suit. Therefore we conclude as a matter of law that Elizabeth's

complaint was timely filed.

¶27 Accordingly, the District Court's order granting summary judgment is reversed and

this case is remanded for trial on the merits.

/S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER

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Justice Jim Rice concurring in part and dissenting in part.

¶28 I concur that the District Court erred in determining that Hando is distinguishable

from Elizabeth’s case. However, for the reasons set forth below, I dissent from the ultimate

result reversing the District Court. I write separately on the former because Hando’s own

analysis is confusing and misleading, and because this Court’s majority opinion, rather than

clarifying Hando, serves forth the same confusion.

A. Tolling the Limiting Statute

¶29 This Court’s analysis in Hando is far from a model of clarity and, at best, is internally

inconsistent. Although not argued precisely in this manner, the fulcrum of Hando’s argument

for tolling the statute of limitations is that the facts surrounding the essential element of

causation were, by their very nature, self-concealing. Of course, at the time Hando filed her

complaint in 1985, Montana law did not provide that a limiting statute could be tolled if the

facts constituting a claim were self-concealing. Bennett v. Dow Chemical Co. (1986), 220

Mont. 117, 120-21, 713 P.2d 992, 994. Rather, Montana law provided that the limiting

statute could be tolled until a plaintiff discovers, or in the exercise of due diligence, should

have discovered the injury if the injury is self-concealing. Johnson v. St. Patrick’s Hosp.

(1966), 148 Mont. 125, 417 P.2d 469.

¶30 Although the Court in Hando cites to Johnson for its authoritative standard for tolling

the limiting statute, it does not apply Johnson or any other stated standard. Indeed, the Court

could not apply the standard set forth in Johnson and still salvage Hando’s claim. The

standard in Johnson provides only that a limiting statute can be tolled if the plaintiff

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sustained a self-concealing injury. Hando clearly did not sustain a self-concealing injury,

and the Court in Hando took pains to point this out. Although Montana law did not provide

for it at the time Hando filed her complaint, the limiting statute was tolled because the facts

constituting Hando’s claim were, themselves, self-concealing.

¶31 There is, of course, a difference between not knowing that one is injured (Johnson–

surgical gauze left in hip not discovered for seven years), and knowing full well that one is

seriously injured, but not knowing the cause of the injury (Hando–injury immediately

obvious and medical attention sought repeatedly for a period of years).

¶32 The Legislature specifically recognized this dichotomy when it enacted Senate Bill

160, codified as § 27-2-102(3)(a), MCA (1987). The statute as enacted, and in its current

form, provides:

The period of limitation does not begin on any claim or cause of action for an
injury to person or property until the facts constituting the claim have been
discovered or, in the exercise of due diligence, should have been discovered by
the injured party if the facts constituting the claim are by their nature
concealed or self-concealing. [Emphasis supplied.]

¶33 The original version of SB 160 reflected the law as provided in Johnson, stating that

the period of limitation does not begin on any claim or cause of action for an injury to a

person “until the injury has been discovered” providing that “the injury is by its nature

concealed or self-concealing.” Reflecting concern that the statute in its proposed form, read

in conjunction with current Montana case law, would preclude tolling a limiting statute if the

injury were known, but the facts constituting the claim were not, the Senate Judiciary

Committee amended SB 160 and the Legislature enacted the statute in its current form. The

15
Committee twice replaced the word “injury” and in its stead placed the phrase “facts

constituting the claim.”

¶34 With the Legislature’s enactment of the statute, not only can the statute of limitations

be tolled if an injury is self-concealing (Johnson), but so also can the limiting statute be

tolled if the facts constituting the claim are, by their very nature, self-concealing, as in Hando

or as with Elizabeth’s situation (injury immediately obvious, but with an unknown cause, and

medical attention sought repeatedly for a period of years).

¶35 Montana law, therefore, provides that the limiting statute can be tolled under two

separate standards for two different factual situations. There is no reason to confuse the two,

although this Court’s analysis in Hando and in the present opinion does precisely that.

Hando clearly applies to the present situation because, factually, it is nearly identical, and the

result, all other things being equal, should also be identical. But that does not mean that

Hando’s faulty analysis–citing the incorrect standard for tolling the limiting statute and then

applying an unstated standard–should be perpetuated in our case law.

¶36 The majority correctly cites to Gomez and to Kaeding, noting that current Montana

law provides that the limiting statute can be tolled “until the injured party has discovered the

facts constituting the claim, or with due diligence, should have discovered those facts,” if the

“facts constituting a claim or cause of action for personal injury are, by their nature,

concealed or self-concealing.” ¶ 14.

¶37 The majority notes that these principles were applied in Hando. This is true enough,

as the standards and principles actually stated in Hando were inapplicable and not applied to

16
that situation and are not applicable in the present situation. But the majority then continues

in ¶¶ 17 and 18, repeating Hando’s erroneous standard as though that standard satisfactorily

resolves the issue now before the Court for review:

In recognizing that when an injury is self-concealing, the statute of limitations
is tolled until a plaintiff discovers her injury, or until she should have
discovered her injury with the use of due diligence, we found that although
Hando was “very much aware” of her medical problems and that she
“suspected that her ongoing ailments stemmed from her exposure” to paint,
“she did not know the cause of those injuries until May of 1984,” when the
“veracity of her belief” was finally known.

. . . Both Hando and Elizabeth suspected the cause her [known] injuries

and diligently sought medical treatment and diagnosis, but neither was certain

of the causal relationships until later confirmed by a physician. [Emphasis

supplied.]

¶38 This analysis parallels the analysis in Hando: Statement of self-concealing injury

standard, acknowledgment that no self-concealing injury exists, and finally, tolling the

limiting statute, not because of a self-concealing injury, but because the essential facts

regarding causation are by their nature concealed or self-concealing.

¶39 Elizabeth and Hando sustained injuries that were obvious from their inception, even if

the eventual extent of their injuries and the causal relationship to their particular exposure

remained unknown. Clearly it is not necessary to know the total extent of damages that an

act causes to begin the running of the statute of limitations. “Few are the injuries that could

not someday develop additional consequences.” E.W. v. D.C.H (1988), 231 Mont. 481, 487,

754 P.2d 817, 821.

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¶40 Rather, both Hando and the instant case concern facts of a self-concealing nature

relating to the essential element of causation–the critical similarity between the two being

continuing medical treatment over numerous years, revealing insufficient facts for treating

physicians to diagnose a causal relationship. That their physicians, for numerous years, had

been unable to confirm a causal connection between their respective exposure and their non-

concealed injuries demonstrates the self-concealing nature of the facts regarding the essential

element of causation, and consequently, demonstrates the self-concealing nature of the facts

constituting their claims.

¶41 The correct standard to apply to the instant situation, therefore, is set forth in § 27-2-

102(3)(a), MCA, as reflected in Gomez and Kaeding–and upon that standard alone should the

limiting statute be tolled in the instant situation. Drawing parallels between Hando and

Elizabeth’s situations is instructive; applying the standard stated in Hando to the present

situation is both incorrect and confusing.

¶42 Therefore, while I agree with the majority that the District Court erred in

distinguishing Elizabeth’s present factual situation from Hando’s, I disagree with the

majority’s analysis in reaching that conclusion.

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 B. Judicial Estoppel

¶43 I dissent from the Court’s reversal of the District Court. Based upon the following, I

would affirm the decision of the District Court, although based upon different reasons than

those utilized by the District Court.
Comment [COMMENT1]:
Alternative sentence:
¶44 As noted by the majority, Robert also argues on appeal that Elizabeth had knowledge
Robert argues that the evidence
otherwise in the record demonstrates that
of the causal connection between her exposure and her injury as early as May 9, 1995, as Elizabeth, her attorney and her doctors
were aware of the causal connection
between Elizabeth’s exposure and her
evidenced by her motion for modification of the settlement agreement. As reflected in the injury more than three years prior to the
date Elizabeth filed a complaint. He
contends that Elizabeth’s cause of action
above discussion, I completely agree with the majority that knowledge of the causal accrued, at the latest, on May 9, 1995,
thereby causing the statute of limitations
on Elizabeth’s claim to run by May 9,
1998, five days prior to Elizabeth filing
connection cannot be imputed to Elizabeth via her May 9, 1995, motion, as the facts her complaint. Robert bases his argument
upon the language in the Motion for
Modification of Separation Agreement,
constituting her claim were, by their nature, self-concealing. That conclusion, however, does filed by Elizabeth’s attorney on May 9,
1995. Robert argues that the language in
this motion demonstrates that Elizabeth
not and should not end the discussion. and her attorney, as well as her doctors,
knew that exposure to the chemicals and
vaccine were the cause of her physical
¶45 This Court has held that the doctrine of judicial estoppel binds a party to his or her ailments, and therefore, pursuant to § 27-
2-102(2), MCA, Elizabeth’s cause of
action accrued no later than the date of
judicial declarations, and precludes a party from taking a position inconsistent with them in the motion.

subsequent actions or proceedings. In re Raymond W. George Trust, 1999 MT 223, ¶ 51,

296 Mont. 56, ¶ 51, 986 P.2d 427, ¶ 51; Fiedler v. Fiedler (1994), 266 Mont. 133, 139, 879

P.2d 675, 679. The doctrine, sometimes referred to as the doctrine of preclusion of

inconsistent positions, “binds a party to his or her judicial declarations, and precludes a party

from taking a position inconsistent with previously made declarations in a subsequent action

or proceeding.” Kauffman-Harmon v. Kauffman, 2001 MT 238, ¶15, 307 Mont. 45, ¶ 15, 36

P.3d 408, ¶ 15 (citation omitted). The doctrine not only prevents a party from changing its

position within the same proceeding, but also precludes a litigant from asserting “the

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existence of one state of facts in one action and, being unsuccessful in such action, assert[ing]

in a subsequent action a different state of facts wholly inconsistent with those asserted in the

first action . . . .” 31 C.J.S. Estoppel and Waiver § 141, p. 604 (1996); see also Davidson v.

State of Texas (1987), 737 S.W.2d 942, 948 (“[judicial estoppel] effectively estops a party

who has taken a position in an earlier proceeding from taking a contrary position at a

later time” (citation omitted)).

¶46 Elizabeth acknowledges that she moved to modify the Separation Agreement because

it did not contemplate her injuries sustained as a result of exposure to various chemicals

while working on the ranch operation with Robert. While admitting that this was the basis

for her motion, Elizabeth argues that the language of the motion itself did not unequivocally

state that a causal connection had been made, but rather, that the causal link was still

speculative. While this argument is compelling in relation to Montana’s discovery doctrine,

it is not compelling under the doctrine of judicial estoppel.

¶47 It is clear that Elizabeth’s motion relied upon the existence of such causal link for the

relief sought in her dissolution proceeding:

The injuries suffered as the result of improper use of these chemicals . . .
constitute a life threatening and life long problem. . . . Therefore, counsel
requests that the Court . . . set aside the Property Settlement Agreement in light
of this new evidence.

In requesting that the District Court refrain from entering any decree of dissolution

and to set aside the Property Settlement Agreement in light of “new evidence”–

consisting of Elizabeth’s doctors “now believing that her problem may very well stem

20
from certain poisons used on the ranch,” and that the “injuries suffered as the result of the

improper use of these chemicals constitute a life threatening and life long problem”–

Elizabeth’s actions compel the application of the doctrine of judicial estoppel.

¶48 This Court has previously used a four-part test when applying judicial estoppel,

requiring that: (1) The estopped party must have knowledge of the facts at the time the

original position is taken; (2) the party must have succeeded in maintaining the original

position; (3) the position presently taken must be actually inconsistent with the original

position; and (4) the original position must have misled the adverse party so that allowing the

estopped party to change its position would injuriously affect the adverse party. See Fiedler

v. Fiedler (1994), 266 Mont. 133, 879 P.2d 675 (concluding that the four elements were

present where the appellant succeeded in asserting one factual position in the district court

but adopted a contradictory factual position on appeal); also see Colwell v. Great Falls

(1945), 117 Mont. 126, 139, 157 P.2d 1013, 1019 (overruled on other grounds).

¶49 Although the four-part test may be helpful, it is not necessarily appropriate in every

circumstance where a party adopts inconsistent factual positions in judicial proceedings. In

Rowland v. Klies (1986), 223 Mont. 360, 726 P.2d 310, this Court did not use the four-part

test in preventing the appellant from asserting a contradictory factual position subsequent to

an adverse ruling of the district court. In holding the appellant judicially estopped, we stated

that “[t]he rule is well established that during the course of litigation a party is not permitted

to assume or occupy inconsistent and contradictory positions, and while this rule is

frequently referred to as ‘judicial estoppel,’ it more properly is a rule which estops a party to

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play fast-and-loose with the courts . . .” Rowland, 224 Mont. at 367, 726 P.2d at 315 (citing

31 C.J.S. Estoppel § 117B, pgs. 623-627 (1964)). The doctrine is an equitable concept and

“[t]here is no pat formula for applying judicial estoppel, and a flexible standard for judicial

estoppel permits consideration of all circumstances involved.” 31 C.J.S. Estoppel and

Waiver § 139, p. 595 (1996); see also Czajkowski v. Chicago (1993), 810 F.Supp. 1428, 1445

(“[j]udicial estoppel is a flexible standard not reducible to a pat formula”).

¶50 Notwithstanding the qualifying language in Elizabeth’s May 9, 1995, motion,

Elizabeth clearly relied upon the existence of a sufficient causal link within that motion, filed

within a previous judicial proceeding, in an attempt to obtain relief. Elizabeth should not

now be allowed to adopt an inconsistent position in an attempt to secure a favorable ruling

with regard to the statute of limitations. To do so constitutes an improper use of the judicial

process.

¶51 The purpose of judicial estoppel is to prevent the use of such inconsistent assertions,

thereby preventing the improper use of judicial machinery and protecting the integrity of the

judicial process. See Jackson v. County of Los Angeles (1997), 60 Cal.App.4th 171, 181

(citing Russell v. Rolfs (9th Cir. 1990), 893 F.2d 1033, 1037). Imposition of the doctrine

does not impute truth to a party’s original declaration, but merely prevents the

adoption of inconsistent positions where such an adoption would be an affront to

judicial dignity. Jackson, 60 Cal.App.4th at 181. Also see 31 C.J.S. Estoppel and Waiver

§ 2, p. 345 (1996).

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¶52 Likewise, imposition of the doctrine here would not impute truth to Elizabeth’s stance

in her May 1995 motion. In fact, the totality of the evidence prior to the 1996 diagnosis is

not conclusive of a causal connection between her exposure and her injury. But the

discovery doctrine is not at issue here. Rather, it is Elizabeth’s improper use of judicial

machinery. Aside from the fact that her May 1995 motion contained qualifying language,

Elizabeth attempted to receive a judicially obtained benefit by relying on the causal

connection between her injury and her exposure to the chemicals. Elizabeth’s later reliance

on the lack of a causal connection for the purpose of avoiding an adverse judicial ruling is a

misuse of the judicial process.

¶53 I would, therefore, hold that Elizabeth is judicially estopped from maintaining a

position inconsistent with that taken in her May 9, 1995, motion, and affirm the decision of

the District Court.

/S/ JIM RICE

Justice W. William Leaphart joins in the foregoing concurring and dissenting opinion of
Justice Rice.

/S/ W. WILLIAM LEAPHART

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Justice Terry N. Trieweiler dissenting.

¶54 I dissent from the majority Opinion.

¶55 I conclude, based on the undisputed facts, that Elizabeth had knowledge of the causal

connection between chemical and vaccine exposure and her injuries and illness more than

three years prior to the date on which her complaint was filed and that her complaint was,

therefore, barred by the applicable three year statute of limitation found at § 27-2-204(1),

MCA.

¶56 On May 9, 1995, in a document filed on Elizabeth's behalf in the District Court for the

Sixteenth Judicial District in Custer County, her attorney represented as follows:

1. At the time and entry of the decree, the Respondent suffered from
certain damages which were undisclosed or unknown to her or to her
physicians. She had undergone an extensive amount of testing, evaluation and
examination, but no determination of the cause of her problems existed.

2. After entering into the Separation Agreement, the doctors now
believe that the cause of her problem may very well stem from certain poisons
used on the ranch, which were used under the direction and supervision of her
husband, Robert Nelson.

3. The injuries suffered as a result of improper use of these chemicals
as directed by Robert Nelson, constitute a life threatening and life long
problem. That the terms of the Property Settlement Agreement did not take
into consideration this life long threatening medical problem suffered by the
Respondent which makes her unable to work. [Emphasis added.]

4. . . . Therefore, counsel requests that the Court not enter any decrees
of dissolution and set aside the Property Settlement Agreement in light of this
new evidence.

¶57 In Kaeding v. W. R. Grace & Co.–Conn., 1998 MT 160, ¶ 26, 289 Mont. 343, ¶ 26,

961 P.2d 1256, ¶ 26, we held that "knowledge of facts by an attorney is knowledge by the

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client, regardless of whether the attorney actually communicated the information to the

client."

¶58 If Elizabeth's attorney had sufficient knowledge on May 9, 1995, to allege in

documents filed with a District Court that Elizabeth suffered injuries as a result of improper

use of chemicals by Robert and that her injuries were life threatening and life long, he had

enough information to file a complaint in District Court making the same allegation. That

degree of knowledge is all that was necessary in order for the statute of limitation to begin

running. Absolute certainty is not required. Absolute certainty will never be established.

When this case goes to trial, there will still be differences of opinion about the cause of

Elizabeth's illness and injuries. However, Elizabeth presumably had a factual basis for the

assertions she made on May 9, 1995. Rule 11, M.R.Civ.P., requires that we make that

assumption.

¶59 The majority analogizes this case to Hando by stating that both claimants had a mere

"belief or suspicion" of a causal connection prior to receipt of actual medical documentation

and that the "belief or suspicion" was not sufficient to commence the period of time covered

by the statute of limitations. As a matter of law, I would conclude that if Elizabeth had

adequate knowledge to make the representations made in her motion to amend her Property

Settlement Agreement, she had adequate knowledge of the causal connection between

Robert's negligence and her injury or illness to file a complaint.

¶60 In ¶ 22 of the majority Opinion, the majority states in response to Justice Rice's

dissent that judicial estoppel does not apply here because Elizabeth's current position is not

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inconsistent with what she averred on May 9, 1995. I totally agree that what she alleges in

her complaint is not inconsistent with what she alleged in her motion to amend her Property

Settlement Agreement. However, that is not a reason to reject judicial estoppel. It is the

principal fact in support of judicial estoppel. What is inconsistent is Elizabeth's averment

made on May 9, 1995, and her allegation that she did not know about a causal connection

between Robert's negligence and her injuries or illness until sometime in 1996.

¶61 I would not apply judicial estoppel for other reasons. However, the majority's

observations in ¶ 22 of the majority Opinion completely support this dissent as well as the

application of judicial estoppel.

¶62 For these reasons, I would conclude that based on the undisputed facts, Elizabeth

knew of the causal connection between Robert's negligence and her injuries more than three

years prior to the time that she filed her complaint and that her complaint is, therefore, barred

by the applicable statute of limitations. For that reason, I would affirm the District Court's

order granting summary judgment to the Defendant.

/S/ TERRY N. TRIEWEILER

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