United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
For the reasons stated below, the Court grants in part and denies in part the Motions for Summary Judgment [178, 180] filed by Defendants 3M Company and Empire Abrasive Equipment Corporation. The Court denies the motion with respect to Plaintiff's claims for silicosis/pulmonary fibrosis, but the Court grants it with respect to Plaintiff's claims for chronic obstructive pulmonary disorder, emphysema, shortness of breath, wheezing, and any other injury or medical condition diagnosed before April 9, 2010.
This is a product liability/silicosis case. Plaintiff worked as a sandblaster for several years in the late seventies. He claims that he developed "lung disease and silica related conditions" because he used defective personal respiratory equipment manufactured by Defendants 3M Company and Empire Abrasive Equipment Corporation. Defendants filed Motions for Summary Judgment [178, 180], arguing that Plaintiff's claims are barred by the applicable statute of limitations.
II. STANDARD OF REVIEW
Rule 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). "An issue is material if its resolution could affect the outcome of the action." Sierra Club, Inc., 627 F.3d at 138. "An issue is genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra, 626 F.3d at 812.
The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding whether a genuine fact issue exists, "the court must view the facts and the inference to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
Defendants argue that Plaintiff's claims are barred by the applicable statute of limitations. The parties agree that Mississippi Code § 15-1-49 applies. The statute provides, in pertinent part:
(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such 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. The Mississippi Supreme Court has clarified subsection (2), holding that "the plain language of the statute" provides that a cause of action accrues "upon discovery of the injury, not discovery of the injury and its cause. " Angle v. Koppers, 42 So.3d 1, 5 (Miss. 2010). The question, therefore, is when Plaintiff "knew' or reasonably should have known' that [he] had suffered an injury." PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 51 (Miss. 2005). This "is an issue of fact to be decided by a jury when there is a genuine dispute." Phillips 66 Co. v. Lofton, 94 So.3d 1051, 1059 (Miss. 2012).
When assessing the party's evidence, the Court should consider a variety of factors. For example, the Mississippi Supreme Court has held that courts "must consider [the plaintiff's] actions...." Lowery, 909 So.2d at 51. "[S]eeking medical attention for side effects or symptoms" may confirm that a plaintiff knew he was injured. Id. However, a plaintiff's cause of action may not accrue until he receives a diagnosis, despite previously receiving treatment for symptoms. See Lofton, 94 So.3d at 1059. Neither "absolute certainty" nor "an expert opinion" are required to "vest the right to a cause of action under this state's products liability statute." Lowery, 909 So.2d at 52.
Plaintiff filed his Complaint [180-1] on April 9, 2013. He alleged that Defendants' products caused him to contract "lung disease and silica related conditions." In his discovery responses [195-1, 195-2, 195-3], he claimed to suffer "from shortness of breath, silicosis, and any condition... caused by his exposure to respirable silica." Therefore, if he knew or reasonably should ...