Kathy Gatza v. DCC Litigation Facility, Incor
Per Curiam OPINION filed : Accordingly, we VACATE the district court s grant of summary judgment for DCC and REMAND the case to the district court for the court to apply Wisconsin law with respect to the time-bar issue and conduct, decision not for publication. Richard F. Suhrheinrich, Circuit Judge; John M. Rogers, Circuit Judge and Richard Allen Griffin, Circuit Judge.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0488n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KATHY JEAN GATZA,
DCC LITIGATION FACILITY,
Jul 07, 2015
DEBORAH S. HUNT, Clerk
In re: DOW CORNING CORPORATION,
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
Before: SUHRHEINRICH, ROGERS, and GRIFFIN, Circuit Judges.
PER CURIAM. Kathy Jean Gatza, a Wisconsin citizen proceeding pro se, appeals the
district court’s grant of summary judgment in favor of DCC Litigation Facility, Inc. (DCC),
based on untimeliness.
Gatza received silicone breast implants in 1984 and had them removed in 1992. The
implant procedures took place in Wisconsin, where Gatza resides. Approximately two months
after receiving the silicone implants, Gatza began to experience swelling, stiffness, and pain in
her hands and feet, and she was diagnosed with rheumatoid arthritis in July 1984. According to
-2Gatza, she now suffers from atypical connective tissue disease, rheumatoid arthritis, and
fibromyalgia, all caused by the silicone implants.
In 1992, Gatza filed a claim in the multidistrict breast implant litigation in the Northern
District of Alabama.
She opted out of the class settlement as to Dow Corning, who
manufactured the raw silicone materials in her implants.
In 1995, Dow Corning filed for
bankruptcy in the Eastern District of Michigan, and Gatza filed a proof of claim in the
bankruptcy proceeding. After settlement negotiations with Gatza failed, DCC moved to certify
the case for trial. The district court certified the case, and Gatza filed a new complaint. DCC
later filed five summary judgment motions, one of which argued that Gatza’s claims were barred
by Michigan’s three-year statute of limitations for product liability actions or, alternatively, by
the limitations period that would apply under Wisconsin law.
The district court applied Michigan law and concluded that Gatza’s claims were timebarred, reasoning that the state’s limitations period does not include a discovery rule and that, as
a result, “Gatza’s claim accrued at the time of implant in 1984.” The district court further
concluded that Gatza’s claim would be untimely even if the discovery rule did apply because she
became ill a few months after receiving the implants and attributed her illness to the breast
implants. Accordingly, the district court granted DCC’s motion for summary judgment on that
basis and declined to address its other arguments.
We review de novo a district court’s decision to grant summary judgment. Lockett v.
Suardini, 526 F.3d 866, 872 (6th Cir. 2008). Summary judgment is proper “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).
-3In a recent decision involving another opt-out plaintiff, this court held that the district
court erred by applying Michigan law rather than the law of the plaintiff’s home state.
Sutherland v. DCC Litig. Facility, Inc. (In re Dow Corning Corp.), No. 13-1497, 2015 WL
716299, at *5 (6th Cir. Feb. 20, 2015) (holding that, when venue is transferred to a bankruptcy
proceeding under 28 U.S.C. § 157(b)(5), the transferee court must apply the choice-of-law rules
of the forum state to state-law tort claims). Sutherland does not control the outcome here
because Gatza did not file suit in her state of residence, and her case was not transferred from the
multidistrict litigation to the bankruptcy proceeding under § 157(b)(5).
But as in Sutherland, the district court erred by applying Michigan law to Gatza’s claim.
Both Michigan’s choice-of-law rules and “general equitable choice-of-law policies” favor
application of Wisconsin law in this case. See In re Miller, 513 F. App’x 566, 572 (6th Cir.
2013) (noting that the circuits are split on whether federal courts exercising bankruptcy
jurisdiction should apply federal choice-of-law rules or those of the forum state). Although
Michigan courts will presumptively apply Michigan law in tort actions, the presumption is
overcome when, as here, another “state has a significant interest and Michigan has only a
minimal interest in the matter.” Hall v. Gen. Motors Corp., 582 N.W.2d 866, 868 (Mich. Ct.
App. 1998); see Standard Fire Ins. Co. v. Ford Motor Co., 723 F.3d 690, 697-78 (6th Cir. 2013)
(holding that, where plaintiff’s insured was a Tennessee resident who was injured in Tennessee,
that state had a substantial interest in having its law applied). Application of federal choice-oflaw rules, which in this case are supplied by the Restatement (Second) of Conflicts of Law, leads
to the same result. See DaimlerChrysler Corp. Healthcare Benefits Plan v. Durden, 448 F.3d
918, 922 (6th Cir. 2006).
-4Wisconsin has a three-year statute of limitations for personal injury claims. Wis. Stat.
Ann. § 893.54. Wisconsin courts apply a discovery rule to determine when a claim accrues: the
statute of limitations does not begin to run “until the plaintiff discovers, or in the exercise of
reasonable diligence should have discovered, not only the fact of injury but also that the injury
was probably caused by the defendant’s conduct or product.”
Borello v. U.S. Oil Co.,
388 N.W.2d 140, 146 (Wis. 1986). For purposes of the discovery rule, “discovery does not
occur until there is information available to the claimant of the nature of her injury, the cause of
her injury, and the defendant’s part in that cause.” Id. at 147.
The district court, while appearing to state that Wisconsin law is consistent with
Michigan law, applied Michigan’s former discovery rule in the alternative. The application of
Wisconsin law is briefed to us only by defendants. Our review will be enhanced by district court
consideration of Wisconsin law in the first instance. Accordingly, we vacate the district court’s
grant of summary judgment for DCC and remand the case to the district court for the court to
apply Wisconsin law with respect to the time-bar issue and conduct.
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