Robinson v. Mine Safety Appliances Company et al
ORDER denying without prejudice 369 Motion for Sanctions. The motions for summary judgment 303 , 309 , 313 are granted. Mine Safety Appliances Company, Pangborn Corporation, Precision Packaging Inc., E.D. Bullard Company, and Clemco Industries Inc. are entitled to Judgment as a matter of law. Signed by Judge D. P. Marshall Jr. on 7/28/2014. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
HERSHEL LEE ROBINSON
MINE SAFETY APPLIANCES CO.;
PANGBORN CORP.; PRECISION
PACKAGING INC.; E.D. BULLARD CO.;
and CLEMCO INDUSTRIES INC.
1. Hershel Robinson worked as a painter and blaster for more than forty
years. When Robinson filed this case in October 2012, two of his doctors had
known for more than five years that he had silicosis related to sandblasting,
as well as COPD. The fighting question is when Robinson knew, or with
reasonable diligence should have known, about his conditions and what
probably caused them. Martin v. Arthur, 339 Ark. 149, 158-59, 3 S.W.3d 684,
689-90 (1999); I. C. Corp. v. Hoover Treated Wood Products, Inc., 2011 Ark. App.
589, *4, 385 S.W.3d 880, 883 (2011). For his product-liability claims to be
timely, Robinson's discovery of his conditions and their likely causes must
have happened after October 2009-sometime in the three years before this
lawsuit. ARK. CODE ANN.§ 16-116-103.
2. Robinson doesn't remember when he was diagnosed, so he defers to
his medical records. NQ 303-2 at 2. Those records say that at a March 2007
appointment, Dr. Ridgeway, a pulmonary specialist, diagnosed Robinson
with silicosis and COPD. He also found that Robinson was at risk for lung
cancer. NQ 368-1 at 17. Here's what Dr. Ridgeway wrote in the impression
sections of his notes:" Mr. Robinson is a very pleasant gentleman with chronic
obstructive pulmonary disease and silicosis related to sandblasting." NQ 303-5
at 3. This diagnosis was based on a CT scan. NQ 303-3 at 3-4. As Dr.
Ridgeway confirmed, a doctor's impression is his or her diagnosis. NQ 368-1
at 13; see also Dillard's Inc. v. Johnson,2010 Ark. App. 138 at *5, 374 S.W.3d 92,
Dr. Ridgeway forwarded his notes to Robinson's treating
physician, Dr. Ragland, NQ 303-5 at 3. Dr. Ridgeway again referred to the
silicosis and COPD diagnoses in his notes about a 16 July 2007 follow-up
appointment: "Mr. Robinson returns today to follow up with his silicosis and
COPD." NQ 303-6.
There's some daylight between these medical records and Robinson's
recollection of the March 2007 appointment. He remembers Dr. Ridgeway
saying "that [he] had bronchitis and that was it." NQ 348-2 at 51. The records,
though, are silent about bronchitis. Some of Robinson's memories about other
doctors and past treatment are fuzzy too. NQ 348-2 at 50-51. Dr. Ridgeway
doesn't remember what was said either; the March 2007 appointment was a
long time ago, and he has many patients with similar problems. But Dr.
Ridgeway acknowledges that, at least on paper, he made the diagnoses, and
that his standard practice is to discuss his diagnoses with his patients. NQ 3681 at 17. Dr. Ridgeway made other recommendations too- he told Robinson
to use his OSHA-approved mask, use his inhaler, and stop smoking.
Robinson followed all these recommendations. NQ 303-6. After seeing Dr.
Ridgeway in July 2007, Robinson made return visits to him every six months,
and then more frequently. NQ 348-2 at 52.
In arguing for a trial, Robinson leans hard on part of an affidavit from
"Since Mr. Robinson did not have any findings on his
radiographs consistent with a malignancy it would not be uncommon for me
not to tell Mr. Robinson about his silicosis since this is an incurable disease."
NQ 348-4. Dr. Ridgeway explained his hedge in his 2 April2014 deposition:
he would have focused his conversations with Robinson on his treatable
condition (COPD), rather than his untreatable one (silicosis). NQ 368-1 at 12.
And because Dr. Ridgeway's memory is cloudy on the particulars, he cannot
rule out the possibility that he failed to discuss the silicosis diagnosis.
3. Considering the evidence in the light most favorable to Robinson,
and taking all reasonable inferences in his favor, Hallgren v. United States Dept.
of Energy, 331 F.3d 588, 589 (8th Cir. 2003), all Robinson's claims are time
barred. No juror could reasonably conclude that Robinson first found out
about his conditions after October 2009. The diagnoses were in his medical
records. Assume that neither Dr. Ragland nor Dr. Ridgeway mentioned the
silicosis and COPD diagnoses, or even Robinson's heightened cancer risk,
between early 2007 and late 2009-a broad assumption that Dr. Ridgeway
acknowledged on deposition was unlikely and probably unethical. NQ 368-1
Even so, with reasonable diligence, Robinson should have
discovered his conditions before October 2009.
No later than March 2007, Robinson knew many things: he knew about
the health dangers of silica sand, NQ 303-1 at 5; he knew about his decadeslong exposure to silica and of the need to protect himself against it; he knew
he had an abnormal mass in his lungs, NQ 303-3; and he knew he was seeing
a pulmonary specialist (Dr. Ridgeway) at least twice a year. Alongside his
doctors' awareness, all this adds up to a more than sufficient opportunity for
Robinson to discover what was wrong with him, and what had probably
caused his silicosis. Stewart v. Phillip Morris, Inc.,205 F.3d 1054,1056 (8th Cir.
2000)(per curiam). Dr. Ridgeway's affidavit is simply not enough to create a
genuine issue of material fact. At the minimum, Robinson's claim accrued
before October 2009 because he should have known before then about his
silicosis and its roots in his work. Because Robinson waited more than three
years after either learning about his blasting-related illnesses, or after he could
have discovered them with reasonable diligence, all his claims are untimely.
* * *
The belated revelation of Dr. Ridgeway's key records, and the tardy
disclosure of his hedging affidavit, are troubling. The related motion for
sanctions, NQ 369, is denied without prejudice, though, as moot. The motions
for summary judgment, NQ 303, 309, & 313, are granted.
Appliances Company, Pangborn Corporation, Precision Packaging Inc., E.D.
Bullard Company, and Clemco Industries Inc. are entitled to judgment as a
matter of law.
D.P. Marshall Jr.
United States District Judge
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