Roark v. 3M Company
OPINION AND ORDER: (1) Defendant's Motion for Summary Judgment (DE 19 ) is GRANTED; (2) Defendant's other pending motion (DE 23 ) is DENIED AS MOOT; (3) All pending deadlines and hearings are CANCELLED; (4) The Clerk of the Court shall STRIKE this case from the Court's active docket; and(5) A separate Judgment will issue. Signed by Judge Karen K. Caldwell on 11/18/2021.(MM)cc: COR
Case: 6:20-cv-00054-KKC-HAI Doc #: 32 Filed: 11/18/21 Page: 1 of 10 - Page ID#: 923
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LAWRENCE J. ROARK,
CIVIL ACTION NO. 6:20-54-KKC
OPINION AND ORDER
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This matter is before the Court on Defendant’s Motion for Summary Judgment. (DE
19.) Plaintiff having responded (DE 21) and Defendant having replied (DE 22), the matter is
now ripe for the Court’s review. For the reasons set forth herein, Defendant’s Motion (DE 19)
Lawrence Roark worked in coal mining from 1978 to 1994, when he was forced to
retire due to glaucoma. (DE 19-3 at 8, 28.) During that time period, he wore 3M 8710
respirators while working in the mines. (Id. at 8.) Roark says he would keep the respirators
on a “hundred percent” of the time when he was underground although he doubted that the
masks were as effective as advertised. (Id. at 13–14, 46, 55.)
In 1994, Roark was diagnosed with coal workers’ pneumoconiosis (also known as
“CWP” or “black lung”) by multiple doctors. (DE 19-7 at 9.) Shortly after his diagnosis, Roark
applied for retraining incentive benefits (RIB) with the Kentucky Department of Workers’
Claims due to his CWP. (DE 19-5.) Beginning in 1996, Roark repeatedly applied for federal
black lung benefits with the U.S. Department of Labor. (DE 19-9.) Despite Roark’s 1994
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CWP diagnosis and further confirmations by doctors of Roark’s CWP, including in 2001 (DE
19-3 at 69–70) and in January 2017 (DE 19-11), Roark’s federal benefits were still not secure
as of March 2021. (DE 21-5.)
Roark filed his complaint against 3M in December 2019, more than twenty-five years
after his first CWP diagnosis. (DE 1.) The complaint alleges that the 3M respirators Roark
wore were defective and that the respirators’ defects caused his CWP. (Id. at 14–18.) He
seeks damages, under several theories of liability, to compensate him for the various losses
he has suffered because of his injuries. (Id.)
The parties completed fact discovery on November 1, 2021, and the Court stayed
further discovery (DE 31) in order to resolve Defendant’s fully briefed motion for summary
judgment. (DEs 19, 21, 22.)
Fed. R. Civ. P. 56(a) directs the Court to “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.” A party seeking summary judgment bears the initial burden
of informing the Court of the basis for its motion with particularity. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The party opposing the motion must then make an affirmative
showing of a genuine dispute in order to defeat the motion. Alexander v. CareSource, 576
F.3d 551, 558 (6th Cir. 2009). To do so, the non-moving party must direct the Court’s attention
“to those specific portions of the record upon which it seeks to rely to create a genuine issue
of material fact.” In re Morris, 260 F.3d 654, 655 (6th Cir. 2001).
The Court will draw all reasonable inferences in favor of the non-moving party and
determine “whether the evidence presents a sufficient disagreement to require submission to
a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). If the Court determines that a rational
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fact finder could not find for the non-moving party based on the record as a whole, there is
no genuine issue for trial, and the Court should grant summary judgment. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Defendant’s motion turns on one question: are Roark’s claims time-barred? To answer
that question, the Court must determine whether the “discovery rule” tolled the statute of
limitations and whether equitable estoppel prevents 3M from relying on a statute-oflimitations defense, as Roark argues. (DE 21 at 6.) The Court will consider each issue in
A. Statute of Limitations & The Discovery Rule
Normally, a personal injury claim such as this one must be filed within one year of
the time when the cause of action “accrued.” Ky. Rev. Stat. § 413.140(1); see Combs v. Albert
Kahn & Assocs., Inc., 183 S.W.3d 190, 194 (Ky. Ct. App. 2006) (holding that plaintiffs injured
by asbestos exposure have one year to file their complaint after their claim accrues). However,
some causes of action are not “readily discoverable” within the default one-year period.
Vendertoll v. Commonwealth, 110 S.W.3d 789, 797 (Ky. 2003). Such cases tend to involve
latent illness or injury caused by exposure to harmful substances. See id. at 796–97. In these
cases, a one-year statute of limitations is unnecessarily harsh because the potential plaintiffs
have no way of discovering their cause of action within that year. To address that unfairness,
Kentucky courts apply the “discovery rule” as an exception to the normal statute of
limitations period. See id.
The discovery rule tolls the statute of limitations period “until the plaintiff discovers
or in the exercise of reasonable diligence should have discovered” that: (1) he was injured,
and (2) his injury “may have been caused by the defendant’s conduct.” Louisville Trust Co. v.
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Johns-Manville Prods. Corp., 580 S.W.2d 497, 501 (Ky. 1979) (emphasis added) (internal
quotation marks omitted).
First, “injury” is a term of art in Kentucky that is distinguishable from mere physical
harm. See Wiseman v. Alliant Hosps., Inc., 37 S.W.3d 709, 712 (Ky. 2000). For purposes of
the discovery rule, injury “is defined as ‘the invasion of any legally protected interest of
another.’” Id. (quoting The Restatement (Second) of Torts § 7, comment (1965)). That does
not mean, however, that the plaintiff must know that he has a legal cause of action. See
Conway v. Huff, 644 S.W.2d 333, 334 (Ky. 1982) (rejecting the argument that the statute of
limitations begins to run from the date plaintiffs discovered they had a cause of action). The
plaintiff must simply be aware that he has been wronged by another. See id.
Second, the discovery rule stops tolling the statute of limitations once the plaintiff
knows, either actually or constructively, that the defendant “may” have caused his injury—
definitive knowledge of causation is not required. See Johns-Manville Prods. Corp., 580
S.W.2d at 501. Constructive knowledge, through awareness of sufficient “critical facts” to put
the plaintiff on notice, will trigger the statute of limitations period. Boggs v. 3M Co., No. 11cv-57-ART, 2012 WL 3644967, at *3 (E.D. Ky. Aug. 24, 2012) (collecting cases), aff’d on other
grounds, 527 Fed. App’x 415 (6th Cir. 2013); see also Wiseman 37 S.W.3d at 712 (holding that
“actual or constructive knowledge . . . triggers the running of the statute of limitations”). So,
for purposes of the discovery rule, once the plaintiff encounters facts that “should excite his
suspicion[,]” he effectively has “actual knowledge of th[e] entire claim.” Fluke Corp. v.
LeMaster, 306 S.W.3d 55, 64 (Ky. 2010).1
While Fluke announced this rule in the equitable estoppel context, its reasoning clearly applies to the general issue
of when a plaintiff has constructive knowledge of a potential claim for statute of limitations purposes. See 306
S.W.3d at 61–67; Adams v. 3M Co., No. 12-61-ART, 2013 WL 3367134, at *3 n.3 (E.D. Ky. July 5, 2013).
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Third, once the plaintiff knows he has been injured, even if he does not have actual or
constructive knowledge of who caused his injury, he “has a duty to investigate and discover
the identity of the tortfeasor within the statutory time constraints.” Queensway Fin. Holdings
Ltd. v. Cotton & Allen, P.S.C., 237 S.W.3d 141, 151 (Ky. 2007) (quoting Combs, 237 S.W.3d
at 199). If he is not reasonably diligent in conducting such an investigation, the discovery
rule will not toll the statute of limitations. See Hazel v. Gen. Motors Corp., 83 F.3d 422, at *3
(6th Cir. 1996). In short, potential plaintiffs cannot simply wait for someone else to connect
the dots for them. See Fluke Corp., 306 S.W.3d at 67 (“Despite our sympathy for those injured
by products through no fault of their own, such injured parties have the duty to act diligently
to investigate apparent possible causes of their injuries in order to pursue claims within the
statute of limitations.”).
1. Roark’s Injury
Roark knew that he had suffered an “injury” in 1994 when he was diagnosed with
CWP by multiple doctors (DE 19-7 at 9) and then, being duly sworn, certified on his RIB
application that he had CWP. (DE 19-5.) Roark seems to argue that despite his CWP
diagnosis in 1994, the cause of action did not accrue until his symptoms got worse. (DE 21
at 4–5.) On this point, Roark consistently cites the discovery of an 11mm opacity in his lungs in
2020 as the injury he was not previously aware of. (Id.) Roark does not explain how the 2020
11mm opacity could be the injury at issue when Roark himself filed this lawsuit seeking damages
for his injuries in 2019. Roark was aware of his injury in 1994, when he was diagnosed with CWP.
Given that Roark knew he had suffered an injury by the end of 1994, the Court must
next determine: (1) whether Roark knew that 3M might have caused his injury, and, if not,
(2) whether Roark exercised reasonable diligence in investigating the identity of his
tortfeasor. See Hazel, 83 F.3d 422, at *3; Johns-Manville Prods. Corp., 580 S.W.2d at 501.
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2. Constructive Knowledge
The statute of limitations clock started for Roark in 1994 because he had “sufficient
critical facts” to put him on notice that there was a potential connection between his injuries
and the respirators he wore. Boggs, 2012 WL 3644967, at *3 (collecting cases); see also Fluke
Corp., 306 S.W.3d at 67 (holding that facts that should cause suspicion are the same as actual
knowledge); Wiseman, 37 S.W.3d at 712 (holding that “constructive knowledge . . . triggers
the running of the statute of limitations”). Roark describes his knowledge in 1994 as follows:
Q When a doc -- I guess when your doctor told you you had black lung in
1994 did you -- did you question him how you got black lung disease?
A I knew. No. I knew how I got it.
Q Did you tell them that you had worn a respirator?
Q And what did he say?
A Huh? He said well -- he asked me what did I wear and I told him. He said
– best I can remember, he said well, that’s why.
Q What do you mean?
A That’s why you got black lung, because the mask didn’t work. I’m telling
you honest to God’s truth. I mean.
(DE 19-3 at 75.) Roark describes a similar interaction with Dr. Byrd in 2001 where Roark
claims Dr. Byrd said of the respirators: “[T]hem won’t protect you.” (Id. at 75.) By his own
admission, Roark doubted the effectiveness of the masks (Id. at 14, 55), but wore them a
“hundred percent” of the time he was in the mines (Id. at 46). Roark’s own doubts, coupled
with Roark’s eventual CWP diagnosis despite his mask use and the statement from his
treating physician that he probably got CWP because the masks did not work, was
sufficient to trigger the statute of limitations period.
To have constructive knowledge, Roark just needed to be aware—as he was—of facts
indicating that the defendant “may” have caused his injury. Johns-Manville Prods. Corp.,
580 S.W.2d at 501.
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3. Reasonable Diligence
Even if Roark did not have constructive knowledge of his claim against 3M in 1994,
the fact that he knew he had suffered an injury meant he had a duty to investigate and
discover the identity of the tortfeasor within the statutory time constraints. See Fluke
Corp., 306 S.W.3d at 67; Queensway Fin. Holdings Ltd., 237 S.W.3d at 151. In cases like
this, if the plaintiff does not identify the tortfeasor before the statute of limitations expires,
the bar for relief is high. See Queensway Fin. Holdings Ltd., 237 S.W.3d at 151 (“[T]he
discovery rule does not operate to toll the statute of limitations to allow an injured plaintiff
to discover the identity of the wrongdoer unless there is fraudulent concealment or a
misrepresentation by the defendant of his role in causing the plaintiff’s injuries.” (internal
quotation marks omitted)).
Roark does not address the “reasonable diligence” prong because he rests his
argument on the idea that his injury did not occur until 2020 or 2021. (DE 21 at 6.) To
defeat summary judgment, the non-moving party must make an affirmative showing of a
genuine dispute, Alexander, 576 F.3d at 558, and direct the Court’s attention “to those
specific portions of the record upon which it seeks to rely to create a genuine issue of
material fact.” In re Morris, 260 F.3d at 655. Roark does not make any attempt to rebut
3M’s argument that he failed to act with reasonable diligence when he did not pursue a
claim despite his injury, his suspicions about 3M’s respirators, and the hundreds of other
similarly-situated miners’ lawsuits. Because Roark does not present any argument to the
contrary, the Court finds as a matter of law that Roark was not reasonably diligent.
In sum, Roark had sufficient “critical facts” to put him on notice that he had a
possible claim against the defendants for his injury in 1994. He also failed to exercise
reasonable diligence once he learned of his injury. Thus, the discovery rule cannot rescue
Roark’s untimely claim.
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B. Equitable Estoppel
Roark also contends that 3M is equitably estopped from relying on a statute-oflimitations defense. A defendant is equitably estopped from relying on a statute-oflimitations defense when he has taken “active steps to prevent the plaintiff from suing in
time, such as by hiding evidence or promising not to plead the statute of limitations.”
Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d 883, 891 (6th Cir. 2004); see also
Frontier Ins. Co. in Rehab. v. RLM Constr. Co., 468 Fed. App’x 506, 510 (6th Cir. 2012)
(holding that the doctrine applies when the defendant has “acted in a manner ‘calculated to
mislead or deceive and induce inaction by the injured party’” (quoting Adams v. Ison, 249
S.W.2d 791, 793 (Ky. 1952))). For equitable estoppel to toll the statutes of limitations, Roark
must show that (1) he “lacked the means of acquiring knowledge of the truth” that the
respirators he used were defective, (2) 3M acted in a way that concealed the defects of its
respirator, and (3) 3M’s actions prevented him from investigating the defective nature of the
respirator. Fluke Corp., 306 S.W.3d at 62–66.
Roark argues that 3M was intentionally deceptive and did not disclose potential
respirator defects to the public. However, Roark does not demonstrate that he “lacked the
means” to discover the respirator’s alleged defects or that 3M’s alleged concealment
“prevented him from investigating” the respirator’s potential defects prior to this lawsuit. In
fact, in support of his argument, Roark cites 3M documents from the 1970s. (DE 21 6–9.)
Presumably, such documents would have been discoverable had Roark engaged a lawyer in
Even if—as Roark argues—3M had a continuing duty to disclose the respirator’s
defects to the government and did not do so, its silence does not automatically toll the statute
of limitations. Fluke Corp., 306 S.W.3d at 63 (reversing the lower court, which held that a
manufacturer’s silence in the face of a statutory obligation to report product safety
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information allows a plaintiff to assume the product is safe, because that approach “negates
the plaintiff’s duty to exercise reasonable diligence to investigate apparent possible causes of
his injuries”). 3M’s silence must have been relied upon by Roark and prevented him from
“learning enough to assess whether” he should sue. Id. at 65 (“[E]ven if [the manufacturer]
had somehow concealed evidence of a defect . . ., the possibility of [the defect] (and cause of
action against the manufacturer) was evident from the facts of the [injury].”). This is not a
case in which 3M, for example, initially “promis[ed] not to plead the statute of limitations”
as a defense, causing Roark to stop his investigation into the respirators’ defects. E.E.O.C. v.
Ky. State Police Dep’t, 80 F.3d 1086, 1095 (6th Cir. 1996) (quoting Cada v. Baxter Healthcare
Corp., 920 F.2d 446, 450–51 (7th Cir. 1990)). Consequently, Roark’s unexcused “failure to
exercise reasonable diligence to discover [his] cause of action and the identity of his tortfeasor
within the time prescribed by the statute of limitations” dooms his CWP claims. Fluke Corp.,
306 S.W.3d at 56. Roark knew that the respirator was supposed to protect him from CWP,
yet he ended up with that disease. It would have been only logical for Roark to investigate
the respirators, and there is no evidence that 3M’s actions caused him to overlook them as a
source of his injures.
Neither the discovery rule nor equitable estoppel delays the accrual of Roark’s claims
past 1994. Because the one-year statute of limitations ran long before Roark filed his lawsuit
in December 2019, his claims are time-barred. Summary judgment is therefore appropriate.
Accordingly, for the reasons set forth herein, IT IS HEREBY ORDERED:
(1) Defendant’s Motion for Summary Judgment (DE 19) is GRANTED;
(2) Defendant’s other pending motion (DE 23) is DENIED AS MOOT;
(3) All pending deadlines and hearings are CANCELLED;
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(4) The Clerk of the Court shall STRIKE this case from the Court’s active docket; and
(5) A separate Judgment will issue.
This 18th day of November, 2021.
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