Boggs et al v. 3M Company
Filing
108
MEMORANDUM OPINION & ORDER: 1) 3M's motion for summary judgment 65 & American Optical's motion for summary judgment 68 are GRANTED. Summary Judgment is granted in favor of the dfts on all of the claims asserted in the complaint. 2) Bog gses' motion for leave to file third amended complaint 81 is DENIED. 3) all pending deadlines & hearing are CANCELLED. 4) Clerk shall STRIKE this case form the Court's active docket. 5) Court will issue a separate judgment contemporaneously with this Memorandum Opinion & Order. Signed by Judge Amul R. Thapar on 8/24/2012. (RKT) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
JIM BOGGS and LINDA BOGGS,
Plaintiffs,
v.
3M COMPANY and AMERICAN
OPTICAL CORPORATION,
Defendants.
3M COMPANY,
Third-Party Plaintiff,
v.
ELKHORN & JELLICO COAL
COMPANY, LLC, et al.,
Third-Party Defendants.
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Civil No. 11-57-ART
MEMORANDUM OPINION
& ORDER
*** *** *** ***
Jim and Linda Boggs sued 3M and American Optical believing that their defective
respirators caused Jim Boggs’s black lung disease. 3M and American Optical moved for
summary judgment arguing that the statute of limitations barred their claims. In response,
the Boggses moved to amend their complaint to specify that his injuries also include lung
cancer. Both his claims for black lung disease and for lung cancer, however, are outside of
Kentucky’s one-year statute of limitations. Consequently, 3M’s and American Optical’s
motions for summary judgment are granted, and the Boggses’ motion to amend their
complaint is denied.
BACKGROUND
From 1972 until April 1986, Jim Boggs worked as an underground coal miner. R. 652 at 2–3 (Dep. at 73–77), 8–9 (Dep. at 154, 157). He started at Elkhorn & Jellico, working in
the Track Side Mine. Id. at 2 (Dep. at 73). To protect against the inhalation of coal dust,
Elkhorn & Jellico provided Jim Boggs and his fellow coal miners with respirators. Id. at 5
(Dep. at 86–87). Each day before working inside the mine, the coal miners collected their
respirators—the 3M 8710—from a box labeled “3M” on the back of a pickup truck. Id.
(Dep. at 87). And they did not do so blindly: Jim Boggs and his colleagues read the
instructions on the side of the 3M box, which explained that the respirators were designed to
protect against coal-dust exposure. Id. at 5 (Dep. at 88), 6 (Dep. at 111); R. 68-2 at 8. Boggs
and his fellow miners also discussed the importance of wearing these respirators because
coal-dust exposure could cause black lung and other diseases. R.65-2 at 5–6 (Dep. at 88,
111); R. 65-6 at 1 (Dep. at 125).
For the first six years of his career, Boggs used the 3M 8710 respirator at Elkhorn &
Jellico as well as several other coal companies. R. 68-2 at 5 (Dep. at 7). From 1979 to 1986,
Boggs worked at the Blue Diamond Coal Company, where he started wearing a respirator by
a different company, American Optical.1 Id. at 5–6 (Dep. at 7–8); R. 80-1 at 2–3 (Dep. at 8–
9). Unfortunately, a lower-back injury forced him to leave the coal mining industry in April
1986 and eventually led to his occupational disability. R. 65-2 at 10 (Dep. at 192).
Boggs received even worse news five years later while under Dr. Breeding’s care for
1
The parties dispute whether this respirator is the American Optical R2090 or R2090N, but the correct
identification of this respirator is ultimately irrelevant to the rulings in this opinion.
2
his back. R. 65-6 at 2 (Dep. at 128). Probably because of Boggs’s breathing difficulties, Dr.
Breeding’s clinic advised him to file a claim for federal black lung benefits. Id. (Dep. at
127–28). He took that advice to heart on July 10, 1991, when he submitted a Black Lung
Benefits Act claim. R. 65-3. On September 10, 1991, the Department of Labor referred
Boggs to Dr. Sundarum, a pulmonologist, for a black lung examination. R. 65-4 at 1. After
conducting a chest x-ray, Dr. Sundarum diagnosed Boggs with “Coal Worker’s
pneumoconiosis” (black lung disease) caused by “prolonged exposure to coal dust for well
over 15 to 16 years.” Id. at 1–2. Ten days later, Boggs visited Dr. Breeding’s office and
asked him about Dr. Sundarum’s diagnosis. R. 65-5. According to Boggs’s medical record,
he was informed that “Dr. Sundarum diagnosed black lung” and that Boggs should consult
Dr. Breeding about his earlier chest x-ray. Id.
Fast-forward about two decades. On April 15, 2011, Jim Boggs and his wife, Linda,
sued 3M and American Optical in federal court. R. 1. He asserted product liability, breach
of warranty, and negligence claims against 3M and American Optical, alleging that their
defective respirators caused him to contract black lung disease. R. 1 at 6, 8, 11, 13, 14, 16.
Based on his black lung disease, his wife also asserted loss-of-consortium claims against
both defendants. Id. at 18. After 3M and American Optical moved for summary judgment
on the black lung and loss-of-consortium claims, R. 65; R. 68, the Boggses moved to amend
their complaint to add Jim Boggs’s lung cancer as an additional injury. R. 81.
DISCUSSION
I.
3M’s and American Optical’s Motions for Summary Judgment
The crux of 3M’s and American Optical’s motions for summary judgment is that Jim
Boggs brought his black lung claims after the one-year statute of limitations expired. Boggs
3
tries to overcome the statute of limitations with two arguments: (1) that the “discovery rule”
tolled the statute of limitations, and (2) that equitable estoppel prevents 3M from relying on a
statute-of-limitations defense because 3M actively concealed its respirator’s defects. Neither
of these arguments has merit. Consequently, Boggs’s black lung claims are untimely.
A. Discovery Rule
The discovery rule does not save Jim Boggs’s claims for black lung disease. Because
the Court is sitting in diversity, see R. 1 at 3 ¶ 8, Kentucky state law is the remote control,
determining which events start, pause, and stop the one-year statute of limitations, see Duffy
v. Ford Motor Co., 218 F.3d 623, 629 n.3 (6th Cir. 2000). Under Kentucky law, a plaintiff
must “commence” a personal injury action within one year after the cause of action
“accrued.” Ky. Rev. Stat. § 413.140(1)(a). Normally, this one-year clock begins running
when the plaintiff is injured. Michals v. Baxter Healthcare Corp., 289 F.3d 402, 406 (6th
Cir. 2002) (citing Caudill v. Arnett, 481 S.W.2d 668, 669 (Ky. 1972)).
But starting the statute-of-limitations clock on the date of injury can be unnecessarily
harsh when the injury is one that “is not readily discoverable,” such as in cases involving
“latent illness or injury resulting from exposure to harmful substances.”
Vandertoll v.
Commonwealth, 110 S.W.3d 789, 796–97 (Ky. 2003) (citing Roman Catholic Diocese of
Covington v. Secter, 966 S.W.286, 288 (Ky. Ct. App. 1998)). To mitigate this harshness,
Kentucky’s “discovery rule” prevents the one-year clock from starting 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.” Wiseman v.
Alliant Hosps., Inc., 37 S.W.3d 709, 712 (Ky. 2000) (quoting Hazel v. Gen. Motors Corp.,
863 F. Supp. 435, 438 (W.D. Ky. 1994)).
4
In this case, the discovery rule does not save Boggs’s black lung claims. Boggs
brought these claims on April 15, 2011. R. 1. Thus, in order to be timely, his claims must
not have accrued any earlier than April 15, 2010.
The statute of limitations, however, began to run at the latest on September 20, 1991,
when he knew of his diagnosis and had sufficient facts to connect his disease to 3M’s and
American Optical’s respirators. The following facts irrefutably demonstrate that Boggs
knew about his disease: (1) on July 10, 1991, he filed a claim for black lung benefits under
the penalty of perjury, R. 65-3 at 1; (2) on September 10, 1991, Dr. Sundarum diagnosed
Boggs with black lung disease, and said it was caused by his “prolonged exposure to coal
dust for well over 15 to 16 years,” R. 65-4 at 1–2; and (3) on September 20, 1991, Boggs
visited Dr. Breeding’s office and specifically asked about Dr. Sundarum’s diagnosis, R. 65-5.
Consequently, Jim Boggs knew of his black lung disease by September 20, 1991, nearly 10
years before he filed this lawsuit.
In addition to knowing that he was injured, Boggs also had sufficient “critical facts”
in 1991 to put him on notice of the connection between the respirators and his black lung
disease. Vitalo v. Cabot Corp., 399 F.3d 536, 542 (3d Cir. 2005) (quoting Zeleznik v. United
States, 770 F.2d 20, 23 (3d Cir. 1985)) (explaining a similar discovery rule under
Pennsylvania law); see also United States v. Kubrick, 444 U.S. 111, 122, 126 (1979)
(Stevens, J., dissenting) (explaining a similar discovery rule under the Federal Employers’
Liability Act). In 1991, Boggs knew that:
He wore the respirators to protect him from inhaling coal dust. R. 65-2 at 5–6
(Dep. at 88, 111); R. 65-6 at 2 (Dep. at 125).
Black lung disease and other pulmonary illnesses could be caused by inhaling coal
dust. R. 65-6 (Dep. at 125–26); compare id. (Dep. at 126) (testifying that his
5
father had been diagnosed with black lung disease due to coal mining
employment), with Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 501 (4th Cir.
1989) (applying the discovery rule under the Federal Employers’ Liability Act and
holding that the plaintiff possessed enough information to start the running of the
statute of limitation in part because the plaintiff and his wife had several relatives
who had died of black lung disease).
He had been diagnosed with black lung disease due to his work in coal mines.
R. 65-4 at 1–2; see also R. 65-3 (indicating that he filed a federal claim under
penalty of perjury for black lung benefits from his former employers in the coalmining industry).
Once Dr. Sundarum diagnosed Boggs with black lung disease, the natural conclusion is that
the respirators may not have worked as intended. Even Boggs recognizes the force of this
logic. See R. 86-1 at 3 (Dep. at 125) (agreeing that if he were told that he had black lung
disease in 1991, then he would have concluded that defective respirators were a possible
cause).
Other courts have held that the statute-of-limitations clock starts when plaintiffs have
even fewer facts tying their disease to its cause. For example, in Townley v. Norfolk &
Western Railway Company, 887 F.2d at 499, the plaintiff developed severe respiratory
problems while working for a railroad from 1948 to 1979. During that time, he worked
around heavy amounts of coal dust and frequently coughed up coal dust. Id. Naturally, the
railroad worker visited his doctor, who diagnosed him with diabetes, heart disease, and
hypertension but not with black lung disease because the doctor lacked the expertise and
equipment to accurately do so.
Id.
By happenstance, however, he saw a newspaper
advertisement in 1980 that encouraged railroad workers to apply for federal black lung
benefits. Id. So he sent a letter to his former employer explaining that he retired due to
shortness of breath and requesting the information necessary to complete the claims form for
black lung benefits. Id. Eventually, a doctor diagnosed him with black lung disease in 1984.
6
Id. at 500. Applying a similar discovery rule under the Federal Employers’ Liability Act, the
Fourth Circuit held that the plaintiff’s claims accrued in 1980 when he admitted in his letter
that he “suspected that he suffered from black lung and that his condition was caused by his
work on the railroad.” Id. at 501.
Boggs had even more facts in his arsenal in 1991 than the railroad worker did in
Townley. Boggs not only suspected that he suffered from black lung. He actually filed a
federal black lung benefits claim due to “shortness of breath,” was referred to Dr. Sundarum
for a black lung examination, and followed up with Dr. Breeding to ask about his diagnosis.
These facts triggered Boggs’s duty to investigate the possible causes of his black lung
disease, including the allegedly defective respirators. Accord Debiec v. Cabot Corp., 352
F.3d 117, 139 (3d Cir. 2003) (holding, under Pennsylvania’s similar discovery rule, that a
plaintiff was put on notice of his claim for chronic beryllium disease when he received an
information packet identifying the disease’s symptoms, which were consistent with the
plaintiff’s symptom). Indeed, Boggs had no more information in 1991 about the cause of his
black lung disease than he did in 2010. The discovery rule simply does not toll the statute of
limitations when a plaintiff does not need to discover any more information to learn of his
injury and its possible cause.
Boggs tries to chip away at this conclusion. Relying on his own deposition testimony,
Boggs argues that a factual dispute exists about whether he was actually diagnosed with
black lung disease in 1991. See R. 70-1 at 14 (Dep. at 144) (testifying he did not “think” that
he was diagnosed with black lung before 2010). His federal black lung claim, black lung
examination with a pulmonologist, medical records, and discussions with several doctors
show, however, that no such factual dispute exists. To shield his claims from summary
7
judgment, Boggs must present competent evidence showing a factual dispute. At most,
though, Boggs’s deposition testimony indicates that he could not remember when he learned
of his diagnosis. See R. 86-1 at 3 (Dep. at 125).2 Such a memory lapse cannot defeat
summary judgment. See Leahy v. Trans Jones, Inc., 996 F.2d 136, 139 (6th Cir. 1993)
(holding that the plaintiff’s affidavit, which was supported only by “pure supposition” in a
witness’s deposition testimony, was insufficient to create a genuine issue of material fact);
Townley, 887 F.2d at 501 (“[A plaintiff] may not use the contradictions in his own testimony
to create an issue of fact for the jury.” (citing Barwick v. Celotex Corp., 736 F.2d 946, 960
(4th Cir. 1984))).
Boggs also argues that the discovery rule delayed the one-year clock while he waited
for someone to tell him about the connection between black lung disease and his respirator.
And that did not happen, he reasons, until his attorney, Zane Cagle, told him about the
alleged defects in the 3M and American Optical respirators. See R. 70 at 11–12.
This conversation with his attorney may be where Boggs hangs his hat, but his hat
rack has a faulty hook. Sure, Boggs may not have actually known about this causal link until
Mr. Cagle told him in 2010. But actual knowledge is only one-half of the discovery rule.
That rule delays the accrual of Boggs’s black lung claim until he had “actual or constructive
knowledge” of his injury and its cause. Michals, 289 F.3d at 406 (quoting Wiseman, 37
S.W.3d at 712) (emphasis added). Boggs had sufficient facts in September 1991 to put him
on notice that the respirators may have caused his black lung disease. See supra at 5–6.
2
When asked if anyone told him before 2010 that he had black lung disease, Boggs initially replied “no.” See
R. 70-1 at 144. Elsewhere, however, Boggs testified that he simply could not remember whether he was diagnosed
with black lung disease in 1991. R. 86-1 at 125 (“Q: You don’t have any recollection of anyone telling you had
black lung disease? A: No, huh-uh, I can’t remember.”).
8
Both the Sixth Circuit and the Kentucky Supreme Court have foreclosed Boggs’s
argument that the discovery rule delays a statute of limitations from starting until an attorney
tells him about the connection between his disease and the respirators. See Drake v. B.F.
Goodrich Co., 782 F.2d 638, 641 (6th Cir. 1986) (citing Conway v. Huff, 644 S.W.2d 333
(Ky. 1983)). If the rule were otherwise, a plaintiff could “plead a stale case merely because
he did not see ‘the right lawyer’ at the appropriate time” or “endlessly shop for a lawyer until
he found one willing to take his case.” Id. After all, what if Boggs had seen a lawyer less
knowledgeable about respirators than Mr. Cagle? Would his black lung claims continue to
be viable even today? Surely not. Boggs knew that the respirators were supposed to prevent
black lung disease, yet he got that disease anyway. All the more reason that a diligent
plaintiff in Boggs’s position would not need an attorney to tell him about his disease’s link to
the allegedly defective respirators.
Undeterred, Boggs points to 3M Co. v. Engle, 328 S.W.3d 184 (Ky. 2010), as
implicitly holding that the statute of limitations does not start until his attorney tells him
about the respirators’ defects. Yet Boggs misreads Engle. Much like here, Engle involved
coal miners who sued 3M and American Optical for black lung disease caused by an
allegedly defective respirator. Id. at 186. 3M and American Optical moved for summary
judgment, arguing that the statute of limitations barred the coal miners’ claims. Id. In
response, the coal miners claimed that they did not learn about the possible cause of their
black lung disease until their attorneys informed them. Id. The trial judge denied the
motions for summary judgment. Id. Afterward, 3M and American Optical tried to depose
the coal miners’ attorney to learn when he first told the coal miners about the cause of their
injuries. Id. at 187. Invoking their attorney-client privilege, the coal miners moved for a
9
protective order to prevent the deposition, but the trial court denied that motion and ordered
the deposition. Id. Dissatisfied, the coal miners climbed the appellate ladder, petitioning for
a writ of prohibition to prevent the deposition from taking place.
Denying the writ, the Kentucky Supreme Court held that 3M and American Optical
were entitled to depose the coal miners’ attorney. Id. at 189. The coal miners had made the
conversation with their attorney relevant to the statute-of-limitations dispute, and therefore it
would be “manifestly unfair” to protect that same information from discovery by 3M and
American Optical. Id. What the Kentucky Supreme Court did not decide, however, was
whether the trial court correctly ruled that the statute-of-limitations dispute turned on when
the coal miners’ attorney informed them of the connection between the respirators and black
lung disease. The merits of the trial court’s denial of summary judgment were simply not
before the Kentucky Supreme Court, nor could they have been, see Hazard Coal Corp. v.
Knight, 325 S.W.3d 290, 298 (Ky. 2010) (explaining the “general rule” that “a denial of a
motion for summary judgment” is “not appealable because of its interlocutory nature”
(quoting Transp. Cabinet, Bureau of Highways, Commonwealth of Ky. v. Leneave, 751
S.W.2d 36, 37 (Ky. Ct. App. 1988))). Engle was about nothing more than a discovery
dispute and is therefore irrelevant.
Boggs’s interpretation of Engle would radically change the landscape of Kentucky’s
discovery rule. The rule “applies only where the plaintiff has been reasonably diligent in
protecting his legal rights.” Hazel v. Gen. Motors Corp., 83 F.3d 422, at *3 (6th Cir. 1996)
(unpublished table decision) (quoting Burke v. Blair, 349 S.W.2d 836, 838 (Ky. 1961)).
Between 1991 and 2010, Boggs admits that he did not take any steps to investigate the
possibility that the respirators caused his black lung disease. See R. 65-6 at 2 (Dep. at 127).
10
Further, nothing prevented Boggs from contacting an attorney in 1991. Yet tolling the
statute of limitations from 1991 to 2010, as Boggs wishes, would permit a plaintiff to ignore
all evidence of the link between his latent injury and its cause until someone else explicitly
connects the dots for them. Such willful blindness is not consistent with the discovery rule’s
requirement of reasonable diligence. Fluke Corp. v. LeMaster, 306 S.W.3d 55, 67 (Ky.
2010) (“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.”). Therefore, under
the discovery rule, Boggs’s claims accrued no later than September 20, 1991.
B. Equitable Estoppel
Jim Boggs also contends that 3M is equitably estopped from relying on a statute-oflimitations defense. That argument does not fly. A defendant is equitably estopped from
relying on a statute-of-limitations 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., No. 10-5780, 2012 WL
833655, at *3 (6th Cir. Mar. 13, 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 statute of limitations, Boggs 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, 306 S.W.3d at 62–66.
11
Boggs claims that 3M actively concealed its respirator’s defects (the second
requirement). Even if a genuine dispute exists about whether 3M affirmatively concealed
defects in the final version of the respirator, Boggs has not satisfied the other two elements of
equitable estoppel. He does not explain how he “lacked the means” of finding out about the
respirator’s alleged defects from 1991 to 2010. After all, he has not produced any evidence
that he was unable to investigate the respirator’s defects, and he could have hired a
knowledgeable lawyer in 1991 just as readily as he did in 2010.
Nor does Boggs explain how 3M’s alleged concealment caused him not to investigate
the respirator as a source of his black lung disease from 1991 to 2010. Even if 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 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 Boggs and prevented him from “learning enough to assess whether” he should sue.
Id. at 65 (“Even 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 Boggs to stop his investigation
into the respirator’s 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, Boggs’s unexcused “failure to exercise reasonable diligence to discover [his]
12
cause of action and the identity of the tortfeasor[s] within the time prescribed by the statute
of limitations” dooms his black lung claims. Fluke Corp., 306 S.W.3d at 56. Boggs knew
that the respirator was supposed to protect him from black lung disease, yet he ended up with
that disease. It would have been only logical for Boggs to investigate the respirators, and
there is no evidence that 3M’s actions caused him to overlook them as a source of his
injuries.
*
*
*
Neither the discovery rule nor equitable estoppel delays the accrual of Boggs’s black
lung claims past 1991. The one-year statute of limitations on his black-lung claims began to
run on September 20, 1991. Because he waited until April 15, 2011, to file his lawsuit, his
black lung claims are too late. Summary judgment is therefore appropriate.
II.
The Boggses’ Motion to File a Third Amended Complaint
After 3M and American Optical moved for summary judgment, the Boggses moved
to file a third amended complaint. R. 81. This proposed amendment would add Jim Boggs’s
lung cancer as a separate injury caused by his use of the allegedly defective respirators. Id.
As 3M and American Optical rightfully point out, though, this amendment would be futile
because any claim for lung cancer is outside the one-year statute of limitations.
The
Boggses’ motion is therefore denied.
A. Timeliness of 3M’s and American Optical’s Responses to the Motion
Before ruling on the merits of the motion, the Court must first address a minor
procedural hurdle.
The Boggses argue that 3M and American Optical were late in
responding to his motion to file a third amended complaint, thereby waiving their objections.
R. 96 at 1–2. 3M’s and American Optical’s responses, however, were timely. The Boggses
13
moved for leave to file a third amended complaint on April 18, 2012. R. 81. Under Local
Civil Rule 7.1(c), the defendants’ responses were due “within twenty-one (21) days of
service of the motion.” 3M filed its response twenty-three days later on May 11, 2012,
R. 93, and American Optical filed its response twenty-six days later on May 14, 2012, R. 95.
At first blush, their responses appear to be late.
That logic, however, assumes that the Plaintiffs served 3M and American Optical
with the motion on the same day that they filed it. Owing to a quirk of the Federal Rules of
Civil Procedure, they did not. Federal Rule of Civil Procedure 6(d) grants an additional three
days for service accomplished by sending a document via “electronic means,” including the
“court’s transmission facilities” if the local rules allow it, see Fed. R. Civ. P 5(b)(2)(E),
(b)(3).
And Local Civil Rule 5.5 does allow this three-day extension for service through the
Court’s Electronic Case Filing (“ECF”) system. In fact, Joint General Order Number 11-02
requires it. To be sure, ECF “greatly speeds delivery” of documents because parties receive
e-mail
notices
of
all
new
filings.
Frequently
Asked
Questions,
PACER,
http://www.pacer.gov/psc/efaq.html # CMECF (follow “What are the benefits and features of
using CM/ECF?” hyperlink), (last visited May 21, 2012). Nevertheless, parties are entitled
to three extra days to act on documents that they receive instantly. See Fed. R. Civ. P.
5(b)(2)(E); E.D. Ky. Joint General Order No. 11-02 ¶ 12.3 (“[S]ervice by electronic means is
treated the same as service by mail for purposes of adding three (3) days to the prescribed
period to respond.”). Twenty-one days from the Plaintiffs’ motion was May 9, 2012, and an
additional three days extended the deadline for responses until May 12. Because that day
was a Saturday, the deadline was automatically extended until Monday, May 14, 2012. See
14
Fed. R. Civ. P. 6(a)(1)(C) (“[I]f the last day is a Saturday, Sunday, or legal holiday, the
period continues to run until the end of the next day that is not a Saturday, Sunday, or legal
holiday.”). Both 3M’s and American Optical’s responses were therefore timely.
B. Whether Leave to File Third Amended Complaint is Proper
The Boggses are not entitled to amend their complaint.
Federal Rule of Civil
Procedure 15(a) entitles a party to “amend its pleading once as a matter of course” before
being served with a responsive pleading and instructs courts to “freely give leave [to amend]
when justice so requires” in all other cases. But “that window of opportunity does not
remain open forever.” Shane v. Bunzl Distr. USA, Inc., 275 F. App’x 535, 536 (6th Cir.
2008). Once the scheduling order’s deadline to amend pleadings expires, the moving party
must show good cause for its tardiness and lack of prejudice to the defendants before a court
will even “consider whether amendment is proper under Rule 15(a).” Leary v. Daeschner,
349 F.3d 888, 906–07 (6th Cir. 2003) (quoting Sosa v. Airprint Sys., Inc., 133 F.3d 1417,
1419 (11th Cir. 1998)).
Here, the deadline for amending pleadings was November 15, 2011, R. 23 at 4, but
the Boggses waited until April 18, 2012, to move for leave to file their third amended
complaint, R. 81. Accordingly, the Boggses would normally have to show that “despite their
diligence they could not meet the original deadline” and that their late amendment will not
prejudice 3M and American Optical. Leary, 349 F.3d at 907. But the Court does not need to
decide the close question of whether their tardy amendment was motivated by good cause
and does not prejudice the Defendants. Even if they did meet this standard, the Court would
deny leave because their proposed amendment would not survive a motion to dismiss. See
Miller v. Calhoun Cnty., 408 F.3d 803, 817 (6th Cir. 2005) (citing Neighborhood Dev. Corp.
15
v. Advisory Council on Historic Pres., 632 F.2d 21, 23 (6th Cir. 1980)). Here, Jim Boggs’s
amended allegation of lung cancer is futile because it would be barred by the one-year statute
of limitations.
1. When did the one-year clock start? A statute of limitations begins running when
the claims accrue. See Ky. Rev. Stat. § 413.140(1). The parties agree that the one-year clock
on Boggs’s lung cancer claims began running when he was diagnosed with lung cancer in
June 2010. R. 104 at 1; R. 105 at 1–2; R. 106 at 1.
2. Did the Boggses commence an action for lung cancer by June 2011? To bring a
timely claim, the plaintiff must “commence” an action for that claim within the statute of
limitations. See Ky. Rev. Stat. § 413.140(1). The Boggses offers two reasons why the lung
cancer allegations are timely. The Boggses contend that their original complaint, which they
filed in April 2011, encompassed claims for lung cancer; therefore, the proposed amendment
is a timely clarification of the original complaint. And, they continue, even if the original
complaint did not encompass lung cancer, then the proposed amendment is still timely
because it will relate back to the date of the original complaint.
Both arguments are
incorrect.
The original complaint does not sufficiently allege claims for lung cancer. First, a
primer on the rules of reading complaints: “Although a federal court sitting in diversity
applies the substantive law of the forum state, the federal court ordinarily applies its own
rules of procedure to adjudicate the dispute.” Ventas, Inc. v. HCP, Inc., 647 F.3d 291, 313
n.11 (6th Cir. 2011). Federal procedural law requires the complaint to “contain sufficient
factual matter, accepted as true, to state a claim for relief that is plausible on its face.”
Republic Bank & Trust Co. v. Bear Sterns & Co, Inc., 683 F.3d 239, 247 (6th Cir. 2012)
16
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Kentucky substantive law, in turn,
defines what a “claim for relief” is. The parties do not dispute that Kentucky law treats
distinct latent diseases to the same organ, such as black lung disease and lung cancer, as
separate claims for relief with independent statute-of-limitation clocks, even when they arise
out of the same toxic exposure. R. 70 at 15–16; R. 104 at 6; R. 105 at 5–6; see Carroll v.
Owens-Corning Fiberglas Corp., 37 S.W.3d 699, 703 (Ky. 2000); Combs v. Albert Kahn &
Assocs., Inc., 183 S.W.3d 190, 195–96 (Ky. Ct. App. 2006).
Taken together, then, federal procedural law and Kentucky substantive law required
the Boggses’ original complaint to plead sufficient facts to support a claim based on Jim
Boggs’s lung cancer.
Yet the original complaint only alleges that he developed
“silicosis/pneumoconiosis,” or black lung disease; it contains no factual allegations related to
lung cancer. See R. 1 ¶ 20(c)–(f), (h)–(i). The Boggses make much of the fact that, in the
complaint, they sought damages for “silica related occupational lung disease.” This broad
phrase, they conclude, encompasses both black lung disease and lung cancer. See R. 106
(citing Compl., R. 1 ¶¶ 20(g), 39, 43, 50, 55, 61).
But it is not plausible that the label “silica related occupational lung disease” includes
lung cancer because there is no “factual content” from which the Court or the defendants can
“draw the reasonable inference” that 3M and American Optical are liable for lung cancer.
Ashcroft, 556 U.S. at 678. To draw this inference, the Court would have to add a factual
allegation to the complaint—that Boggs actually developed lung cancer, the same allegation
proposed by the third amended complaint. This the Court cannot do.
The Boggses point to Miller v. American Heavy Lift Shipping, 231 F.3d 242, 250 (6th
Cir. 2000), for the proposition that their complaint need not specify the “particular
17
pathologies of a given carcinogen.” R. 106 at 2–3. Miller is inapposite. There, various
seamen were exposed to asbestos and other hazardous substances, succumbing to colon
cancer and asbestosis. Miller, 231 F.3d at 244. The administrator of their estates filed a
wrongful death claim under federal maritime law for asbestosis resulting from exposure to
asbestos and “other hazardous substances.” Id. at 249–50. After the statute of limitations
expired, the administrator amended her petition to include claims for benzene-induced
leukemia. Id. at 246. Arguing that the amendment should not relate back to the original
complaint, the defendant asserted that the amended claims for benzene-induced leukemia
was “materially different” from the original asbestosis claim. Id. at 250. Rejecting that
argument, the Sixth Circuit concluded that relation back was appropriate because benzene
exposure claims “fit comfortably” within the original complaint’s allegations of “exposure to
other ‘hazardous substances.’” Id..
Similarly, the Boggses argues that lung cancer claims “fit comfortably” within the
original complaint’s use of the term “silica related occupational lung disease.” R. 106 at 4
(quoting Miller, 231 F.3d at 249). But this argument conflates federal procedural law with
state substantive law. In Miller, which involved claims under federal maritime law, federal
law governed both the procedural specificity with which claims must be plead and the
substantive definition of claims. There, the Sixth Circuit rejected the defendant’s argument
that federal substantive law treats benzene exposure and asbestos exposure as different
claims. See Miller, 231 F.3d at 250 (“The [defendant’s] arguments that injuries arising from
exposure to asbestos are materially different from injuries arising from exposure to benzene
. . . is unconvincing.”). Based on that conclusion about federal substantive law, the Sixth
Circuit concluded that federal procedural law permitted relation back because the amended
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claims for benzene-induced leukemia involved the same cause of action as that for asbestos
exposure. Id. at 249 (citing Tiller v. Atlantic Coast Line RR Co., 323 U.S. 574, 581 (1945)).
Unlike the federal substantive law in Miller, however, Kentucky substantive law
treats black lung disease and lung cancer as distinct injuries and thus separate causes of
action, each with its own statute of limitations, even when both result from the same
exposure. See supra at 17. As a result, federal procedural law required the Boggses’
complaint to allege facts specific to a lung cancer claim.
Accord Koon v. Lakeshore
Contractors, 128 F.R.D. 650, 653 (W.D. Mich. 1988), aff’d, 889 F.2d 1087 (6th Cir. 1989)
(per curiam) (holding that an amendment alleging negligence and unsafe working conditions
under federal law did not relate back because it involved different injuries that occurred in
different ways).
Consider the anomalies that the Boggses’ argument would create between federal and
state courts in the same forum in diversity cases. If the Boggses had brought this case in
Kentucky court, their lung cancer claims would be time-barred because their complaint did
not include any facts specific to a claim of lung cancer. But under their application of Miller,
those same lung cancer claims would not be untimely in federal court. There is “simply no
reason why” a state-law claim that “concededly would be barred in the state courts by the
state statute of limitations should proceed” in federal court “solely because of the fortuity
that there is diversity of citizenship between the litigants.” Walker v. Armco Steel Corp., 446
U.S. 740, 753 (1980). There is thus no way to interpret the Boggses’ original complaint as
including a claim for lung cancer.
Alternatively, the Boggses argue that their proposed amendment relates back to the
date of the original complaint and is therefore timely even if the original complaint does not
19
encompass lung cancer. R. 106 at 2. In some situations, the “relation back” doctrine treats
some subsequent amendments to pleadings as if they were filed on the date of the earlier
pleading. See Fed. R. Civ. P. 15(c). One such situation is when the amended claim arises
“out of the same conduct, transaction, or occurrence as that set forth in the original
complaint.” Miller, 231 F.3d at 248 (citing Fed. R. Civ. P. 15(c)(2)). The Boggses argue
that the proposed amendment adding lung cancer relates back to the original complaint’s
black lung claims because both arose out the same occurrence—exposure to coal dust due to
defective respirators. R. 106 at 3–4.
The Boggses’ argument skips an important step. As they agree, see Mots Hr’g Tr.,
R. 100 at 38, a later amendment cannot relate back to an untimely complaint under Federal
Rule of Civil Procedure 15(c)(2), see Williams v. Lampe, 399 F.3d 867, 870 (7th Cir. 2005)
(citing Henderson v. Bolanda, 253 F.3d 928, 931–32 (7th Cir. 2001)).
Otherwise, an
untimely original complaint could “act as a lifeline” for later untimely claims, id., permitting
a “complaint that was dead on arrival” to “breathe life into another [untimely] complaint.”
Papenthien v. Papenthien, 16 F. Supp. 2d 1235, 1241 (S.D. Cal. 1998). A contrary rule
would allow a plaintiff to effectively extend the statute of limitations by first filing a
placeholder complaint of time-barred claims. Because the Boggses’ original complaint only
contained black lung claims barred by the one-year statute of limitations, the original
complaint is untimely. Consequently, Federal Rule of Civil Procedure 15(c)(2) does not
allow the proposed amendment to relate back to the original complaint.
That does not end the relation-back question, though, because Rule 15(c) also permits
relation back if it is allowed by the law providing the “applicable statute of limitations”—
here, Kentucky. Fed. R. Civ. P. 15(c)(1). In other words, if state law “affords a more
20
forgiving principle of relation back than [Federal Rule of Civil Procedure 15(c)], it should be
available to save the claim.” Id., Commentary to the 1991 Amendment. The Plaintiffs offer
no reason, however, why the functionally identical Kentucky Rule of Civil Procedure 15.03
would permit an amendment to relate back to an untimely complaint. Cf. Phelps v. Wehr
Constr., Inc., 168 S.W.3d 395, 398 n.6 (Ky. Ct. App. 2004) (describing Federal Rule of Civil
Procedure 15(c) as “substantially the same as” Kentucky Rule of Civil Procedure 15.03).
The Court can think of none.
Without relation back, the lung cancer allegations in the proposed amendment must
be treated as if they were filed when the Boggses moved for leave to file the amendment on
April 18, 2012, see R. 81. The one-year statute of limitations on his lung cancer claims
began in June 2010, meaning that he had to bring these claims no later than June 2011. He
did not. His lung cancer claims are therefore untimely, amendment would be futile, and the
motion for leave must be denied.
III.
Linda Boggs’s Loss-of-Consortium Claims
Jim Boggs’s wife, Linda, has also sued 3M and American Optical for loss of
consortium due to her husband’s black lung disease.
Under Kentucky law, loss of
consortium is a separate cause of action, but it is “derivative” of the underlying tort claim.
Norton v. Canadian Am. Tank Lines, No. 06-411-C, 2009 WL 931137 (W.D. Ky. Apr. 3,
2009) (quoting Godbey v. Univ. Hosp. of Albert B. Chandler Med. Ctr., 975 S.W.2d 104, 106
(Ky. Ct. App. 1998)); Floyd v. Gray, 657 S.W.2d 936, 941 (Ky. 1983); accord Monak v.
Ford Motor Co., 95 F. App’x 758, 768 (6th Cir. 2004) (holding, under Ohio law, that loss of
consortium is a “derivative action that does not exist absent a primary claim”). Because the
Court has granted summary judgment on Jim Boggs’s claims, there are no primary claims
21
left to support his wife’s loss-of-consortium claims. His wife’s claims thus fail. See, e.g.,
Eilerman v. Cargill, Inc., 195 F. App’x 314, 319–20 (6th Cir. 2006) (applying this reasoning
to claims under Ohio law).
CONCLUSION
Accordingly, it is ORDERED that:
(1)
3M’s motion for summary judgment, R. 65, and American Optical’s motion
for summary judgment, R. 68, are GRANTED. Summary judgment is granted
in favor of the defendants on all of the claims asserted in the complaint.
(2)
The Boggses’ motion for leave to file a third amended complaint, R. 81, is
DENIED.
(3)
All pending deadlines and hearing are CANCELLED.
(4)
The Clerk shall STRIKE this case from the Court’s active docket.
(5)
The Court will issue a separate Judgment contemporaneously with this
Memorandum Opinion and Order.
This the 24th day of August, 2012.
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