Milby v. Gates Rubber Company

Filing 29

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 5/2/2017; re 26 MOTION for Summary Judgment filed by Gates Rubber Company; Separate order and judgment will enter. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:16-CV-104-TBR
DALE MILBY,

PLAINTIFF

v.
GATES RUBBER COMPANY,

DEFENDANT
MEMORANDUM OPINION

This matter is before the Court on Defendant Gates Rubber Company’s Motion for
Summary Judgment. [DN 26.] After the time for Plaintiff Dale Milby to respond passed, the
Court held a telephonic conference with the parties and gave Milby additional time to respond to
Defendant’s motion. [DN 28.] Almost four months later, Milby has still not responded, and
therefore this matter is now ripe for adjudication. For the following reasons, Defendant’s motion
for summary judgment, [DN 26], is GRANTED. The Court will enter a separate Order and
Judgment consistent with this Memorandum Opinion.
BACKGROUND
This matter arises out of Dale Milby’s employment with Gates Rubber Company (“Gates
Rubber”) from 1975 to 1999. Milby alleges that during his employment with Gates Rubber, he
was exposed to toxic chemicals, was not provided with adequate protective gear, and, as a result,
suffered and continues to suffer from multiple illnesses. [DN 1 (Notice of Removal); DN 1-2
(State Court Complaint).] Milby brought the instant action in Kentucky state court on January
27, 2016, seeking damages for the alleged “personal injuries and damages caused by the
negligence and/or fault of Gates Rubber Company.” [DN 1-2 at 2.] Gates Rubber removed the
case to federal court on February 18, 2016. [DN 1.] Milby seeks damages in the amount of
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$70,000,000 for pain and suffering, $25,000,000 for gross negligence, and $80,000,000 for
Milby’s pending death resulting from Gates Rubber’s actions. [DN 1-2 at 4.]
In a motion for reconsideration Milby filed with the Court in October 2016,1 Milby stated
that the symptoms of his illnesses, amyloidosis and paraproteinemia, were diagnosed in August
2012. [DN 23 at 2 (Milby’s Motion for Reconsideration).] Milby alleged in his motion, therefore,
that the statute of limitations on his claims did not begin to run until August 6, 2012. [Id.] Milby
also attached to this motion an affidavit from his wife, Kathryn Milby, who stated therein that
Milby was diagnosed with his illnesses on August 6, 2012. [Id. at 5.] During discovery, Milby
further provided Gates Rubber with a letter from his treating physician, Dr. Ijaz Mahmood, dated
July 25, 2012 which states that Milby “has been under [Dr. Mahmood’s] care for amyloidosis
and paraproteinemia.” [DN 26-2.] Dr. Mahmood opined in the letter that Milby developed his
illnesses due to a history of heavy exposure to chemicals such as “[b]enzene, asbestos, and
acetone” and that Milby presented a “high risk of developing lung cancer and mesothelioma as a
result of his exposure to asbestos.” [Id.]
Gates Rubber brought the instant motion alleging that, because Milby readily
acknowledges that he was aware of his symptoms and illnesses by August 6, 2012 at the latest,
that his January 27, 2016 lawsuit was filed outside of the one-year limitations period applicable
to personal injury actions in Kentucky. [DN 26 (Gates Rubber’s Motion for Summary
Judgment).] As the Court noted above, Milby has made no arguments in opposition to this
contention, and the Court can conceive of none. Because the Court agrees that the statute of
limitations on Milby’s personal injury action expired prior to his filing suit, the Court will grant
Gates Rubber’s motion for summary judgment.

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As explained in the Court’s December 2, 2016 Order, this Court denied Milby’s motion for reconsideration
because there was no previous order for this Court to reconsider. [DN 27.]

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STANDARD
Summary judgment is appropriate when the record, viewed in the light most favorable to
the nonmoving party, reveals “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). A genuine dispute of
material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The
Court “may not make credibility determinations nor weigh the evidence when determining
whether an issue of fact remains for trial.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th
Cir. 2014) (citing Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers v. Schebil,
188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question is ‘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.’ ” Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir.
2012) (quoting Anderson, 477 U.S. at 251–52).
The moving party must shoulder the burden of showing the absence of a genuine dispute
of material fact as to at least one essential element of the nonmovant’s claim or defense. Fed. R.
Civ. P. 56(c); see also Laster, 746 F.3d at 726 (citing Celotex, 477 U.S. at 324). Assuming the
moving party satisfies its burden of production, the nonmovant “must—by deposition, answers to
interrogatories, affidavits, and admissions on file—show specific facts that reveal a genuine issue
for trial.” Laster, 746 F.3d at 726 (citing Celotex, 477 U.S. at 324). “[N]ot every issue of fact or
conflicting inference presents a genuine issue of material fact.” Street v. Bradford & Co., 886
F.2d 1472, 1477 (6th Cir. 1989). The test is “whether the party bearing the burden of proof has
presented a jury question as to each element in the case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th
Cir. 1996). Nor will mere speculation suffice to defeat a motion for summary judgment: “[t]he

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mere existence of a colorable factual dispute will not defeat a properly supported motion for
summary judgment. A genuine dispute between the parties on an issue of material fact must
exist to render summary judgment inappropriate.” Monette v. Elec. Data Sys. Corp., 90 F.3d
1173, 1177 (6th Cir. 1996).
DISCUSSION
KRS 413.140 specifies the actions that must be brought within one year of the cause of
action accruing. Among those listed actions are “action[s] for an injury to the person of the
plaintiff.” KRS 413.140(1)(a). Typically, this one-year time period “begins running when the
plaintiff is injured.” Boggs v. 3M Co., No. CIV. 11-57-ART, 2012 WL 3644967, at *2 (E.D. Ky.
Aug. 24, 2012), aff'd, 527 F. App’x 415 (6th Cir. 2013) (citing Michals v. Baxter Healthcare
Corp., 289 F.3d 402, 406 (6th Cir. 2002); Caudill v. Arnett, 481 S.W.2d 668, 669 (Ky. 1972)).
However, “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.’” Id. (quoting Vandertoll v.
Commonwealth, 110 S.W.3d 789, 796–97 (Ky. 2003)). Accordingly, Kentucky applies the
“discovery rule,” which provides that the one-year limitations period does not begin to run “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.’” Id.
(quoting Wiseman v. Alliant Hosps., Inc., 37 S.W.3d 709, 712 (Ky. 2000)).
Here, it is undisputed that Milby discovered his illnesses, and Dr. Mahmood’s opinion
that his illnesses were caused by Milby’s history of exposure to various chemicals, by August 6,
2012 at the very latest. [DN 26-2; DN 23 at 3.] In Milby’s previous motion for reconsideration,
he stated that he did not know of his illnesses “until his doctor, Dr. Mahmood, informed [him]

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that he had his disease and it was because of inhaling of benzene, asbestos, acetone, as well as a
host of other toxic chemicals. That was on August 6, 2012.” [DN 23 at 2 (emphasis removed).]
This express statement constitutes a judicial admission that Milby knew of his illness, and the
suspected causes thereof, by of August 6, 2012. See Pucci v. Nineteenth Dist. Court, 596 F.
App’x 460, 467 (6th Cir. 2015) (citing Barnes v. Owens–Corning Fiberglas Corp., 201 F.3d 815,
829 (6th Cir. 2000); Kay v. Minacs Group (USA), Inc., 580 F. App’x 327, 331 (6th Cir. 2014);
Lee v. Smith & Wesson Corp., 760 F.3d 523, 528 (6th Cir. 2014) (“‘Judicial admissions are
formal admissions,’ . . . which have been held to arise in the pleadings, stipulations, pretrial
orders, and arguments at trial.”)); Lee, 760 F.3d at 528 (quoting MacDonald v. General Motors
Corp., 110 F.3d 337, 339–40 (6th Cir. 1997) (“The purpose of the [judicial admission] doctrine
is to promote the expedition of trials by allowing parties to rely upon lawyers’ admissions. ‘In
order to qualify as judicial admissions, an attorney’s statements must be deliberate, clear and
unambiguous.’”)) Accordingly, accepting the August 6, 2012 date as the “discovery” date, Milby
needed to bring suit against Gates Rubber by August 6, 2013. See Boggs, 2012 WL 3644967, at
*2; KRS 413.140(1)(a). He did not do so; rather, he did not bring suit until January 27, 2016,
more than two years after this cut-off date. [DN 1-2 at 2.]
Though Milby did not respond to Gate Rubber’s motion for summary judgment, in his
prior motion for reconsideration, he appeared to argue that he “had 13 or more years to begin his
lawsuit if desired,” pursuant to KRS 342.316, a statute in Kentucky’s Worker’s Compensation
Act. [DN 23 at 2]. Though Milby is correct that KRS 342.316 does provide a statute of
limitations for certain claims related to occupational disease caused by asbestos or other
hazardous chemicals, that statute specifically applies to Worker’s Compensation claims. In his
complaint, Milby characterized his suit as an “action for personal injuries and damages caused

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by the negligence and/or fault of Gates Rubber Company.” [DN 1-2 at 2.] In other words, Milby
brought a standard tort suit and did not assert his claims under the Kentucky Worker’s
Compensation Act. Cf. Booker v. Gates Rubber Co., Inc., No. 3:16-CV-00097-GNS, 2016 WL
6603943, at *2 (W.D. Ky. Nov. 7, 2016) (Stivers, J.) (“While KRS 342.316 does provide a
statute of limitations for actions arising under the statute, KRS 342.316 governs claims brought
under the Kentucky Worker's Compensation Act. Because Plaintiff's claims were not asserted
under the Worker’s Compensation Act, KRS 342.316 does not apply.”); Bryan v. Gates Rubber
Co., No. 3:16CV-102-JHM, 2016 WL 6892089, at *2 (W.D. Ky. Nov. 21, 2016) (McKinley, J.)
(citing Brooker and holding that “Plaintiff's claims were not asserted under the Worker’s
Compensation Act; therefore, KRS § 342.316 does not apply.” Accordingly, Milby’s claims are
time-barred, and judgment as a matter of law in favor of Gates Rubber is proper.
CONCLUSION
For the reasons stated herein, Gates Rubber Company’s Motion for Summary Judgment,
[DN 26], is GRANTED. The Court will enter a separate Order and Judgment consistent with
this Memorandum Opinion.
IT IS SO ORDERED.
Date:

May 2, 2017

cc:

Counsel of Record

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