Filipek et al v. The Boeing Company et al
ORDER granting 192 Motion for Summary Judgment; granting 194 Motion for Summary Judgment; granting 202 Motion for Summary Judgment; denying 217 Motion to Withdraw Admission ; granting 231 Motion for Joinder; granting 232 Motion for Joinder; granting 233 Motion for Joinder; granting 234 Motion for Joinder; denying 235 Motion for Leave to File Reply/Surreply(Written Opinion) Signed by Senior Judge David S. Doty on 9/21/2017. (DLO)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 16-1998(DSD/BRT)
Marlin P. Filipek and
The Boeing Company, et al.,
Eric Martin Przybysz, Esq. and Simon Greenstone Panatier
Bartlett, PC, 3232 McKinney Avenue, Suite 610, Dallas, TX
75204, counsel for plaintiffs.
David N. Lutz, Esq. and Bowman & Brooke LLP, 150 South 5th
Street, Suite 3000, Minneapolis, MN 55402, David E. Scouton,
Esq. and Foley & Mansfield, PLLP, 250 Marquette Avenue, Suite
1200, Minneapolis, MN 55401, Bradley R. Bultman, Esq. and
Larson King LLP, 30 East Seventh Street, Suite 2800, Saint
Paul, MN 55101, John C. Hughes, Esq. and Meagher & Geer, PLLP,
33 South 6th Street, Suite 4400, Minneapolis, MN 55402, counsel
This matter is before the court upon the motions for summary
judgment on statute of limitations grounds by defendants The Boeing
Corporation, McNeil Corporation, Northern States Power Company, and
United Technologies Corporation and the motion for withdrawal of
admissions by plaintiffs Marlin Filipek and Dorothy Filipek.1
After a review of the file, record, and proceedings herein, and for
The court grants various defendants’ motions to file a joint
memorandum in opposition to the motion to withdraw. ECF Nos. 23135.
the following reasons, the court denies plaintiffs’ motion and
grants defendants’ motions.
This products liability action arises out of Marlin Filipek’s
decades-long exposure to asbestos from materials and products
supplied, or distributed by defendants.
Compl. ¶¶ 1-7.
Filipek was diagnosed with mesothelioma in January 2016.
his wife commenced this suit on May 23, 2016, alleging that his
illness was caused by that asbestos exposure, and asserting claims
of negligence, strict liability, and breach of warranty.2
Defendants now move for summary judgment, arguing that the
claims are time-barred due to Mr. Filipek’s earlier diagnosis of
mesothelioma - in approximately 2006.4
According to defendants,
the asbestosis diagnosis started the clock on the limitations
period, which then expired no later than 2012.
Mr. Filipek died on March 9, 2017. Mrs. Filipek intends to
amend the complaint to include claims for wrongful death after
probate proceedings have concluded.
The parties do not dispute that asbestosis is a an asbestosrelated disease caused by extensive asbestos exposure.
The exact date of Mr. Filipek’s asbestosis diagnoses is
unknown because his pre-2012 medical records are unavailable.
Based on the record, however, it appears that he was likely
diagnosed with asbestosis in 2006.
Defendants rely on several notations in Mr. Filipek’s medical
asbestosis in 2006 and possibly earlier:
Records dated January 4 and July 6, 2016: Mr.
Filipek “has long standing asbestosis (seen on
CXR x 10 yrs) ... 1954 exposures to asbestos
in military, building[.]” Scouton Aff. Ex. 3,
at 1, 8.
Record dated April 4, 2012:
presents with a diagnosis of occupational
This was diagnosed years ago.”
Id. Ex. 5, at 1.
Record dated September 21, 2015: “Calcified
pleural plaques correlate with patient’s known
history of asbestosis.” Id. Ex. 7, at 1.
Record dated September 21, 2015: “Pleural
asbestosis.” Id. Ex. 13, at 1.
Record dated September 25, 2015: “Bilateral
thickening. Small areas of infiltrate fibrosis
left lung base.
Correlate clinically with
history of asbestosis prior infection.” Id.
Ex. 9, at 4.
Record dated April 2, 2016: “Persistent 20%
right pneumothorax small pleural effusions old
granulomatous disease and asbestosis.”
Ex.8, at 6.
Record dated April 25, 2016: Mr. Filipek is a
“79 yo male with long standing asbestosis now
with pleural mesothelioma ....” Id. Ex. 4, at
Plaintiffs respond that the notations in the above medical
records are insufficient to establish that Mr. Filipek had in fact
been previously diagnosed with asbestosis or, more important, that
he was aware of any such diagnosis.
In his July 2016 deposition,
Mr. Filipek did not recall being diagnosed with asbestosis “about
ten years ago,” although he did say that “it sound[ed] familiar.”
See Filipek Dep. Vol. IV at 635:3-17.
In addition to the medical
records, however, defendants also rely on Mr. Filipek’s later
discovery responses (dated March 6, 2017) in which he admitted that
he was diagnosed with asbestosis more than six years before
commencing this suit:
REQUEST FOR ADMISSION NO. 23:
Plaintiff Marlin Filipek was diagnosed with an
asbestos-related disease prior to May 19,
ANSWER: Plaintiffs incorporate by reference General
Subject to and without waiving
these objections, admit.
Plaintiffs reserve the
right to supplement and amend this response should
responsive information change.
Lutz Aff. Ex. 15, at 14.5
He likewise stated that he was diagnosed
with asbestosis in “roughly 2005” in his interrogatory responses.
Id. at 8.
Plaintiffs now argue that the court should allow them to
withdraw Mr. Filipek’s admission because it was made in error. The
court will address plaintiffs’ motion to withdraw before turning to
the summary judgment motions because it is likely dispositive.
Although it does not appear that Mr. Filipek signed the
responses, he was involved in crafting them and did so under oath.
See Lutz Aff. Ex. 15, at 1 (“Plaintiff Marlin P. Filipek, being
first duly sworn, upon oath, states the following in response to
Defendant The Boeing Company’s First Set of Interrogatories and
Requests for Admission ....”).
Motion to Withdraw Admissions
Rule 36(b) of the Federal Rules of Civil Procedure gives the
admission] if it would promote the presentation of the merits of
the action and if the court is not persuaded that it would
prejudice the requesting party in maintaining or defending the
action on the merits.”
Presentation on the Merits
“When a material fact is clearly contested, considering that
fact to be admitted precludes, rather than promotes, presentation
of the case on the merits.”
Edeh v. Equifax Info. Servs., LLC, 295
F.R.D. 219, 224 (D. Minn. 2013); see also FDIC v. Prusia, 18 F.3d
637, 641 (8th Cir. 1994) (“Permitting the amendment of responses to
a request for admissions is in the interests of justice if the
record demonstrates that the ‘admitted’ facts are contrary to the
actual facts.”); White Consol. Indus., Inc. v. Waterhouse, 158
F.R.D. 429, 433 (D. Minn. 1994) (“[T]he prospect of deeming
somewhat self-evidently, to be anathema to the ascertainment of the
Plaintiffs argue that withdrawing the admission will promote
the presentation of the case on the merits because the evidence in
the record contradicts the admission. The court disagrees. As set
forth above, Mr. Filipek’s medical records support a finding that
he was diagnosed with asbestosis in approximately 2006.
Plaintiffs argue that the medical records from 2006 do not confirm
plaintiffs have not provided those records to the court.
the court must review the plain language of more recent records,
asbestosis in approximately 2006.
Plaintiffs also argue that their expert witness, Dr. Edwin
Holstein, effectively casts doubt on Mr. Filipek’s asbestosis
diagnosis. See Przybysz Aff. Ex. 3, at 6-7 (“[H]is medical records
frequently contained the diagnosis of ‘longstanding asbestosis.’
However, although some chest x-ray interpretations would suggest
investigation directed to this possibility and find the limited
available evidence to be equivocal.”).
Even if timely,6 Dr.
Holstein’s report is insufficient to undermine the plain reading of
the medical records.
Further, the question presented is not
whether Mr. Filipek was correctly diagnosed with asbestosis, but
rather whether he was told he was diagnosed with asbestosis before
May 23, 2010.
See Tuttle v. Lorillard Tobacco Co., No. 99-1550,
The scheduling order required plaintiffs to submit expert
reports by April 17, 2017. ECF No. 170. Dr. Holstein’s report is
dated April 18, 2017.
2003 WL 1571584, at *5 (D. Minn. Mar. 3, 2003) (citing Klempka v.
G.D. Searle & Co., 963 F.2d 168, 170 (8th Cir. 1992)) (“The statute
of limitations begins to run when a plaintiff is aware of an injury
and the likely cause of that injury.”).
The records support a
finding that he was.
Mr. Filipek’s deposition testimony likewise fails to establish
that he was unaware of the diagnosis before 2010.
whether he recalled being diagnosed with asbestosis in 2006, Mr.
Filipek responded that although he did not remember, it sounded
Filipek Dep. Vol. IV at 635:3-8.
that he did not remember that “at all.”
He then testified
Id. at 635:11-17.
never denied that he was diagnosed with asbestosis in 2006,
A failure to recall is not equivalent to a denial.
EEOC v. Bob Evans Farms, LLC, No. 2:15-1237, 2017 WL 3531562, at *5
n.6 (W.D. Pa. Aug. 17, 2017) (“A failure to recall an event without
a denial that it happened coupled with affirmative evidence that
the event happened, is insufficient to create an issue of material
fact preventing summary judgment.”).
Indeed, the medical records support a finding that Mr. Filipek
did know about the 2006 diagnosis and that he is very likely the
person who gave that information to his doctors in later years.
Key medical records from January and July 2016, for example, state
that Mr. Filipek “has long standing asbestosis (seen on CXR x 10
yrs) ... 1954 exposures to asbestos in military, building[.]”
Scouton Aff. Ex. 3, at 1, 8; see also id. Ex. 7, at 1 (emphasis
added) (“Calcified pleural plaques correlate with patient’s known
history of asbestosis.”).
The reference to asbestos exposure in
the military must have come from Mr. Filipek, as the doctors would
not have known that information independently.
His inability to
later recall being diagnosed with asbestosis during his deposition
- and while suffering from mesothelioma - does not supersede the
clear statements in the medical records.
Finally, Mr. Filipek’s under oath responses to interrogatories
confirm that he was knowingly diagnosed with asbestosis long before
May 23, 2010.
See Lutz Aff. Ex. 15, at 8.
Plaintiffs do not seek
to amend or withdraw that discovery response.
Based on the evidence in the record, the court cannot conclude
that the facts about when Mr. Filipek was diagnosed with asbestosis
and when he knew about that diagnosis are reasonably controverted.
As a result, denying plaintiffs’ motion to withdraw the admission
would not prevent the “ascertainment of the truth.”
158 F.R.D. at 433.
Prejudice to Defendants
difficulty the nonmoving party may face if withdrawal of the
admissions is allowed, based on that party’s need to obtain
evidence to prove a matter that had previously been admitted.”
Edeh, 295 F.R.D. at 225.
Defendants would be prejudiced if the
court were to permit plaintiffs to withdraw the admission.
admission is consistent with the other evidence in the record and
serves as Mr. Filipek’s last word on the issue given his death
several months ago.
That fact, plus the lack of contemporaneous
medical records and the close of discovery several months ago, ECF
No. 108, at 4, forecloses defendants from pursuing the matter
Under these circumstances, defendants rightly relied on
the admission and would be prejudiced if it were withdrawn.7
result, plaintiffs’ motion is denied.8
Motion for Summary Judgment
Standard of Review
“The court shall 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.”
Fed. R. Civ.
P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The court also questions the timing of plaintiffs’ motion.
First, it is in fact untimely under the scheduling order. See ECF
No. 108, at 5 (establishing a non-dispositive motion deadline of
March 29, 2017).
Second, plaintiffs brought the motion months
after Dr. Holstein submitted his report despite now claiming that
the report triggered the motion. When coupled with the record,
which is consistent with the admission, these facts undermine the
sincerity of plaintiffs’ motion.
Plaintiffs’ motion for leave to file a supplemental response
to defendants’ summary judgment motions is likewise denied. ECF
No. 235. The proposed submission is nothing more than a rebuttal
expert report, which is both improper and untimely. Plaintiffs
expressly waived their right to use rebuttal experts or to submit
rebuttal reports. ECF No. 170. Even if they had not done so, the
deadline for filing expert reports has long passed. See id.
A fact is material only when its resolution affects the outcome of
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
Id. at 255.
The nonmoving party, however, may not rest upon mere
denials or allegations in the pleadings but must set forth specific
facts sufficient to raise a genuine issue for trial.
U.S. at 324.
A party asserting that a genuine dispute exists - or
cannot exist - about a material fact must cite “particular parts of
materials in the record.”
Fed. R. Civ. P. 56(c)(1)(A).
plaintiff cannot support each essential element of a claim, the
court must grant summary judgment because a complete failure of
proof regarding an essential element necessarily renders all other
Celotex, 477 U.S. at 322-23.
Accrual of Limitations Period
governed by the six-year limitation period set forth in Minn. Stat.
§ 541.05, subdiv. 1(5) and that their strict liability and breach
of warranty claims are governed by the four-year limitations period
set forth in § 541.05, subdiv. 2 and § 336.2-725(1).
accrues, i.e., when the plaintiff has discovered, or by the
exercise of due diligence should have discovered, that he has
suffered an asbestos-related injury.
N.W.2d 580, 583 (Minn. 1968).
Dalton v. Dow Chem. Co., 158
Under Minnesota law, two elements
must be satisfied before a products-liability cause of action
“(1) a cognizable physical manifestation of the disease
or injury, and (2) evidence of a causal connection between the
injury or disease and the defendant’s product, act, or omission.”
Hildebrandt v. Allied Corp., 839 F.2d 396, 398 (8th Cir. 1987). In
other words, “[i]t is when the disease manifests itself in a way
manufactured product that the public interest in limiting the time
for asserting a claim attaches and the statute of limitations will
begin to run.”
Karjala v. Johns-Manville Prods. Corp., 523 F.2d
155, 160–61 (8th Cir. 1975).
As discussed above, because the evidence in the record is
sufficient to establish that Mr. Filipek was knowingly diagnosed
with asbestosis in approximately 2006, the statute of limitations
accrued at that time.
As a result, the limitations period expired
long before the Filipeks filed this suit.
The court is not persuaded by plaintiffs’ argument that their
mesothelioma in 2016.
According to plaintiffs, if called on to
consider the issue, the Minnesota Supreme Court would adopt the
“separate disease rule” under which a new limitations period would
notwithstanding an earlier diagnosis of asbestosis.
is contrary to Dalton, which held that the cause of action accrues
when a plaintiff discovers the relationship between his injury and
exposure to asbestos.9
Dalton, 158 N.W.2d at 583.
does not require that a plaintiff be diagnosed with mesothelioma in
order to trigger the limitations period.
Rather, a plaintiff’s
diagnosis of an asbestos-related disease is sufficient to do so.
See id.; see also DeGidio v. AC & S, Inc., No. 62-C9-99-6534, slip
op. at 7 (Dist. Ct. Minn. May 1, 2009) (holding that the statute of
limitations accrued when plaintiff became aware of the connection
between his pleural plaques, a precursor to mesothelioma, and his
asbestos exposure, because the court was “aware of no case law or
statutory provisions ... to support a ‘two disease’ or ‘separate
injury’ rule” under Minnesota law).
This is illustrated in In Re:
Minn. Asbestos Litig., Court File No. C8-94-2875 (Dist. Ct. Minn.),
which applies to all asbestos-related claims brought in Minnesota
Suppl. Hughes Aff. Ex. A, at 1.
In that case, the
Ramsey County District Court created an “inactive docket” for
plaintiffs with “‘pleural disease’ or the like” caused by asbestos
exposure who have not yet developed “asbestos-related cancer,”
Here, as noted,
among other criteria.
Id. § IV F(1).
The purpose of the inactive
docket is to give those plaintiffs “some protection from [a]
possible statute of limitation defense.”
Id. § IV ¶ B.
plaintiff on the inactive docket develops asbestos-related cancer,
for example, he may be removed from the inactive docket and
“reactivated for discovery and trial.”
Id. § IV ¶ F(1).
words, Minnesota has rejected the separate disease rule in asbestos
cases by creating a mechanism to ensure the timeliness of claims
for people who have been diagnosed with a precursor asbestosrelated disease.
The fact that other jurisdictions have held to the contrary
does not establish that the Minnesota Supreme Court would change
the established course now.
Because the court is bound to follow
plaintiffs’ claim accrued when he was diagnosed with asbestosis in
approximately 2006. As a result, plaintiffs’ claim is time barred.
Accordingly, based on the above, IT IS HEREBY ORDERED that:
The motion to withdraw admissions [ECF No. 217] is
The motions for summary judgment [ECF Nos. 192, 194, 202]
The motions for joinder [ECF Nos. 231-34] are granted;
The motion for leave to file Reply/Surreply [ECF No. 235]
is denied; and
The case is dismissed with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: September 21, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court
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