Langston v. 3M Company et al

Filing 295

Memorandum Opinion and Order granting Defendant Mine Safety Appliances Company's 183 Motion for Summary Judgment Based Upon the Statute of Limitations; granting Defendant Pangborn Corporation's 185 Motion for Summary Judgment; and grant ing Defendant American Optical Corporation's 200 Motion for Summary Judgment. All other pending motions are denied as moot. A separate Judgment shall be entered pursuant to Rule 58 of the Federal Rules of Civil Procedure. Signed by District Judge Keith Starrett on January 31, 2014 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
TALMADGE VERNON LANGSTON
V.

PLAINTIFF
CIVIL ACTION NO. 2:12cv163-KS-MTP

PANGBORN CORPORATION;
AMERICAN OPTICAL CORPORATION;
MINE SAFETY APPLIANCES COMPANY; and
MISSISSIPPI VALLEY SILICA COMPANY, INC.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Defendant Mine Safety Appliances
Company’s (“Mine Safety”) Motion for Summary Judgment Based upon the Statute of
Limitations [183]; the Defendant Pangborn Corporation’s (“Pangborn”) Motion for
Summary Judgment [185]; and, the Defendant American Optical Corporation’s
(“American Optical”) Motion for Summary Judgment [200]. Having considered the
submissions of the parties, the record, and the applicable law, the Court finds that
summary judgment should be granted in favor of the Defendants due to the Plaintiff’s
failure to file suit within the time prescribed by the applicable statute of limitations.
I. BACKGROUND
On May 14, 2012, Plaintiff Talmadge Vernon Langston filed suit against twentyone (21) Defendants in the Circuit Court of Forrest County, Mississippi, alleging injury
as a result of being exposed to crystalline silica while working as a sandblaster from
1971 to 1983. (See Compl. [183-1].) “The Plaintiff’s alleged injury is lung disease and
silica related conditions . . . .” (Compl. [183-1] at p. 2.) The Complaint asserts that each
Defendant either manufactured, marketed, distributed, and sold defective personal

respiratory equipment; defective sandblasting equipment; or silica sand. Further, the
Complaint sets forth the following causes of action in support of recovery against all of
the Defendants: strict liability and product defects; negligence; breach of warranties
(express and implied); civil conspiracy; acting in concert; and gross negligence.
On August 20, 2012, an Agreed Judgment of Dismissal Without Prejudice [1-2]
was entered in the state court with respect to Langston’s claims against Dependable
Abrasives, Inc. (“Dependable”). On September 18, 2012, the remaining Defendants
removed the proceeding to this Court on the basis of diversity of citizenship jurisdiction
under Title 28 U.S.C. § 1332. (See Notice of Removal [1].) The Notice of Removal
provides that the dismissal of Dependable, a Mississippi corporation, allowed for
removal and gave rise to diversity jurisdiction since the Plaintiff is a citizen of Mississippi
and all of the other Defendants are citizens of states other than Mississippi. The Notice
of Removal further posits that § 1332(a)’s amount in controversy requirement is met in
light of the punitive damages and actual damages for personal injuries sought by the
Plaintiff.
Only Langston’s claims against Pangborn, American Optical, Mine Safety, and
Mississippi Valley Silica Company, Inc. remain pending as of the date of this opinion
and order. Each of these Defendants, either independently or through joinder, seeks
summary judgment on the basis that Langston’s claims are time-barred under section
15-1-49 of the Mississippi Code. American Optical also requests summary judgment on
other grounds, which need not be addressed due to the Court’s ruling on the statute of
limitations issue.
II. DISCUSSION
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A.

Standard of Review

Federal Rule of Civil Procedure 56 provides that “[t]he 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).
“When a party seeks summary judgment pursuant to an affirmative defense, such as a
statute of limitation, the movant must establish all of the elements of the defense.”
Citigroup Inc. v. Fed. Ins. Co., 649 F.3d 367, 371 (5th Cir. 2011) (citation omitted). The
nonmovant must then come forward with “specific facts showing the existence of a
genuine issue for trial. Id. “An issue is ‘genuine’ if the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving party.” Cuadra v. Houston Indep.
Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citation omitted). “‘An issue is material if
its resolution could affect the outcome of the action.’” Sierra Club, Inc. v. Sandy Creek
Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of
Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)).
The court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inferences to
be drawn therefrom in the light most favorable to the nonmoving party.” Sierra Club,
Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue for trial.” Oliver v.
Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citing Sec. & Exch. Comm’n v. Recile, 10 F.3d
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1093, 1097 (5th Cir. 1993)).
B.

Analysis

The parties agree that section 15-1-49 of the Mississippi Code supplies the
applicable statute of limitations for Langston’s claims. The statute provides in pertinent
part:
(1) All actions for which no other period of limitation is
prescribed shall be commenced within three (3) years next
after the cause of such action accrued, and not after.
(2) In actions for which no other period of limitation is
prescribed and which involve latent injury or disease, the cause
of action does not accrue until the plaintiff has discovered, or
by reasonable diligence should have discovered, the injury.
Miss. Code Ann. § 15-1-49. With respect to subsection (2) of the statute, which applies
to the latent injuries alleged in this action, the Mississippi Supreme Court has held “that
the plain language of the statute” results in a cause of action accruing “upon discovery
of the injury, not discovery of the injury and its cause.” Angle v. Koppers, Inc., 42 So.
3d 1, 5 (¶ 9) (Miss. 2010).1 Defendants contend that Langston had knowledge of the
lung injuries alleged in this lawsuit well before May 14, 2009, three years prior to the
filing of this action. Langston argues that his claims did not accrue until he was

1

The Mississippi Supreme Court’s holdings on issues of substantive law are
controlling in this diversity action. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58
S. Ct. 817, 82 L. Ed. 1188 (1938). Mississippi’s highest court has noted that a different
statutory discovery rule applies in medical malpractice actions. See Huss v. Gayden,
991 So. 2d 162, 165-66 (¶ 5) (Miss. 2008). Under section 15-1-36 of the Mississippi
Code, the relevant inquiry “is when the patient can reasonably be held to have
knowledge of the injury itself, the cause of the injury, and the causative relationship
between the injury and the conduct of the medical practitioner.” Id. (citing Smith v.
Sanders, 485 So. 2d 1051, 1052-53 (Miss. 1986)).
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diagnosed with silicosis on November 7, 2012. The Court concludes that the
Defendants have the better side of the argument.
Defendants assert that the following circumstances show Langston’s knowledge
of the injuries at issue in this case prior to May 14, 2009:
!

Langston’s retained medical expert, Dr. Steven Haber, testified at
deposition that Langston was diagnosed with chronic obstructive
pulmonary disease (“COPD”) in 1992.2 Dr. Haber’s expert report provides
that Langston was diagnosed with emphysema and COPD in 2003.3

!

An x-ray report from July, 2001, indicates that Langston was admitted to
Anderson Regional Medical Center South with diagnoses of chronic lung
disease and shortness of breath, and lists an impression of moderate
COPD.4

!

In seeking Social Security disability benefits, Langston stated that his
emphysema, which resulted in shortness of breach, started to bother him
in 2001 and prevented him from working beginning on August 1, 2003.5

!

The SSA determined that Langston became eligible for disability benefits
due to chronic pulmonary insufficiency on December 2, 2003.6

2

(See Haber Dep. [185-2] 48:21-49:1.) COPD refers to “those diseases with
permanent or temporary narrowing of small bronchi, in which forced expiratory flow is
slowed, especially when no etiologic or other more specific term can be applied.”
Stedman’s Medical Dictionary (27th ed. 2000); see also Taber’s Cyclopedic Medical
Dictionary (2011) (defining COPD as “a group of debilitating, progressive, and
potentially fatal lung diseases that have in common increased resistance to air
movement, prolongation of the expiratory phase of respiration, and loss of the normal
elasticity of the lung”).
3

(See Haber Report [183-7] at p. 3.)

4

(See Doc. No. [185-3 at ECF p. 2].)

5

(See Social Security Administration (“SSA”) Records [183-2 at ECF p. 4].)

6

(See SSA Records [183-2 at ECF p. 2].)
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!

Langston testified at deposition that 90 percent of his “disability back in
2002 was due to . . . breathing problems”.7

!

Langston’s medical records dated July 13, 2005, August 25, 2005,
November 29, 2005, October 30, 2006, November 16, 2006, December
10, 2007, April 16, 2008, and August 18, 2008, list an impression of
severe or significant COPD.8 The medical record dated July 13, 2005,
also notes that Langston “has been a heavy smoker for quite a long time
and as far back as ‘92 he thinks he was told he might have emphysema. .
. . He has a history of being a sand blaster . . . .” A medical record dated
July 18, 2005, provides that Langston “has known he has had some
COPD for a number of years.”9 The medical record dated April 16, 2008,
also lists an impression of bronchitis.

!

A July 21, 2005 x-ray report includes an impression of pulmonary fibrotic
scarring, i.e., excess fibrous tissue in the lungs.10 An August 4, 2005 xray report notes the existence of moderately extensive COPD with
fibrosis.11 An August 8, 2005 x-ray report includes an impression of
“coarse increased bronchial markings at the mid and lower lung fields
bilaterally compatible with some endobronchial scarring and
accompanying bronchitis.”12 An April 16, 2008 x-ray report lists a
diagnosis of shortness of breath and notes the existence of mild fibrotic
scarring.13

!

Langston testified that approximately three or four years after he filed for
disability, which would have been in or around 2007, he researched the
disease silicosis and found out that it is caused by the inhalation of silica
dust.14 Langston was “trying to find out -- after I found out I had lung

7

(Langston Dep. [200-2] 242:25-243:3) (emphasis added).

8

(Medical Records [183-3 at ECF pp. 1, 2, 3, 8, 11-12, 13, 14-15, 31].)

9

(Medical Records [183-3 at ECF p. 21].)

10

(See Doc. No. [254-5 at ECF p. 2].)

11

(See Doc. No. [254-7 at ECF p. 2].)

12

(Doc. No. [254-8 at ECF p. 2].)

13

(See Doc. No. [254-10 at ECF p. 2].)

14

(See Langston Dep. [200-2] 39:21-24, 210:11-211:25.)
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cancer -- I mean lung trouble, I wanted to find out all about lung problems
that I could, and silicosis just happened to pop up.”15
Defendants’ legal arguments are principally grounded on two Mississippi
Supreme Court opinions: Angle, 42 So. 3d 1, and Lincoln Electric Co. v. McLemore, 54
So. 3d 833 (Miss. 2010). In Angle, the Mississippi Supreme Court considered whether
the trial judge erred in granting summary in favor of the Defendants due to the running
of section 15-1-49’s three-year period of limitations. 42 So. 3d at 2 (¶ 1). The plaintiff,
Rebekah Angle, filed suit on March 17, 2006, alleging numerous illnesses and injuries
resulting from exposure to toxic chemicals produced by a wood-treatment facility that
was within close proximity to Angle’s residence. Id. at 2 (¶ 2). The Defendants argued
that the statute of limitations accrued no later than 2001, when Angle discovered or was
diagnosed with her various illnesses. Id. at 3 (¶ 4), 4 (¶ 7). Angle claimed that the time
for her to file suit did not begin to run until she discovered that her medical problems
were caused by exposure to toxic chemicals. Id. at 4 (¶ 7). After examining several
prior opinions, the court concluded:
We find that Angle's cause of action accrued at the latest in 2001, the date
she was last diagnosed with an injury or disease. No provision of Section 151-49 provides that a plaintiff must have knowledge of the cause of the injury
before the cause of action accrues, initiating the running of the statute of
limitations. Therefore, we find that Angle's claims are time-barred under
Mississippi Code Section 15-1-49(2), as she filed her complaint in 2006,
approximately five years after her discovery of the last injury.
Id. at 7 (¶ 18). Thus, the trial court’s grant of summary judgment was affirmed. Id. at 9
(¶ 23).
In McLemore, the Mississippi Supreme Court considered whether the trial judge
15

(Langston Dep. [200-2] 211:3-7.)
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erred in denying a motion for summary judgment (and a motion for judgment
notwithstanding the verdict) based on the purported expiration of the statute of
limitations. 54 So. 3d at 835 (¶ 11). The plaintiff, Stanley McLemore, filed suit on
November 14, 2005, against certain manufacturers of welding rods “for exposure to
harmful welding fumes that resulted in his eventual diagnosis of manganism, a
neurological disease caused by high exposure to manganese.” Id. at 833-34 (¶¶ 1-2).
The Defendants argued that McLemore’s time to sue ran from September 3, 2002. On
that date, McLemore knew that he had an injury because a physician diagnosed him
with Parkinsonism and informed him that this condition may have been related to his
work as a welder. Id. at 835 (¶ 12). McLemore claimed “that his cause of action did not
accrue until October 2005, when he was diagnosed with manganism.” Id. at 835 (¶ 13).
The court primarily relied on its earlier opinion in Angle in determining that McLemore’s
claims accrued when he knew of his diagnosis of Parkinsonism in 2002, as opposed to
his later diagnosis of manganism. See id. at 836 (¶ 15), 838 (¶¶ 23-24). The following
circumstances showed that McLemore either knew or should have known of his injury
(as opposed to its cause) no later than September, 2002: (i) McLemore had difficulty
using his left hand in December, 2001; (ii) McLemore filed a separate complaint
complaining of “serious neurological injury” prior to being diagnosed with manganism in
2005; and (iii) McLemore was advised that he had Parkinsonism and that it might have
been related to his occupation on September 3, 2002. Id. at 838 (¶¶ 23-24). As a
result, McLemore’s November, 2005 complaint was untimely and the trial court’s ruling
was reversed. See id. at 839 (¶¶ 30-31).
Langston also chiefly relies on Mississippi Supreme Court opinions in support of
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his argument that the statute of limitations did not begin to run until he was diagnosed
with silicosis on November 7, 2012. See Phillips 66 Co. v. Lofton, 94 So. 3d 1051
(Miss. 2012); Empire Abrasive Equip. Corp. v. Morgan, 87 So. 3d 455 (Miss. 2012);
Kinsey v. Pangborn Corp., 78 So. 3d 301 (Miss. 2011); Clark Sand Co. v. Kelly, 60 So.
3d 149 (Miss. 2011). In Lofton, the court refused to overturn the jury’s finding that the
plaintiff timely brought suit for injuries to his lungs as a result of exposure to asbestos
products. See 94 So. 3d at 1060 (¶ 17). The plaintiff’s May, 2004 complaint was filed
within the statute of limitations because he “could not reasonably have known about his
injury until he sought treatment in September 2003 for symptoms associated with his
asbestosis and was diagnosed with pulmonary fibrosis.” Id. at 1059 (¶ 16). Morgan,
Kinsey, and Kelly were wrongful death actions in which the plaintiffs’ decedents were
alleged to have suffered from silicosis. In each case, the Mississippi Supreme Court
provided that the statute of limitations for any “survival-type” claims began to run on the
date the plaintiffs’ decedent was diagnosed with silicosis. See Morgan, 87 So. 3d at
457 (¶ 2), 462 (¶ 25); Kinsey, 78 So. 3d at 307 (¶ 18); Kelly, 60 So. 3d at 161 (¶ 42).
The Defendants in Morgan, Kinsey, and Kelly did not appear to contest the date of
accrual for the subject claims, and the court found the claims time-barred in each case.
See Morgan, 87 So. 3d at 462 (¶ 25), 464 (¶ 32); Kinsey, 78 So. 3d at 307-08 (¶¶ 1820); Kelly, 60 So. 3d at 162 (¶ 46).
Without overlooking the obvious, the Court notes that Langston’s November 7,
2012 silicosis diagnosis occurred almost six (6) months after he filed suit on May 14,
2012. The diagnosis was made by Dr. Steven Haber, Langston’s retained medical
expert. No medical record showing a diagnosis of silicosis from any of Langston’s
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treating physicians has been presented to the Court. Clearly then, the subject diagnosis
is immaterial to the issue of when the claims alleged in the Complaint accrued for
statute of limitations purposes and fails to give rise to a genuine dispute for trial. Any
contrary argument from Langston is “disingenuous and without merit.” Powe v. Byrd,
892 So. 2d 223, 228 (¶ 17) (Miss. 2004) (rejecting the plaintiff’s argument that the
statute of limitations did not start to run until December 1, 2000, when her complaint
was filed on August 3, 2000). Further, the accrual rule cited by the Mississippi Supreme
Court in Morgan, Kinsey, and Kelly is inapplicable here since the plaintiffs in those
actions filed suit subsequent to each respective silicosis diagnosis. See Morgan, 87 So.
3d at 462 (¶ 25); Kinsey, 78 So. 3d at 307 (¶18); Kelly, 60 So. 3d at 162 (¶ 46).
Notwithstanding the inadequacy of Langston’s accrual argument, the Court must
determine if the Defendants have met their burden of establishing that Langston either
knew or should have known of his injuries prior to May 14, 2009. The Court finds
McLemore and Lofton instructive in resolving this issue. The record before the Court
shows that Langston, similar to McLemore, experienced physical problems related to
the injuries alleged in the Complaint more than three years prior to the initiation of his
action. McLemore experienced difficulty using his left hand in December, 2001, while
his November, 2005 complaint alleged serious neurological injuries. See McLemore, 54
So. 3d at 835 (¶ 9), 838 (¶ 24). Langston was diagnosed with chronic lung disease and
shortness of breath in July, 2001,16 believed that his emphysema started to bother him

16

(See Doc. No. [185-3 at ECF p. 2].)
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in 2001,17 became eligible for disability benefits due to chronic pulmonary insufficiency
on December 2, 2003,18 was found to have pulmonary fibrotic scarring and significant
COPD as early as July, 2005,19 and was found to have bronchitis in April, 2008;20
whereas his May 14, 2012 Complaint alleges “lung disease”, injury to “Plaintiff’s lungs
and body”, and “premature disability.” (Compl. [183-1] at pp. 2, 13, 14.) Although it
does not appear that any medical provider affirmatively informed Langston of any
correlation between his various pulmonary ailments and his work as a sandblaster prior
to 2012, “notice of this causal relationship generally is irrelevant to the accrual of the
cause of action . . . .” McLemore, 54 So. 3d at 838 (¶ 23). Also analogous to
McLemore, Langston filed suit alleging injury caused by exposure to crystalline silica
prior to the silicosis diagnosis that purportedly triggered the running of the statute of
limitations. See id. at 835 (¶¶ 9, 13) (providing that McLemore argued that his cause of
action did not accrue until he was diagnosed with manganism in 2005, but his separate
2004 complaint alleged injuries caused by exposure to manganese). Langston even
testified at deposition that in or around 2007, he researched the disease silicosis due to
his lung problems. (See Langston Dep. [200-2] 39:21-24, 210:11-211:25.) “These
events and actions by . . . [Langston] show that he knew, (or should have known) no
later than . . . [2008], that he had an injury.” McLemore, 54 So. 3d at 838 (¶ 24).

17

(See SSA Records [183-2 at ECF p. 4].)

18

(See SSA Records [183-2 at ECF p. 2].)

19

(See Medical Records [183-3 at ECF p. 13]; Doc. No. [254-5 at ECF p. 2].)

20

(See Medical Records [183-3 at ECF p. 15].)
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This action is also similar to Lofton in that the “definitive diagnosis of” silicosis did
not occur until after suit was filed. 94 So. 3d at 1059 (¶ 16) (providing that Lofton filed
suit in 2004, but “[a] definitive diagnosis of asbestosis was not made until 2010”).
However, unlike Lofton, Langston should have reasonably “known about his injury”
more than three years prior to filing suit since “he sought treatment . . . for symptoms
associated with his . . . [silicosis] and was diagnosed with” numerous “pulmonary”
diseases or conditions before 2009. Id. Dr. Haber testified at deposition that
Langston’s COPD, bronchitis, and emphysema were related to silica exposure. (See
Haber Dep. [254-11] 35:6-11, 54:21-55:10.) Dr. Haber’s trial testimony in a separate
proceeding comports with this deposition testimony:
Q.

Thank you, Doctor. You brought us this slide here which talks about
silicosis and COPD. What is significant about what you brought us here
on this slide?

A.

Well, silica dust is one of the most important occupational toxins. And the
dust has been documented to be posing increased risk for development of
chronic bronchitis, COPD, and then can cause this compensatory
emphysema. . . .

(See Doc. No. [183-8] 209:20-210:3.) The reasoning of Lofton, if not the holding,
applied to the facts of this case supports the dismissal of Langston’s claims based on
untimeliness.
The Mississippi Supreme Court’s holding in PPG Architectural Finishes, Inc. v.
Lowery, 909 So. 2d 47 (Miss. 2005), further supports the Defendants’ requests for
dismissal. There, the court found that the trial judge erred in refusing to grant summary
judgment based on the running of the statute of limitations under section 15-1-49. See
Lowery, 909 So. 2d at 51-52 (¶¶ 16-22). The medical attention sought by the plaintiff,
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Melissa Lowery, confirmed that she knew she was injured for purposes of accrual. Id.
at 51 (¶ 16). Further, “Lowery did not require absolute certainty nor an expert opinion to
vest the right to a cause of action under this state’s products liability statute.” Id. at 5152 (¶ 18) (citations omitted). In this case, the extensive and consistent medical
treatment sought by Langston for his breathing problems confirms that he either knew
or should have known of his lung injuries prior to 2009. Moreover, the accrual of
Langston’s cause of action was not dependent upon an expert witness placing the label
of silicosis on his injury.
III. CONCLUSION
Langston seeks recovery for “lung disease and silica related conditions”, injury to
his “lungs and body”, and “premature disability”. (Compl. [183-1] at pp. 2, 13, 14.) The
summary judgment record establishes that Langston either knew or should have known
of these injuries more than three (3) years prior to the filing of this lawsuit. Thus, there
is no genuine issue as to any material fact and Langston’s claims are time-barred under
section 15-1-49 of the Mississippi Code.
IT IS THEREFORE ORDERED AND ADJUDGED that the summary judgment
motions (Doc. Nos. [183], [185], [200]) are granted and Plaintiff’s Complaint is
dismissed with prejudice. Any other pending motion is denied as moot. A separate
judgment will be entered in accordance with Rule 58 of the Federal Rules of Civil
Procedure.
SO ORDERED AND ADJUDGED this the 31st day of January, 2014.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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