Ambrose v. Tricon Timber, LLC
Filing
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ORDER denying 15 Motion for Summary Judgment. Signed by Judge Donald W. Molloy on 8/11/2016. (DLE)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
MARK A. AMBROSE,
CV 15–113–M–DWM
Plaintiff,
ORDER
vs.
TRICON TIMBER, LLC,
Defendant.
Plaintiff Mark Ambrose (“Ambrose”) sued his former employer Defendant
Tricon Timber, LLC (“Tricon”), alleging injury arising out of his exposure to toxic
chemicals during his employment. (Doc. 1.) Tricon seeks summary judgment on
the grounds that Ambrose failed to file his claim within the applicable statute of
limitations period. (Doc. 15.) Tricon argues that the applicable statute of
limitations period expired by the time Ambrose brought suit in August 2015
because he was aware the chemicals were toxic and he believed he was
experiencing harmful health effects during his employment in 2012. Ambrose
insists that while he knew the chemicals were harmful and he believed they were
causing his health issues, the necessary causal link was missing because the
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“veracity of his belief” was not known until he received a medical opinion to that
effect in September 2013. Genuine issues of material fact prevent a legal
determination as to whether Ambrose’s condition was self-concealing and whether
he acted diligently in seeking the cause of his injury. Having reviewed the
briefing and heard argument from the parties, Tricon’s motion is denied.
BACKGROUND
Tricon operates a lumber mill in St. Regis, Montana. Ambrose was
employed at the mill from July 2011 until March 2012. (Stip. Facts, Doc. 14 at ¶
4(g), (n).) During his employment, Ambrose operated a grapple loader, chip
trucks, and forklift. (Pl.’s SDF, Doc. 23 at ¶ 21.) Near the end of 2011, he also
started working in a room known as the “dip tank,” (id.), where chemicals were
used to treat bulk wood product to prevent mold and preserve the wood, (id. at ¶
23). Ambrose mixed the chemical solution using AntiBlu XP64 and, using a
forklift to bring the wood into the dip tank room, submerged the wood into the
tank to let it soak. (Id. at ¶ 24) At the time, Ambrose knew that the chemicals he
was working with were toxic and dangerous and he requested safety equipment
and a respirator. (Id. at ¶¶ 26-28.) Also at the time of his exposure, Ambrose
experienced symptoms such as nausea and physical burns on his hands, cheeks, in
his nostrils, and in his lungs. (Id. at ¶¶ 30, 48.) Ambrose shared his complaints
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about the safety of the work conditions and his health concerns with friends. (Id.
at ¶¶ 31, 34, 35, 36.) He also recorded a video of the dip tank room and
surrounding facilities, in which he states that he was working in a dangerous
situation and felt that he was in harm’s way. (Id. at ¶ 32.)
In March 2012, Ambrose left Montana and his employment at Tricon and
moved to Florida. (Id. at ¶ 37.) After leaving Tricon, Ambrose initially felt better
and his symptoms appeared to have subsided. (Id. at ¶ 49.) In June 2012, he went
to the hospital in Florida complaining of chest pain. (Id. at ¶ 51.) He had
previously had a heart attack around 2005 and had a pre-existing cardiac condition
and family history of cardiac issues. (Id. at ¶ 51.) He was hospitalized for a few
days and his treating physicians attributed his complaints to his cardiac issues,
never raising the possibility of lung damage. (Id.) He returned to the hospital four
times in 2013 (March 18, August 8, August 20, and August 30), experiencing
chest pain and shortness of breath. (Id. at ¶¶ 52-56.) Until this point, treatment
focused on Ambrose’s cardiac issues and he was not diagnosed with a lung
condition. (Id. at ¶ 57.) On September 5, Ambrose went to the hospital again with
similar complaints and, for the first time, was diagnosed with a permanent lung
condition, persistent severe asthma exacerbation, or possible Reactive Airways
Disease Syndrome. (Id. at ¶ 58.) He was placed on pulmonary medication, and on
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December 9, 2013, his medical records reflect for the first time a potential
association between his lung damage and his exposure to carbonic acid. (Id. at ¶¶
59, 60.) Medical records dated January 2, 2014, state, “they are now considering
poisoning by Antiblu XP64” as the cause of his condition. (Id. at ¶¶ 61, 62.)
STANDARD
A party is entitled to summary judgment if it can demonstrate 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). Summary judgment is warranted where
the documentary evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Only disputes over
facts that might affect the outcome of the lawsuit will preclude entry of summary
judgment; factual disputes that are irrelevant or unnecessary to the outcome are
not considered. Id. at 248. “[I]n ruling on a motion for summary judgment, the
evidence of the nonmovant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Tolan v. Cotton, ___ U.S.___, 134 S. Ct. 1861,1863 (2014)
(per curiam) (internal quotation marks and alterations omitted).
ANALYSIS
Ambrose alleges that Tricon committed battery when it intentionally
exposed him to harmful chemicals. (Doc. 1 at ¶¶ 51-59.) The applicable period of
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limitations for a battery claim is two years. Mont. Code Ann. § 27-2-204(3). That
two-year period begins when a claim accrues,§ 27-2-102(2), which is “when all
elements of the claim or cause exist or have occurred” or “the right to maintain an
action on the claim or cause is complete,” § 27-2-102(1)(a). A “[l]ack of
knowledge of the claim or cause of action, or of its accrual . . . does not postpone
the beginning of the period of limitation.” § 27-2-102(2). However, “when the
facts constituting the claim are by their nature concealed or self-concealing, the
period of limitations does not commence ‘until the facts constituting the claim
have been discovered or, in the exercise of due diligence, should have been
discovered by the injured party.’” Kaeding v. W.R. Grace & Co.-Conn., 961 P.2d
1256, 1259-60 (Mont. 1998) (quoting § 27-2-102(3)).
The initiation of the limitations period is ordinarily an issue of fact, and
disputed issues of material fact as to whether an injury was self-concealing and
whether a plaintiff exercised due diligence “must be resolved by the trier of fact.”
Christian v. Atl. Richfield Co., 358 P.3d 131, 153 (Mont. 2015). “When there is
conflicting evidence as to when a cause of action accrued, the question of whether
an action is barred by the statute of limitations is for the jury to decide.” Johnston
v. Centennial Log Homes & Furnishings, Inc., 305 P.3d 781, 788 (Mont. 2013)
(internal quotation marks and alteration omitted). That is the case here.
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The parties first dispute whether Ambrose’s injury was self-concealing. An
example of a self-concealing injury is one “where the symptoms of an illness are
immediately apparent, but the illness is diagnosed as the result of chemical
exposure only years later.” Christian, 358 P.3d at 153. “This is true even where
plaintiffs have asserted long-standing beliefs or suspicions regarding the link
between the symptoms and their ultimate cause.” Id. In Hando v. PPG Industries,
Inc., the plaintiff was exposed to paint fumes while working at a coal processing
plan in 1981 and 1982. 771 P.2d 956, 958 (Mont. 1989). Hando experienced
symptoms at the time of her employment, including losing consciousness, and she
suffered from physical, mental, and emotional ailments in the years following her
exposure. Id. Between 1982 and 1984, none of the physicians who examined
Hando attributed her continuing ailments to her previous exposure to the paint. Id.
at 962. Hando did not commence her tort action until 1985, after she received a
medical opinion in early 1984 that her problems were caused by her earlier
exposure. Id. at 958. The Montana Supreme Court held that the statute of
limitations tolled during that time because the necessary causal element was not
known until Hando received the diagnosis linking her ailments to her exposure
and that her failure to learn the cause of her injuries was not due to a lack of due
diligence. Id. at 962. The Court reached a similar conclusion in Nelson v. Nelson.
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50 P.3d 139, 143 (Mont. 2002). There the plaintiff alleged negligence in
connection with injuries she sustained as a result of exposure to certain chemicals
and an accidental injection of bovine ecthyma vaccine while working at a ranch.
Id. at 140-41. The Court held that the limitations period tolled until a treating
physician stated that the plaintiff’s exposure and injection years before resulted in
her medical condition. Id. at 143; see also Muller v. Decker Coal Co., 87 F.3d
1321 (9th Cir. 1996) (unpublished) (holding that pursuant to Hando, the statute of
limitations was tolled on the plaintiffs’ claim because their belief that their health
problems were caused by a coal mine was not verified until they received a
diagnosis years later).
In an attempt to distinguish this case from Hando and Nelson, Tricon relies
on the Montana Supreme Court’s decision in Kaeding. See 961 P.2d 1256. The
plaintiff in Kaeding was exposed to vermiculite during his employment with W.R.
Grace and suffered lung- and heart-related ailments for decades. Id. at 1258. The
Court explicitly held that a medical diagnosis need not be rendered before the
statute of limitations may run so long as other facts establish that the veracity of
the plaintiff’s belief about the nature of his injury and its cause before a formal
diagnosis. Id. at 1260. The Court distinguished Hando, noting that Kaeding’s
medical records contained several references to asbestosis prior to his actual
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diagnosis in the mid-1990s. Id. The Court also noted that Kaeding knew his
exposure to vermiculite could cause asbestosis and had hired an attorney
experienced in asbestos litigation four years prior to his diagnosis. Id. at 1261.
That attorney also had a doctor review Kaeding’s medical records, and he found
them consistent with asbestosis. Id. The Court concluded: with “the numerous
references to asbestosis in his medical records, Kaeding’s knowledge of his risk
for asbestos-related diseases from exposure at W.R. Grace, and the conclusions
[the doctor] rendered in 1992, Kaeding should have discovered that he suffered
from asbestosis by September or October of 1992, at the latest.” Id.
Contrary to Tricon’s argument, Hando and Nelson indicate that the
existence of symptoms at the time of exposure does not necessarily prevent an
injury from being self-concealing. Like Hando and Nelson, Ambrose experienced
symptoms during his employment that he believed may have been connected to his
exposure. Also like Hando and Nelson, Ambrose continued to experience
symptoms after leaving his employment and, despite seeking medical treatment, a
connection was not initially made between his exposure and his medical condition.
Tricon insists this case is comparable to Kaeding, however, because Ambrose
was aware of the specific health risks related to AntiBlu XP64. Ambrose admits
that he read the Material Safety Data Sheet on AntiBlu XP64, which notes that
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“[r]epeated inhalation exposure may cause . . . permanent lung damage.” (Doc.
23-5 at 3; see also Ambrose Depo., Doc. 18-1 at 46.) Ambrose also admits that he
attended a lecture by a representative from the chemical company and was told
that the chemicals were dangerous. (Doc. 23 at ¶ 26.) While this indicates that
Ambrose may have been aware of the danger, the “Citation and Notification of
Penalty” issued by the Occupational Safety and Health Administration in August
2012 supports Ambrose’s argument that he was uninformed of the risks, stating
“[o]n or about March 06, 2012 and at times prior thereto, the employer did not
ensure employees were trained to recognize the hazards regarding the limitations
of the respirator use and respiratory hazards such as, but not limited to . . .
(ANTIBLU XP64).” (Doc. 23-6 at 2.) “[T]he state of [Ambrose]’s knowledge is a
factual issue which cannot be resolved in summary judgment . . . .” Muller, 97
F.3d at *2; compare with Roybal v. Bank of Am., N.A., 2015 WL 1534118, at *6
(D. Mont. Apr. 6, 2015) (Christensen, J.) (holding the discovery doctrine did not
apply as to toll the statute of limitations in a loan modification case where there
was no evidence that the plaintiff’s injuries were concealed or self-concealing).
Tricon further argues that even if the injury was self-concealing, Ambrose
was not diligent in informing his treatment providers about his exposure to
AntiBlu XP64. See § 27-2-102(3). Tricon’s argument is a factual one.
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Competing inferences can be drawn from Ambrose’s failure to disclose his
exposure at an earlier time. While it may show a lack of diligence, his failure to
consider that his current symptoms were related to his exposure at Tricon may also
reinforce the self-concealing nature of the injury. In Hando, the Court determined
the plaintiff’s continued attempts to seek medical attention and diagnosis showed
sufficient diligence despite medical professionals’ failure to make the connection.
771 P.2d at 962. Similarly, Ambrose continually sought a medical diagnosis for
his ongoing problems and was repeatedly told they stemmed from his cardiac
issues. There are a lot of things Tricon believes Ambrose should and could have
done to be more diligent, but whether his failure to do them dooms his case is for
the jury to decide.
CONCLUSION
Whether Ambrose’s action is barred by the statute of limitations “must be
resolved by the trier of fact.” Christian, 358 P.3d at 153. Accordingly, IT IS
ORDERED that Tricon’s motion for summary judgment (Doc. 15) is DENIED.
DATED this 11th day of August, 2016.
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