842 F.2d 1290
Unpublished Disposition
Shirley F. HATFIELD; Mary McGee; James Hatfield; Jackson
McGee; Donald Morgan; Bernice Morgan,
Plaintiffs-Appellants,
and
Ivan Deskins; Bobi Kline; Joseph Barnes, Sr.; Katherine
Diehl; Sterling Fogle; Mary Fogle; Katherine Savitski;
Blance Warrington; George Warrington; Thomas Morgan;
Linda Morgan; Mary Clark; Charles Wagner; Cecilia J.
Wagner; Charles G. Cookson; David W. Thompson; Agnes E.
Thompson; John J. Gruss; Kathryn Gruss; Beulah B.
Burgess; Willard A. Burgess; Thomas W. Muir; Linda Muir;
Edward Abbott; Phyllis Abbott; Doris M. Horseman; Marvin
D. Horseman; Andrew Barrett; William Minton; Carolyn J.
Minton; Robert Gardiner; C. Marguerite Gardiner, Plaintiffs,
v.
OCCIDENTAL CHEMICAL CORPORATION; E.I. Dupont De Nemours &
Co., Inc.; Union Carbide Corporation; Shell Chemical;
Shell Oil Company; Asarco Incorporated; Ciba-Geigy
Corporation; Ciba-Geigy Limited; Velsicol Corporation;
Koopers Company Incorporated; Food Machinery and Chemical
Corporation; American Cyanamid Company; Uniroyal
Incorporated; Hercules, Incorporated; Chevron Chemical
Company; Travelers Insurance Company; Solvay & Cie,
Defendants-Appellees,
and
Allied Chemical Corp., Defendant.
John J. GRUSS; Kathryn Gruss; William Minton; Carolyn
Minton; Thomas W. Muir; Linda Muir; Bobie Isabel Kline;
Charles Kline; Katherine Savitski; David Thompson; Agnes
Thompson; Beulah Burgess; Willard Burgess; Charles
Wagner; Cecilia Wagner; Edward Abbott; Phyllis Abbott;
Andrew Barnett; Ivan Deskins; Sterling Fogle; Mary Fogle;
Thomas Morgan; Linda Morgan, Plaintiffs-Appellants,
and
Charles G. Cookson; Jimmie R. Hatfield; Shirley F.
Hatfield; Jackson McGee; Mary McGee; Doris M.
Horseman; Marvin D. Horseman; Robert
Gardiner; Marguerite
Gardiner, Plaintiffs,
v.
ALLIED CHEMICAL CORPORATION; Allied Corporation;
Occidental Chemical Corporation; E.I. Dupont De Nemours &
Co., Inc.; Union Carbide Corporation; Shell Chemical
Corporation; Shell Oil Company; Asarco Incorporated;
Ciba- Geigy Corporation; Ciba-Geigy Limited; Velsicol
Corporation; Koppers Company Inc.; Food Machinery and
Chemical Corporation; American Cyanamid Company; Uniroyal
Incorporated; Hercules, Incorporated; Chevron Chemical
Company; Travelers Insurance Company; Solvay & Cie,
Defendants-Appellees.
OCCIDENTAL CHEMICAL CORPORATION; E.I. Dupont De Nemours &
Co., Inc.; Union Carbide Corporation; Shell Chemical;
Shell Oil Company; Asarco Incorporated; Ciba-Geigy
Corporation; Ciba-Geigy Limited; Velsicol Corporation;
Koopers Company Incorporated; American Cyanamid Company;
Uniroyal Incorporated; Hercules, Incorporated; FMC
Corporation, Plaintiffs- Appellants,
and
Ivan Deskins; Bobi Kline; Joseph Barnes; Katherine Diehl;
Sterling Fogle; Mary Fogle; Katherine Savitski; Blance
Warrington; George Warrington; Thomas Morgan; Linda
Morgan; Mary Clark; Charles Wagner; Cecilia J. Wagner;
Charles G. Cookson; David W. Thompson; Agnes E. Thompson;
Mary McGee; John J. Gruss; Kathryn Gruss; Beulah B.
Burgess; Willard A. Burgess; Thomas W. Muir; Linda Muir;
Edward Abbott; Phyllis Abbott; Doris M. Horseman; Marvin
D. Horseman; Andrew Barrett; William Minton; Carolyn J.
Minton; Robert Gardiner; C. Marguerite Gardiner, Plaintiffs,
v.
James HATFIELD; Jackson McGee; Donald Morgan; and Bernice
Morgan, Defendants-Appellees,
and
Allied Chemical Corp., Food Machinery and Chemical
Corporation; Chevron Chemical Company; Travelers
Insurance Company; Solvay & Cie, Defendants.
Nos. 86-2014, 86-2022 and 86-2045.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 30, 1987.
Decided March 21, 1988.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Mary Alane Downs (Roy L. Mason; Donahue, Ehrmantraut & Montedonico, Chartered, on brief), for appellant.
William Joseph Jackson (Rudolph Rose; Semmes, Bowen & Semmes, on brief); Frank James Eisenhart, Jr. (Robert A. Limbacher; Dechert, Price & Rhoads; Read K. McCaffrey; Whiteford, Taylor & Preston, on brief), for appellees.
Before JAMES DICKSON PHILLIPS and SPROUSE, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
JAMES DICKSON PHILLIPS, Circuit Judge:
This is an appeal from a final judgment entered, pursuant to Fed.R.Civ.P. 54(b), against some of the plaintiffs in consolidated toxic tort actions brought by former employees of Allied Chemical Corp. (Allied) who claim to have developed neurological problems as a result of on-the-job exposure to chemicals. We affirm.
* James Hatfield, Jackson McGee, Donald Morgan, and Bernice Morgan were employed at Allied's Race Street plant in Baltimore for varying periods of time. Since leaving the plant, each has been diagnosed as suffering from "entrapment syndrome," a degenerative neurological disease that is typically manifested in numbness of the extremities and may be caused by exposure to toxic chemicals.
On January 10, 1984, Hatfield, McGee, and their respective spouses, along with several other former Allied employees who are no longer involved in this litigation, filed a diversity action in the District of Maryland against Allied and 14 other companies alleged to have supplied Allied with the chemicals used at the Race Street plant (the Supplier Defendants). This action was later consolidated with a second tort action against the same defendants filed by the Morgans and several other former Allied employees who are no longer involved in this litigation. In each action, the former employees sought damages for their neurological problems under five different theories--negligence and gross negligence, nuisance, strict liability in tort, breach of warranty, and "fraud, concealment, and misrepresentation." The spouses asserted derivative claims for loss of consortium.
Shortly after filing these tort actions, the former employees filed claims against Allied with the Maryland Workmen's Compensation Commission (WCC), seeking compensation for wage losses stemming from the same neurological condition. Allied contested these compensation claims on two grounds: that the alleged condition was not caused by the former employees' on-the-job exposure to chemicals, and that the claims were, in any event, barred by limitations. After a hearing, the WCC entered orders denying all of the compensation claims. Most of the claims were denied on the basis of limitations, with alternative findings that the claimant "did not sustain the occupational disease of bilateral carpal and tarsal tunnel syndrome [entrapment syndrome] arising out of and in the course of employment." Four of the claims were denied solely on the basis that the claimant had not sustained an occupational disease arising out of his employment. The remaining claims were denied on other grounds. The former employees did not appeal the WCC's decisions against them.
The defendants then responded in these consolidated actions with a series of motions for summary judgment. First, Allied and the Supplier Defendants filed a joint motion for partial summary judgment, alleging that the claims of 19 of the plaintiffs were barred by limitations. While this motion was pending, Allied filed a second motion for summary judgment, asserting that the claims of all the plaintiffs--both the former employees and their spouses--were barred by the employees' decision to pursue their statutory compensation claims against Allied to a final judgment. At the same time, the Supplier Defendants filed a motion for partial summary judgment, alleging that the claims of 20 of the plaintiffs were barred, under the doctrine of collateral estoppel, because the WCC had "determined" that their injuries were not caused by their exposure to chemicals at Allied.
On November 29, 1985, the district court granted both Allied and the Supplier Defendants summary judgment, based on limitations, as to the six plaintiffs who are appellants here, but denied it as to the remaining plaintiffs. The court ruled that the claims of these six plaintiffs were barred, as a matter of law, because they had had a discussion at a party more than three years before this action was filed which was sufficient to put them on notice of their causes of action.
On December 17, 1985, the district court granted Allied's motion for summary judgment against all plaintiffs, on the ground that they had elected their exclusive remedy against Allied by pursuing the workmen's compensation claims to a final judgment. At the same time, the district court denied the Supplier Defendants' motion for summary judgment based on collateral estoppel. The remaining plaintiffs then proceeded to trial against the Supplier Defendants.
On February 3, 1986, the district court entered a Fed.R.Civ.P. 54(b) "final judgment" against the six plaintiffs who are appellants here. This judgment was entered on the basis of both the November 29 order granting summary judgment against them in favor of all defendants, and the December 17 order granting summary judgment in favor of Allied alone. The six plaintiffs here appeal that judgment.1
II
The first and dispositive issue is whether the district court erred in ruling on summary judgment that the plaintiffs' claims were barred by limitations. It is undisputed that the three-year statute of limitations set forth in Md.Cts. and Jud.Proc.Code Ann. Sec. 5-101 (1984), governs these tort claims.2 It is also undisputed that the injuries alleged here were sufficiently unknowable in their origins that the Maryland discovery rule should be utilized to determine when the statute of limitations began to run. Under this rule, the statute begins to run only when the plaintiff "discovers, or through the exercise of reasonable care and diligence should have discovered, the nature and cause of his disability or impairment." Harig v. Johns-Manville Products Corp., 394 A.2d 299, 300 (Md.1978).
The discovery rule was adopted to mitigate the harshness of the statute of limitations for victims who cannot fairly be charged with slumbering on their rights. Poffenberger v. Risser, 431 A.2d 677, 679-80 (Md.1981). This of course conflicts with the essential purpose of the statute of limitations, which is to insure fairness to defendants by relieving them of responsibility for defending against claims after " 'evidence has been lost, memories have faded, and witnesses have disappeared.' " See Harig, 394 A.2d at 302 (quoting Order of Railroad Telgraphers v. Railway Express Agency, 321 U.S. 342, 349 (1944)); Pierce v. Johns-Manville Sales Corp., 464 A.2d 1020, 1026 (Md.1983). Maryland courts have resolved these competing considerations by holding that even in discovery rule cases, the limitations period begins to run when the plaintiff gains knowledge sufficient to put him "on notice or inquiry" that he may have a cause of action--that is, "knowledge of circumstances which would cause a reasonable person in the position of the plaintiff[ ] to undertake an investigation which, if pursued with reasonable diligence, would have led to knowledge of the alleged [wrong]." O'Hara v. Kovens, 503 A.2d 1313, 1324 (Md.1986). As of that date, the plaintiff is charged with knowledge of the existence of his cause of action, even though he may in actuality be completely unaware of it. See id. at 1317 (quoting Lutheran Hospital v. Levy, 482 A.2d 23 (Md.App.1984)). In this fashion, the law places the plaintiff with a latent injury in a position equal to--but no more favorable than--that of the plaintiff whose injury is immediately apparent: each has three years in which to make an investigation, seek expert advice and decide whether to file suit. Id. at 1317-18.
Although Maryland limitations law applies in this diversity action, the federal rules of course govern the propriety of summary judgment.3 Lundy v. Union Carbide Corp., 695 F.2d 394, 396 (9th Cir.1982); see Barwick v. Celotex Corp., 736 F.2d 946 (4th Cir.1984) (applying Fed.R.Civ.P. 56 to determine the propriety of district court's grant of summary judgment based on limitations in diversity case). Under Rule 56(c), summary judgment is proper if the moving party establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Once the movant has made such a showing, the burden shifts to the non-moving party to come forward with documentary evidence sufficient to show that there is a genuine issue for trial. Barwick, 736 F.2d at 958. In deciding whether a "genuine" issue of fact exists, the court must view the evidence in the light most favorable to the non-moving party, and give him the benefit of all inferences that may reasonably be drawn from those facts. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970).
Applying these principles to the facts of this case, the district court found that the claims of these six plaintiffs were barred as a matter of law since it was "clear" that they had knowledge sufficient to put them on notice of their causes of action more than three years before this action was filed. In reaching this conclusion, the district court relied on the following basic facts, which it found to be beyond dispute:
1. all of these plaintiffs were present at a party for former Allied employees given by the Morgans;
2. this party took place on either December 27, 1980 or January 3, 1981, both of which were more than three years before the plaintiffs' claims were filed;
3. at the party the plaintiffs participated in a discussion of the common disabilities which past employees of Allied seemed to share and passed around newspapers clippings about health problems caused by exposure to toxic chemicals.
From these basic facts, the district court inferred that the conversation at the party "led the past employees to make the crucial link between their current disabilities and their prior exposure to chemicals while working at Allied." The court found this knowledge sufficient, as a matter of law, to put the plaintiffs on notice that they might have causes of action against Allied and the Supplier Defendants, and therefore concluded that their claims were barred by limitations.
On appeal, the plaintiffs do not dispute that they attended the party at the Morgans' house. Instead, they argue that summary judgment was inappropriate because there were genuine disputes on three facts material to the limitations question: when the party took place, what was actually discussed at the party, and whether any discussion had led them to suspect that their neurological problems might have been caused by their exposure to chemicals at Allied. We do not think the summary judgment record supports any of these contentions.
It is undisputed that the party took place on a Saturday between Christmas 1980 and January 16, 1981. There are three possibilities: December 27, 1980, January 3, 1981 and January 10, 1981. Since these actions were filed on January 10, 1984, the plaintiffs' claims are barred if the party occurred on either December 27 or January 3. The defendants presented sufficient evidence from which a reasonable jury could find that the party occurred on one of these two dates. The party's hostess, Bernice Morgan, testified in deposition that she thought the party had been on the Saturday between Christmas and New Year's, which would have been December 27. Donald Morgan's deposition indicated that the purpose of the party had been to celebrate the Morgans' twenty-fifth wedding anniversary, which was on December 28. Other documentary evidence submitted by the defendants placed the party sometime between Christmas and New Year's.
In the face of this properly supported motion for summary judgment, the plaintiffs failed to produce any evidence from which a reasonable jury could find that the party occurred after January 10. They relied solely on the following evidence. First, they produced Donald Morgan's deposition testimony indicating that he "could not recall" the exact date of the party. This was insufficient to raise a triable issue of fact. A party opposing a properly supported motion for judgment cannot create a genuine factual dispute simply by claiming that he does not recall a particular fact upon which the moving party has presented affirmative evidence. See Carter v. Newsday, Inc., 528 F.Supp. 1187, 1191 (E.D.N.Y.1981); see generally 6 J. Moore, W. Taggart and J. Wicker, Moore's Federal Practice Sec. 56.15 n. 39, at 56-484-85. Second, the plaintiffs produced Mary McGee's deposition testimony to the effect that she was "sure" the party was held some time in January of 1981, and Jack McGee's testimony that he believed it to have taken place sometime before January 22, when he first met with an attorney to discuss a potential lawsuit. While these assertions contradict Bernice Morgan's testimony that the party was on December 27, 1980, they are not sufficient to create a genuine dispute as to the date of the party, for neither is inconsistent with the defendant's alternative position that it occurred on January 3. On this record, we cannot conclude that there was a genuine issue as to when the party took place.
Nor do we think the summary judgment record reveals any genuine dispute as to whether the plaintiffs discussed their common disabilities at the party. The defendants presented deposition testimony from Jimmy Hatfield, Mary McGee and Bernice Morgan indicating that the conversation at the party had included a discussion of their common medical problems. They also produced deposition testimony from Jack McGee admitting that the conversation included a discussion of the effects of exposure to toxic chemicals. See J.A. at 354 ("we was just talking about the chemicals, how they would hurt you or affect you"). Jack McGee also testified that Bernice Morgan was passing around some newspaper clippings she had been collecting regarding the health problems caused by exposure to chemicals.
In opposition, the plaintiffs presented only evidence to the effect that they could not recall whether they had discussed common ailments at the party or whether newspaper clippings were passed around there. As indicated, a party opposing summary judgment cannot create a genuine issue about a fact on which the moving party has presented affirmative evidence merely by presenting evidence that he cannot recall that fact. For this reason the district court was correct in concluding that, on the record before it, there was no genuine dispute about what was discussed at the party.
Finally, we do not think the summary judgment record reveals a genuine dispute about whether the conversation at the party led the plaintiffs to suspect that their physical problems might be caused by their exposure to chemicals at Allied. The plaintiffs argued that even if they learned at the party that they all suffered from numbness in their extremities, they did not suspect that these problems might be caused by their exposure to chemicals at Allied until their doctors and attorneys told them so in late January of 1981, just within the three-year limitations period; until that point, they claim, they assumed their common ailments were the result of failing health. By concluding that the party conversation led them to make this possible connection, the plaintiffs argue, the district court violated its obligation to give them, as the non-moving parties, the benefit of all reasonable inferences in their favor.
We disagree, for we do not think the inference suggested by the plaintiffs is reasonable on this record. There was also uncontradicted testimony that the conversation at the party included discussion not only of the plaintiffs' common ailments, but also whether those ailments were caused by something they were exposed to at Allied. There was also uncontradicted testimony that newspaper clippings about health problems caused by exposure to toxic chemicals were passed around at the party. Some of the plaintiffs testified directly that they began to suspect at the party that exposure to chemicals had caused their common problems. See J.A. at 292 (Jimmy Hatfield: "There was two at the same table plus me had the same problem, and we was wondering if we contracted something from Allied."). Finally, and most significantly, there was uncontradicted testimony that many of the plaintiffs contacted lawyers about bringing an action against Allied shortly after the party. Contact with a lawyer is ordinarily evidence that a victim has already realized he may have a claim and begun to investigate the possibility of filing suit. See Lutheran Hospital, 482 A.2d at 27.4
On this record, we think a reasonable factfinder could reach only one conclusion: that the plaintiffs knew before January 10, 1981, of circumstances sufficient to have put them on notice that they might have a cause of action against Allied and the Supplier Defendants. Summary judgment on the limitations issue was therefore appropriate. See Celotex Corp. v. Catrett, 477 U.S. ----, ----, 106 S.Ct. 2548, 2555 (1986) ("Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.' ").5
AFFIRMED.
At oral argument before this court, Allied asserted that it was not a party to this appeal because these six plaintiffs had not filed a notice of appeal from the December 17 order granting it summary judgment on election-of-remedy grounds. This is incorrect. These plaintiffs filed a notice of appeal from the February 3, 1986 entry of Rule 54(b) "final judgment" against them, a judgment which was specifically entered in favor of Allied, as well as the Supplier Defendants. It is true that the plaintiffs have not challenged, in this appeal, the district court's ruling on the election-of-remedies issue, and that they have therefore waived the right to do so. This appeal thus could have no practical effect on Allied, even if we should reverse on the limitations issue, for the unchallenged ruling on election-of-remedies would suffice to support the judgment in its favor. But Allied remains, in technical terms, a "party" to this appeal
Under Erie Railroad v. Tompkins, 304 U.S. 64 (1938) and Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941), the district court in this diversity case was required to look to the choice-of-law rules of the state in which it sat--here, Maryland--to determine which statute of limitations to apply. Maryland applies the law of the forum to all matters of procedure. See Billingsley v. Lincoln Nat'l Bank, 320 A.2d 34, 35 n. 1 (Md.1974). Since statutes of limitation are generally considered to be "procedural" in nature, See Doughty v. Prettyman, 148 A.2d 438, 440 (Md.1959), Maryland's statute of limitations governs these tort claims
The plaintiffs argue that summary judgment was inappropriate here because two recent decision by the Maryland Court of Appeals establish that the issue of when a discovery rule plaintiff is "on notice" of his cause of action is virtually always one for the jury. This argument is fundamentally misplaced. First, the allocation of decisionmaking power between judge and jury in a federal court is generally controlled by federal rather than state law. See Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525 (1958). Second, and more fundamentally, we think decision here is controlled by Fed.R.Civ.P. 56, which directly addresses the specific question presented here, rather than by any rules--whether federal or state--governing the general allocation of decisionmaking power between judge and jury. See Hanna v. Plumer, 380 U.S. 460, 469-74 (1965) (when Federal Rule of Civil Procedure that is valid when measured against the standards contained in the Rules Enabling Act and the Constitution is directly on point, it must be applied by a federal court sitting in diversity regardless of any state laws to the contrary)
There was also evidence to suggest that some of the plaintiffs may have had reason to believe that their problems were caused by exposure to chemicals even before the Morgan party. Donald Morgan testified that he first noticed his numbness problems during the late 1970's; that he discovered Jimmy Hatfield suffered from a similar problem sometime during 1978 or 1979, and that it was this discovery which first led him to suspect that his health problems were associated with the chemicals with which he was working. Jack McGee testified that he noticed his numbness problems sometime around 1979 or 1980, that he consulted a doctor about them, that the doctor told him that he "ought to get out of the plant" and that he interpreted this to mean that the work he was performing for Allied was "probably dangerous." In addition, many of the plaintiffs testified that they were aware that several of their former co-workers of the Race Street plant had filed a tort action against Allied, its insurer and sixteen of its chemical suppliers in 1979 seeking recovery for injuries allegedly caused by exposure to chemicals at the plant
In view of this disposition, it is not necessary to address the Supplier Defendants' collateral estoppel contention advanced as an alternative basis for affirmance