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Ratcliff v. American Honda Motor Co. Inc.

United States District Court, M.D. North Carolina

September 27, 2019

JODY RATCLIFF, Plaintiff,
v.
AMERICAN HONDA MOTOR CO. INC., et al.5 Defendants.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOI ELIZABETH PEAKE, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on a Motion for Summary Judgment on Statute of Limitations [Doc. #475] by Defendants Ford Motor Company (Ford), Brenntag Specialties, Inc. (BSI), and Whittaker, Clark & Daniels Inc. (WCD), and a Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56 [Doc. #468] by Defendant Honeywell International, Inc.[1]

         With respect to the statute of limitations defense, Defendants contend that the three-year statute of limitations began to run on May 5, 2005, when Plaintiff Jody Ratcliff was first diagnosed with a form of mesothelioma, and that the statute of limitations therefore expired several years before she filed the March 1, 2017 Complaint in this case. Plaintiff argues that the statute of limitations did not accrue until April 2014, which is when she alleges she knew or had reason to know that her disease had progressed to another sub-type of mesothelioma. As discussed below, the Court concludes that there are no genuine issues of material fact as to the statute of limitations, and there is no evidence on which a jury could find that Plaintiffs' claims in the present case are timely. Therefore, the Court will recommend that the Statute of Limitations Motion for Summary Judgment be granted and that Defendant Honeywell's Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56 be granted as it relates Honeywell's statute of limitations defense.

         The Court notes that there are also several other pending Motions: Defendant Ford has filed Daubert Motions to exclude the expert opinion testimony of Dr. David Rosner, Dr. Carlos Bedrossian, and Dr. Arnold Brody, and a related Motion for Summary Judgment Pursuant to Rule 56 [Doc. #461, #467, and #471]. Defendant Honeywell has filed a Daubert Motion to Exclude the Expert Opinion Testimony of Dr. Carlos Bedrossian [Doc. #463]. Defendant WCD has filed Daubert Motions to Exclude Specific Causation Opinions and Cumulative Exposure Opinion as Evidence of Causation and a related Motion for Summary Judgment [Doc. #465, #472, and #477]. Defendant BSI has filed a Motion for Partial Summary Judgment and a Motion to Bifurcate [Doc. #486 and #491]. As a result of this Court's recommendation that summary judgment be granted on the statute of limitations, the Court will recommend that these remaining pending Motions be terminated as moot.

         I. FACTS, CLAIMS. AND PROCEDURAL HISTORY

         In this case, Plaintiff Jody Ratcliff filed a twelve-count Complaint on March 1, 2017, against sixty-two (62) defendants alleging injury caused by exposure to asbestos-containing products. (Compl. [Doc. #1].) Ms. Ratcliff asserts claims of negligence, gross negligence, inadequate design, breach of warranty, product liability, premises liability, fraud/false representation, and conspiracy against a No. of automotive repair shops, retailers, and businesses in the automotive or beauty retail industry. The Complaint divides the Defendants into various groups: the "Friction Defendants, ” the "Talc Defendants, ” the "Retailer Defendants, ” the "Talc Product Retailer Defendants, ” and the "Automobile Repair Defendants." Most of the Defendants have settled or otherwise been dismissed, and the remaining Defendants are Ford, BSI, WCD, and Honeywell.[2]

         As the basis for her claims, Plaintiff contends that her father, Oden Ratcliff, worked as a tool salesman, and that during the summers of 1987-1989, she visited automotive garages and dealerships alongside her father, that she was a bystander in the garages while brake work was performed, and that as a result she was exposed to dust from asbestos-containing brakes and related products. Plaintiff also contends that between 1977 and 2016, she used talc . products that allegedly contained asbestos, including baby powder, deodorant, and makeup.

         Plaintiff began experiencing abdominal symptoms in 2004 and underwent various imaging and testing, including a diagnostic laparoscopic procedure in 2005. As a result of the biopsy, she was diagnosed with well-differentiated papillary mesothelioma (“WDPM") on May 5, 2005, by Dr. Jason Pereira at Vanderbilt University Medical Center. In his deposition in this case, Dr. Pereira confirmed that Plaintiff had "a form of cancer, " and explained that mesothelioma is "a malignancy of the lining of the abdomen or the thorax, ” that in Plaintiffs case the malignancy was of the peritoneal cavity (the lining of the abdomen), and that WDPM is "one variant" of mesothelioma. (Pereira Dep. at 53-54, 88-89 [Doc. #476-2 at 15, 23-24] .)[3]

         Following her diagnosis, Ms. Ratcliff sought a second opinion from specialists at MD Anderson Cancer Center. (MD Anderson Rep. [Doc. #518-3].) The MD Anderson Report dated June 20, 2005, reflects that "[i]n most of the area, the tumor [had] a pattern similar to a well-differentiated papillary mesothelioma, " but that "invasion into the adipose tissue is seen" with diagnosis of "Malignant Mesothelioma, Epithelial Type." (MD Anderson Rep. [Doc. #518-3].) In her deposition, Plaintiff testified that she did not receive a copy of this Report, but that she received a call from MD Anderson that confirmed her diagnosis of WDPM. (J. Ratcliff Dep. Dec. 13, 2016 at 196-198; Feb. 14, 2017 at 236 [Doc. #476-3 at 52-53, 311].)

         Dr. Pereira referred Plaintiff to an oncologist, Dr. Carbone. (Pereira Dep. [Doc. #476-2] at 62.) Plaintiff confirmed that she saw Dr. Carbone on May 26, 2005, and that Dr. Carbone said that it was "okay to manage this [by] just following it with CAT scans [and] if or when symptoms come back, then treating it at that point, " and that at some point she would need "treatment or surgery." (J. Ratcliff Dep. Feb. 15, 2017 at 325-27 [Doc. #476-3 at 243-44].) Plaintiff also testified that she remembered Dr. Carbone saying, "welcome to the league of cancer survivors." Q. Ratcliff Dep. Feb. 15, 2017 at 325 [Doc. #476-3 at 243].)

         At the time of her diagnosis in 2005, Ms. Ratcliff worked at Vanderbilt University Medical Center as an ICU Nurse. (J. Ratcliff Dep. Dec. 13, 2016 at 33 [Doc. #476-3 at 11].) Following the diagnosis, Plaintiff performed research regarding her condition, using the internet and publication databases that she had access to as part of her position as a nurse. Plaintiff recalled that researching WDPM led her to "general mesothelioma sites that had discussion about asbestos and causes." (J. Ratcliff Dep. Dec. 14, 2016 at 284 [Doc. #476-3 at 76].) She stated that she conducted an internet search "to try to find information about WDPM' and that "mesothelioma and asbestos" was "one of the bigger hits." (See J. Ratcliff Dep. Dec. 20, 2016 at 566 [Doc. #476-3 at 148].) Plaintiff also recalled that she was directed to a telephone No. during her research, that she called the No. to get more information about her condition, and that the No. directed her to an attorney handling asbestos-exposure mesothelioma cases. (See J. Ratcliff Dep. Dec. 14, 2016 at 288; Dec. 20, 2016 at 567-568 [Doc. #476-3 at 77, 149].) Plaintiff discussed her case with someone at the number, but according to Plaintiff, they told her that she did not have a case. (Id.)

         Ms. Ratcliff moved to North Carolina soon thereafter, and was followed with frequent CT scans at Duke Medical Center. She later moved to Seattle, Washington. In 2009 and 2010, she began to experience more symptoms, including fluid in her abdomen (ascites) and an increase in the tumor bulk in her abdomen. Sometime in 2009 or 2010, she contacted another attorney to discuss WDPM and whether there was a cause of action for asbestos exposure. (J. Ratcliff Dep. Dec. 13, 2016 at 103-104; Dec. 23, 2016 at 569; Feb. 14, 2017 at 244-45 [Doc. #476-3 at 29, 149, 313].) However, according to Plaintiff, that attorney also told her that she did not have a case. (Id.)

         In April 2010, Ms. Ratcliff went to see Dr. Thomas Malpass, an oncologist at Virginia Mason Medical Center (“VMMC") in Seattle. Dr. Malpass' Report reflects a diagnosis of "Indolent primary peritoneal malignancy (well differentiated papillary mesothelioma)." (Levine Dep. Ex. 3 [Doc. #476-5 at 32-34].) Dr. Malpass referred Ms. Ratcliff to Dr. Edward Levine at Wake Forest Baptist Medical Center. (See Levine Dep. Ex. 2 [Doc. #476-5 at 28-31].) At the initial evaluation on October 15, 2010, Dr. Levine noted that Ms. Ratcliff was being seen for "evaluation of peritoneal mesothelioma with malignant ascites.[4]" (Levine Dep. Ex. 2 [Doc. #476-5 at 28-30].) Dr. Levine noted that Ms. Ratliff had been diagnosed with peritoneal mesothelioma in 2005, had been followed with frequent imaging, had been relatively asymptomatic until early in 2010 when she started developing abdominal distention, had proceeded with procedures (paracentesis) in June and September 2010 to remove fluid from her abdomen, was continuing to experience symptoms, and was now inquiring about cytoreductive surgery[5] and intraperitoneal chemotherapy.[6] (Levine Dep. Ex. 2 [Doc. #476-5 at 28-30].) Dr. Levine confirmed a diagnosis of peritoneal mesothelioma and performed cytoreductive surgery with intraperitoneal chemotherapy in November 2010. (Levine Dep. at 37, 43-44 [Doc. #476-5 at 12, 14]; Operative Report, Levine Dep. Ex. 6 [Doc. #476-5 at 38-41].) The surgical pathology report following the November 2010 surgery reflects a diagnosis of well-differentiated papillary mesothelioma (Pl. Resp. Ex. 6 [Doc. #518-6 at 3]), and the cytology report of the fluid reflects "malignant mesothelioma" (Levine Dep. Ex. 7 [Doc. #476-5 at 42].) Ms. Ratcliff attended a follow-up appointment with Dr. Levine on December 2, 2010, and was directed to return for regular follow-up. (Levine Dep. at 44-45 and Ex. 8 [Doc. #476-5 at 14, 43].) In her deposition, Mr. Ratcliff testified that when she had the 2010 surgery, Dr. Levine told her that she "had a lot of tumor bulk, and that he thought maybe I had about a year to live." (J. Ratcliff Dep. Dec. 20, 2016 at 572 Doc. #476-3 at 150].)

         Ms. Ratcliff continued to be seen by Dr. Malpass at VMMC in Seattle, and a record from VMMC reflects that Ms. Ratcliff was seen on November 8, 2013, with "well differentiated papillary mesothelioma status post radical debulking and intraperitoneal cisplatin done in November 2010, now with progressive and symptomatic disease." (Malpass Record [Doc. #476-5 at 46].) Dr. Malpass sent the record to Dr. Levine at Wake Forest to discuss whether a second surgery should be performed. Dr. Levine met with Ms. Ratcliff on December 27, 2013, and scheduled the second surgery. On March 3, 2014, Ms. Ratcliff underwent a second cytoreductive surgery with hyperthermic intraperitoneal chemotherapy. The surgical pathology report for that surgery reflects "Epithelioid mesothelioma." (Levine Dep. Ex. 14 [Doc. #476-5 at 60].) In his deposition, Dr. Levine explained that epithelioid mesothelioma is a "subtype of peritoneal mesothelioma" that is "[m]ore aggressive than the well-differentiated papillary type" but "is still peritoneal mesothelioma." (Levine Dep. at 57-58 Doc. #476-5 at 17-18].)

         Ms. Ratcliff was then referred to Dr. Hedy Kindle* of the University of Chicago Medical Center. The April 30, 2014 progress note by Dr. Kindler reflects that Ms. Ratcliff had "recurrent peritoneal epithelial mesothelioma, previously characterized as well differentiated papillary mesothelioma (WDPM) now characterized as epithelioid type..." (Kindler Diagnosis History [Doc. #518-7 at 5].) Ms. Ratcliff returned to VMMC's outpatient clinic on May 28, 2014. At this time, Dr. Gurkamal Chatta from VMMC noted that Dr. Kindler's review of the pathology from Ms. Ratcliff s March 3, 2014 surgery revealed "transitional malignancy from well-differentiated papillary mesothelioma to an epithelioid mesothelioma." (See Pl. Resp, Ex. 9 [Doc. #518-9 at 2].)

         On July 26, 2016, Ms. Ratcliff filed suit in Washington state court for damages connected to her diagnosis of mesothelioma (No. 16-2-18128-7 SEA). Plaintiff later elected to take a voluntary dismissal of that case. (Defs. Reply [Doc. #542] at 3 n.2). Plaintiff filed her initial Complaint in the instant matter on March 1, 2017. In the present Motions for Summary Judgment [Doc. #468 & 475], the remaining Defendants contend, inter alia, that Plaintiffs Complaint was filed after the applicable statute of limitations period had expired.

         II. STANDARD OF REVIEW

         Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A genuine issue of fact exists if the evidence presented could lead a reasonable fact-finder to return a verdict in favor of the non-moving party. Id. at 255. The party seeking summary judgment bears the initial burden of coming forward and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett 477 U.S. 317, 323 (1986). Once the moving patty has met its burden, the nonmoving party must then present specific facts demonstrating a genuine issue of material fact which requires trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         When making a summary judgment determination, the court must view the evidence and draw all reasonable inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 247. However, the party opposing summary judgment may not rest on mere allegations or denials, and the court need not consider "unsupported assertions" or "self-serving opinions without objective corroboration." Evans v. Techs. Applications & Serv. Co..80 F.3d 954, 962 (4th Or. 1996); see also Anderson. 477 U.S. at 248-49. Moreover, a mere scintilla of evidence supporting the non-moving party's case is ...


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