Lincoln Elec. Co. v. McLemore
| Docket Number: | 2009-CA-00320-SCT Linked Case(s): 2009-CA-00320-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 12-09-2010 Opinion Author: Chandler, J. Holding: Reversed and rendered. |
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| Additional Case Information: |
Topic: Personal injury - Statute of limitations - Section 15-1-49(2) - Discovery of injury - Tolling of cause of action Judge(s) Concurring: Waller, C.J., Carlson, P.J., Dickinson, Randolph, Lamar and Pierce, JJ. Dissenting Author : Kitchens, J., Dissents With Separate Written Opinion Dissent Joined By : Graves, P.J. Procedural History: JNOV; Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 11-26-2008 Appealed from: COPIAH COUNTY CIRCUIT COURT Judge: Lamar Pickard Disposition: The matter proceeded to trial on November 6, 2008. A jury returned a verdict in favor of McLemore finding the Defendants liable and awarding McLemore $1,855,000. The Defendants filed post-trial motions for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. The trial court denied the motions. Case Number: 2005-0378 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Lincoln Electric Company and The ESAB Group, Inc. |
MICHAEL W. ULMER, JAMES JOSEPH CRONGEYER, JR., HUGH RUSTON COMLEY, JAMES MATTHEW TYRONE, MARK C. CARROLL, R. DAVID KAUFMAN, M. PATRICK MCDOWELL |
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| Appellee: | Stanley McLemore | JAMES D. SHANNON, JAMIE H. EDWARDS, JOE ROBERT NORTON, IV, JOHN E. HERRICK, ELIZABETH C. WARD |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Statute of limitations - Section 15-1-49(2) - Discovery of injury - Tolling of cause of action |
| Summary of the Facts: | This case involves the claims of Stanley McLemore, a welder, against Lincoln Electric Company and the ESAB Group, Inc., 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. McLemore filed a complaint and an amended complaint. The defendants filed a motion for summary judgment, claiming that McLemore had filed suit outside the three-year statute of limitations. The trial court denied the motion for summary judgment. A jury returned a verdict in favor of McLemore finding the defendants liable and awarding McLemore $1,855,000. The defendants appeal. |
| Summary of Opinion Analysis: | Defendants argue that McLemore knew that he had an injury on September 3, 2002, when Dr. Farina diagnosed him with Parkinsonism and informed him that his condition may have been related to his occupation as a welder. Accordingly, the defendants reason that McLemore should have filed suit on or before September 3, 2005, yet he filed this cause of action on November 14, 2005. McLemore, on the other hand, argues that his cause of action did not accrue until October 2005, when he was diagnosed with manganism. Pursuant to section 15-1-49(2), a plaintiff’s cause of action accrues at the point at which he discovered, or by reasonable diligence should have discovered, the injury. The plain language of section 15-1-49 supports an interpretation that the cause of action accrued upon discovery of the injury, not discovery of the injury and its cause. McLemore knew of his injury on September 3, 2002. At that time, Dr. Farina informed him of the correlation between his symptoms and welding. Section 15-1-49 does not require a plaintiff to know the cause of the injury before accrual of the cause of action. While the notice of this causal relationship generally is irrelevant to the accrual of the cause of action, it shows McLemore’s knowledge of his injury at that time. Furthermore, McLemore thereafter sought legal advice which resulted in an initial filing of a lawsuit in 2004 claiming “serious neurological injury” from exposure to manganese products. Consequently, McLemore’s argument that he had no knowledge of his injury and its relation to welding until his diagnosis of manganism fails. With regard to tolling, McLemore voluntarily dismissed his August 31, 2004, complaint on December 28, 2004. Because McLemore voluntarily dismissed the August 2004 complaint, his cause of action was not tolled. McLemore filed his next complaint, which was not served, on November 14, 2005. Assuming that the November 2005 complaint was filed and served on a defendant, the complaint still was filed outside the three-year statute of limitations which began to run on September 3, 2002, and ended September 3, 2005. The March 2006 amended complaint that was filed and served on the defendants, likewise, has no bearing on the analysis of this case because it also was filed outside the three-year limitations period. |
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