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Grillo v. Speedrite Products5/22/2000
party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist.") (emphasis added).
In considering the relationship between temporary symptoms and the application of the discovery rule, we find some guidance in the decisions of other jurisdictions in toxic exposure and latent disease cases. New York's Court of Appeals interpreted its discovery rule to trigger the statute of limitations when the injured party discovers the primary condition on which the claim is based. In re: New York county DES Litigation (Wetherill v. Eli Lilly & Co.), 678 N.E.2d 474 (N.Y. 1997). In Wetherill, the court recognized that "there may be situations in which the claimant may experience early symptoms that are too isolated or inconsequential to trigger the running of the Statute of Limitations. . . ." Id. at 478, n.4.
In Johnson v. Exxon Corp., 685 N.Y.S.2d 530 (N.Y. App. Div. 1999), a New York appellate court addressed the application of the discovery rule, as construed in Wetherill, in the context of an action for work-related injuries allegedly sustained from toxic exposure. In Johnson, the claimant in that case had experienced occasional ailments over a two-year period as a result of exposure to chemicals. In a memorandum opinion, the court determined the claimant did not "discover" the condition on which the claim was based until an occurrence when she was "overcome by fumes while working and suffered body tremors, a feeling of intoxication, a shooting pain in her head, rashes on her face and neck, and nausea." Id. The court determined it was at this point, when claimant could not return to work, that the statute was triggered, as opposed to previous occurrences where plaintiff suffered isolated and inconsequential symptoms. See also O'Halloran v. 345 Park Co., 675 N.Y.S.2d 55 (N.Y. App. Div. 1998), leave to appeal dismissed, 707 N.E.2d 445 (1998) (The court concluded symptoms were too isolated or inconsequential to trigger statute, where claimant only missed two and a half days of work and did not seek medical attention or file a workers' compensation claim at that time.). Cf. Scheidel v. A.C. and S. Inc., 685 N.Y.S.2d 829 (N.Y. App. Div. 1999) (Applying the discovery rule in the context of a toxic tort, the court concluded that awareness of severe and persistent manifestations of the illness of asbestosis, including increasing shortness of breath, difficulty in walking any distance, and changing the nature of employment due to onset of physical limitations, constituted discovery.)
In Hildebrandt v. Allied Corp., 839 F.2d 396 (8th Cir. 1987), the federal appeals court considered the application of the Minnesota statute of limitations to a case of occupational exposure to toluene diisocyanate. The plaintiffs alleged they were exposed to the product for a number of years at their workplace and, as a result, developed permanent lung damage. The federal district court granted summary judgment to the defendants based upon the statute of limitations. In this ruling, the district court rejected the plaintiffs' argument that although they were aware of the injury in the form of sensitization to the toluene product, they did not know their respiratory injuries were or could be permanent. Id. at 398.
The Eighth Circuit Court of Appeals reversed. The court noted the evidence demonstrated the plaintiffs manifested symptoms after their initial exposure to the product but "the evidence is questionable whether they knew or should have known those symptoms were the manifestation of harm or impairment for which they now claim
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