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Kaeding v. Grace6/23/1998
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln, The Honorable Michael C. Prezeau, Judge presiding.
Submitted on Briefs: April 2, 1998
Appellants Donald M. and Louise E. Kaeding (the Kaedings) appeal from the order of the Montana Nineteenth Judicial District Court, Lincoln County, granting summary judgment in favor of Respondent W.R. Grace & Company (W.R. Grace). We affirm.
We restate the issues on appeal as follows:
1. Did the District Court err in holding that the Kaedings' claims were not filed within the statute of limitations and in granting summary judgment for W.R. Grace?
2. Did the District Court err in considering the September 1, 1992 letter from Dr. Alan Whitehouse (Dr. Whitehouse) to the Kaedings' attorney?
Factual and Procedural Background
From 1962-64, Donald Kaeding (Kaeding) worked in a vermiculite mine and mill located near Libby, Montana. Vermiculite is a silicate mineral used in insulation. W.R. Grace owned and operated the mine during Kaeding's tenure there and until its closure in 1990. The Kaedings allege that well before 1962, W.R. Grace was aware that the vermiculite dust contained asbestos and that asbestos was a serious health hazard. The Kaedings contend that W.R. Grace did not warn its employees that the dust in its facility could be harmful. W.R. Grace argues that it provided the employees with respirators to protect them from the dusty conditions.
Over the past thirty years, Kaeding has suffered lung- and heart-related ailments. He has visited many doctors and heard various medical opinions and diagnoses. In 1967, a radiologist noted Kaeding had "old fibrosis" in his lungs, which "suggests the possibility of asbestosis with fibrosis and scarring." In about 1969, Kaeding was diagnosed with thyroid toxicosis (Grave's disease) and with tuberculosis (TB) in 1971. From 1973 to 1995, several x-rays of Kaeding's lungs revealed scarring from the TB. In 1983, Kaeding was examined by Dr. Huffman in Libby, Montana and told he had "chronic lung disease secondary to pneumonia and smoking. . . ." Dr. Huffman examined Kaeding again in 1985 and diagnosed him with "emphysema from history of smoking and working at W.R. Grace."
In 1983, W.R. Grace conducted breathing tests of current and former employees of the vermiculite mine. At that time, Kaeding learned that the vermiculite dust he was exposed to while employed by W.R. Grace contained asbestos. In January 1985, W.R. Grace mailed Kaeding the results of the radiological tests it had conducted. The report noted that Kaeding's "pleural placquing [plaque on the membrane lining the lungs and chest cavity] is most compatible with asbestosis but the hilar retraction would be more typical of silicosis."
Kaeding's brother, who had also worked at W.R. Grace's facility, was diagnosed with asbestosis in 1990. In 1991, during an examination at the Veteran's Administration (VA) Hospital in Spokane, Kaeding told Dr. Howard Platter that he had worked in W.R. Grace's facility for two years and that the facility had been shut down because a number of employees had developed pulmonary troubles. Kaeding also told Dr. Platter about his brother's employment with W.R. Grace and his asbestosis. In Kaeding's radiology diagnostic report, Dr. Platter reported what Kaeding had told him and noted that the "question in this case is whether the present findings could involve an unusual case of asbestosis."
Kaeding's medical records also contain a "progress note" dated October 22, 1991 written by a nurse at the mobile VA Hospital in Libby. This n
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