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Perkins v. Northeastern Log Homes5/9/1991
The U.S. District Court for the Western District of Kentucky has certified to the Kentucky Supreme Court the following Questions of Law at issue in the above-styled case:
"(1) whether KRS 413.135 violates Kentucky Constitution ยงยง 14, 54, 59, and/or 241; and
(2) whether KRS 413.135 applies to latent disease cases and, if so, whether the statute of limitations commences from the date the plaintiff knows or should have discovered the injury or disease."
For reasons that we will address, our answer to the first question is that the statute in question violates the Kentucky Constitution, and our answer to the second question is that KRS 413.135 does not nullify the "discovery rule" which applies "to tort actions for injury from latent disease caused by exposure to a harmful substance." Louisville Trust Co. v. Johns-Manville Products, Ky., 580 S.W.2d 497, 501 (1979).
The Certification from the U.S. District Court states the following facts:
"Plaintiffs Eloise and Dennis Perkins (the Perkins) filed their product liability action against defendants Northeastern Log Homes, Inc. (Northeastern), Roberts Consolidated Industries, Inc. (Roberts), and DAP, Inc. (DAP), on June 16, 1989. Defendants removed the case [from Jefferson Circuit Court to federal court] on July 10, 1989.
Plaintiffs purchased a log home kit from Northeastern on June 24, 1977. Northeastern manufactured the construction components of the log home. Roberts and DAP designed and manufactured "Woodlife," a product used to preserve the log home. The Perkins finished constructing their home in November 1978 and they lived in it until June 1989.
Eloise Perkins discovered she had non-Hodgkin's lymphoma around March 31, 1986. She alleges that her illness developed from continued exposure to Pentachlorophenol, which "Woodlife" contained."
Appellants' Complaint is an exhibit to the Brief filed by Roberts and DAP (hereinafter "Roberts"). It identifies Northeastern's product as a "Log Home Kit" which the appellants purchased and then assembled and constructed into a log home which they located in Floyds Knob, Indiana. It alleges: "beginning with the construction period in approximately August, 1977 through June 9, 1989, Plaintiffs were exposed in their log home, built from the Northeastern kit, to toxic concentrations of the chemical, technical-grade Pentachlorophenol, which was an active ingredient in the "Woodlife' . . ."; the "log home is unfit for human habitation . . . as a result of said toxic contamination"; and a cause of action for strict liability "by reason of defects in the product . . . rendering the product unreasonably dangerous," and, separately, for "negligent failure to design, negligent failure to properly manufacture and assemble the product . . ., failure to adequately warn and instruct concerning the use and failure to adequately test and inspect the product."
Appellants have supplemented their Brief with affidavits from a medical expert and their attorney, stating in substance that Eloise Perkins suffers from a non-Hodgkins' lymphoma, a cancer caused by exposure to Pentachlorophenol, with the "appearance of symptoms . . . in March of 1986," that her first notice of any possible connection between her cancer and the log home kit in question occurred in February 1989, the first medical confirmation occurred in March 1989, and the suit was filed on June 16, 1989. We accept these claims along with the facts stated in the Certification as a factual premise in addressing the underlying legal issues.
I. DOES KRS
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