By Jenna Marie Stupar on May 2, 2016

On February 18, 2016, a Cook County trial court denied Defendant Union Carbide Corporation’s Motion for Summary Judgment in Contreras v. Georgia Pacific et al. (No 13 L 6487).  The court held that there was a genuine issue of material fact as to when the Statute of Limitations began to run and refused to grant the motion.

Plaintiff Anthony Contreras was diagnosed with stage four lung cancer on November 10, 2007. On March 24, 2010, Contreras filed a personal injury action.  The original action was voluntarily dismissed on June 20, 2011 and re-filed in Madison County on April 24, 2012.  On April 4, 2013, the case was transferred to Cook County.

As part of written discovery, Plaintiff answered Defendants’ Joint First Set of Interrogatories. In response to Defendants’ question “[s]tate when and how you first became aware of any possible connection between your alleged exposure to asbestos or other materials and your physical condition[,]” Plaintiff stated “Plaintiff became aware shortly after being diagnosed with lung cancer on 11/10/2007.”

In Plaintiff’s discovery deposition, Plaintiff stated that he researched lung cancer on the internet sometime after his diagnosis, and that his search resulted in a list of potential causes, including asbestos. Plaintiff also stated he did not know at that time that asbestos was the cause of his injury and that his doctors did not tell him the cause, even when he asked.

Illinois follows the discovery rule in asbestos cases for statute of limitations purposes. According to the discovery rule, “a cause of action accrues when a person knows or should know, through reasonable investigation, of the injury and its wrongful causation.” Healy v. Owens-Illinois, Inc., 359 Ill. App. 3d 186, 191 (1st Dist. 2005).  The standard is not actual knowledge; the plaintiff must merely possess sufficient knowledge of the injury and its cause “that would place a reasonable person on notice to ascertain its source and whether legally actionable conduct was involved.” Healy, at 194.

Therefore, the lynchpin of both Plaintiff’s and Defendant’s argument was when Plaintiff knew, or when he should have known, that asbestos could have caused his lung cancer.[1]  And the key inquiry thus became whether Plaintiff’s internet search, which occurred “shortly” after his diagnosis, was sufficient to trigger the statute of limitations.

Defendant argued that the internet search gave Plaintiff sufficient knowledge that his disease was potentially wrongfully caused and, as such, the statute of limitations began to run at that time. The internet search listed asbestos as a potential cause of Plaintiff’s disease and thus put him on notice.  Because the law does not require actual or perfect knowledge, merely sufficient knowledge as to cause a reasonable person to inquire further, it does not matter that Plaintiff did not actually know that asbestos caused his disease when he asked his doctor.  Defendant relied heavily on Healy v. Owen-Illinois, Inc., in which the court found that the plaintiff should have known that his injury may be wrongfully caused and ruled that the statute of limitations had expired.

On the other hand, Plaintiff argued that a general internet search could not impose such an obligation on a plaintiff. Asbestos was one of several potential causes listed, and Plaintiff did not and could not know that asbestos was the cause of his lung cancer.  Plaintiff further argued that he repeatedly asked his doctors the cause of his cancer and did not get an answer.  Plaintiff argued that Healy was distinguishable in this case, as the Healy plaintiff had a family history of diseases caused by asbestos.

Ultimately, the Court accepted Plaintiff’s arguments and denied Union Carbide’s motion for summary judgment. The Court found that there was a “significant dispute” as to when Plaintiff discovered his injury was wrongfully caused. It noted that asbestos was “just one of the possible causes listed” in the internet search.  Additionally, the Court reasoned that Plaintiff repeatedly asked his doctors the cause of his cancer and did not get an answer.  The Court rejected Defendant’s reliance on Healy, finding the case distinguishable because of the plaintiff’s family history.  The Court concluded, “[i]t is unknown as to when Plaintiff knew of his injury and the statute commenced” and as such, a genuine issue of material fact existed such that summary judgment was not proper.

Union Carbide has filed a motion to reconsider the order denying summary judgment, and oral argument on the motion is currently scheduled to be heard on Tuesday, May 3, 2016.

[1] Illinois’ statute of limitations for personal injuries is two years, so if Plaintiff knew any time before March 24, 2008, his claim would be barred by the statute of limitations because he filed his lawsuit on March 24, 2010.