Link to PDF file
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2005 Term
JOHN EDWARD GOODWIN,
Plaintiff Below, Appellant
BAYER CORPORATION, ET AL.,
Defendants Below, Appellees
Appeal from the Circuit Court of Kanawha County
Honorable Jennifer Bailey Walker, Judge
Civil Action No. 01-C-3112
Submitted: September 14, 2005
Filed: December 1, 2005
| Vincent Trivelli, Esq.|
Stuart Calwell, Esq.
The Calwell Practice, PLLC
Charleston, West Virginia
Attorneys for Appellant
April Morgan Hincy, Esq.
Timothy S. Coon, Esq.
Eckert Seamans Cherin & Mellott, PLLC
Attorneys for Appellee Bayer Corp.
| Thomas V. Flaherty, Esq.
Tammy R. Harvey, Esq.
Flaherty, Sensabaugh & Bonasso
Charleston, West Virginia
Attorneys for Appellee Rust-Oleum.
James S. Crockett, Jr., Esq.
Beth A. Rauer, Esq.
Spilman Thomas & Battle, PLLC
Charleston, West Virginia
Attorneys for Appellee E.I. DuPont de Nemours and Company
| Melvin F. O'Brien, Esq.|
Christopher D. Stofko, Esq.
James R. Miller, Esq.
Dickie, McCamey & Chilcote
Attorneys for Appellee PPG Industries, Inc., the Sherwin-Williams Company
| Randall L. Trautwein, Esq.
Lamp, O'Dell, Bartram, Levy & Trautwein, PLLC
Huntington, West Virginia
Attorney for Appellee Refinishing Material Specialties, Inc.
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE ALBRIGHT dissents and reserves the right to file a separate opinion.
JUSTICE STARCHER dissents and reserves the right to file a separate opinion.
circuit court's entry of summary judgment is reviewed de novo. Syl.
Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
motion for summary judgment should be granted only when it is clear that there
is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law. Syl. Pt. 3, Aetna Cas. & Sur.
Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963);
Syl. Pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d
the moving party makes a properly supported motion for summary judgment and can
show by affirmative evidence that there is no genuine issue of a material fact,
the burden of production shifts to the nonmoving party who must either (1) rehabilitate
the evidence attacked by the moving party, (2) produce additional evidence showing
the existence of a genuine issue for trial, or (3) submit an affidavit explaining
why further discovery is necessary as provided in Rule 56(f) of the West Virginia
Rules of Civil Procedure. Syl. Pt. 3, Williams v. Precision Coil, Inc.,
194 W.Va. 52, 459 S.E.2d 329 (1995).
tort actions, unless there is a clear statutory prohibition to its application,
under the discovery rule the statute of limitations begins to run when the plaintiff
knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff
has been injured, (2) the identity of the entity who owed the plaintiff a duty
to act with due care, and who may
have engaged in conduct that breached that duty, and (3) that the conduct of
that entity has a causal relation to the injury. Syl. Pt. 4, Gaither
v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997).
products liability cases, the statute of limitations begins to run when the plaintiff
knows, or by the exercise of reasonable diligence should know, (1) that he has
been injured, (2) the identity of the maker of the product, and (3) that the
product had a causal relation to his injury. Syl. Pt. 1, Hickman v.
Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987); Syl. Pt. 1, Cecil v. Airco,
Inc., 187 W.Va. 190, 416 S.E.2d 728 (1992).
a plaintiff sustains a noticeable personal injury from a traumatic event, the
statute of limitations begins to run and is not tolled because there may also
be a latent injury arising from the same traumatic event. Syl. Pt. 3, Jones
v. Trustees of Bethany College, 177 W.Va. 168, 351 S.E.2d 183 (1986).
case is before the Court on appeal from the August 25, 2004, Order of the Circuit
Court of Kanawha County granting summary judgment in favor of the Appellees and
finding that there was no genuine issue of material fact as to whether Appellant
had filed the underlying action outside of the period allowed by the statute
of limitations. Finding that Appellant had filed his complaint outside of the
period allowed by the statute of limitations, the court dismissed the complaint
Court has before it the petition for appeal, the response, the briefs of the
parties, and all matters of record. Following the arguments of the parties and
a review of the record herein, this Court finds that existing case law supports
the position of Appellees over that of Appellant. Accordingly, this Court affirms
the August 25, 2004, Order of the circuit court granting summary judgment in
favor of Appellees.
1969 and 1991, Appellant Goodwin worked at various businesses_ including that
of his father_as an auto body and trim painter, a foreman, a welder, and a body
man. For the last four to five years of his working life and after his
retirement, Goodwin ran the family business until its close in 1991. (See
Goodwin never worked again in any capacity because
he just didn't want to work.
in 1988, three years before the closure of his business, Goodwin noted a funny
taste in his mouth as well as tightness in his chest and trouble breathing while
painting. At some point in or around that same time, Goodwin purchased and religiously used
an air-supplied respirator, which seemed to remedy his symptoms. In 1997, six
years after Goodwin himself stopped painting, Goodwin was again exposed to paint
while watching his son-in-law and a friend paint a bus outside of Goodwin's former
shop. Goodwin was not wearing a respirator at the time and began to again experience
shortness of breath and chest pains.
3, 1997, Goodwin went to see his family physician, Dr. Victor Selvaraj, in regard
to his difficulty in breathing. At that time, Dr. Selvaraj noted in his medical
records that Goodwin has been painting causing breathing problems. Dr.
Selvaraj diagnosed Goodwin with chronic obstructive pulmonary disease and referred
Goodwin for further tests. Those respiratory function tests revealed that Goodwin
suffered from asthma but did not otherwise distinguish that Goodwin's asthma
was associated with his work with auto body paint products. Nonetheless, Goodwin,
according to his own testimony, associated
his breathing problems with exposure to paint. In his March 22, 2004 deposition,
Goodwin's testimony was as follows:
did you first start thinking that the breathing problems you were having were
related to paint exposure?
A: When I went to the doctor
Dr. Selvaraj tell you that he thought that your breathing problems were related
to paint exposure?
why did you make that connection in '97?
told him that I had been in paint, and he didn't say anything. He just started
treating me for breathing.
you felt it was related to paint?
I thought it was.
Dr. Selvaraj tell you that he thought it was related to paint?
any doctor told you they thought your breathing problems were related to paint
do you believe your breathing problems are related to paint exposure?
I got _ like four or five times before that, I'd had that problem and it went
away. This time it didn't go away. It never left.
He went on later in that same deposition to explain that his belief that his
breathing problems were caused by paint began as early as 1988:
any time in those last three or four years when you were operating your garage,
if you had an over-all paint job, you had breathing problems, correct?
I did one, yes.
you believed it was the paint that was causing those problems; is that right?
that a yes?
Nonetheless, subsequent examinations of Goodwin by Dr. Selvaraj in March and
August of 1998 again showed test results within normal limits.
around 1998, Goodwin contacted the Law Offices of Stuart Calwell (now The Calwell
Practice) in regard to an advertisement the law firm was running seeking clients
who worked around paint and who had experienced breathing problems. On or about
21, 1998, the Law Offices of Stuart Calwell filed an application before the
Social Security Administration on Goodwin's behalf seeking supplemental security
income benefits based on a history of hernias and asthma, which was subsequently
denied. (See footnote 2)
June 14, 1999, acting on a release prepared by the Law Offices of Stuart Calwell,
Dr. Selvaraj forwarded Goodwin's medical records to Calwell's office. Those
medical records included Dr. Selvaraj's diagnosis and his note that Goodwin
had been painting causing breathing problems.
attorneys referred him to Dr. Roger A. Abrahams, who on November 8, 1999, submitted
a letter to the Law Offices of Stuart Calwell expressing his belief that Goodwin
suffered from occupational asthma as a result of exposure to isocyanate-containing
paint during his employment in the auto body repair business. (See
Distinguishing the medical histories of Dr. Selvaraj
and his own admitted beliefs about the relationship between paint exposure and
his breathing problems, Goodwin asserts that Dr.
Abrahams was the first doctor to actually diagnose Goodwin with occupational asthma
related to his work with paint. (See
on October 22, 2001, the Law Offices of Stuart Calwell filed a complaint on behalf
of Goodwin alleging negligence on the part of the manufacturing defendants, failure
to warn on the part of the manufacturing defendants, breach of warranty on the
part of the manufacturing defendants, strict liability of the manufacturing defendants,
and conspiracy on the part of certain manufacturing defendants. (See
Goodwin's complaint sought both compensatory and punitive
27, 2004, the defendants jointly moved for summary judgment, alleging that Goodwin's
complaint was filed outside the period of time allowed by the statute of limitations.
The defendants argued that Goodwin's action was filed (a) over four years after
he had first informed his family doctor of his breathing problems and his own
belief about the cause of his breathing problems, and (b) two years and four
months after Goodwin sought and engaged lawyers with an advertised expertise
in paint exposure cases and had his medical records delivered to them. Goodwin
responded that he could not have known nor reasonably should have known about
his paint-related condition until his diagnosis by Dr.
Abrahams in November 1999. Goodwin also raised the issue of claimed neuropsychological
damage from the exposures he had to paint of which he was unaware until 2003. (See
court conducted a hearing on the motion for summary judgment on July 16, 2004,
following which the court granted judgment in favor of the defendant. The circuit
court found that Goodwin knew or should have known (a) that he was injured, (b)
who made the products which injured him, and (c) the causal relationship between
those products and his injury well before October 22, 1999. Therefore,
the court found that Goodwin's complaint was filed outside of the statute of
limitations. Goodwin appeals the court's order granting summary judgment.
STANDARD OF REVIEW
Court has held that [a] circuit court's entry of summary judgment is
reviewed de novo. Syl. Pt. 1, Painter v. Peavy, 192 W.Va.
189, 451 S.E.2d 755 (1994). Summary judgment should be granted only if the
record demonstrates that there is no
genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law. West Virginia Rules of Civil Procedure,
Rule 56(c). To that end, this Court has held that [a] motion for summary
judgment should be granted only when it is clear that there is no genuine issue
of fact to be tried and inquiry concerning the facts is not desirable to clarify
the application of the law. Syl. Pt. 3, Aetna Cas. & Sur. Co.
v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963);
Syl. Pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d
329 (1995). If the moving party makes a properly supported motion for
summary judgment and can show by affirmative evidence that there is no genuine
issue of a material fact, the burden of production shifts to the nonmoving
party who must either (1) rehabilitate the evidence attacked by the moving
party, (2) produce additional evidence showing the existence of a genuine issue
for trial, or (3) submit an affidavit explaining why further discovery is necessary
as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure. Williams at
Syl. Pt. 3. With that standard in mind, we turn now to a discussion of the
facts as they apply to the law in this case.
the issue at the heart of the motion for summary judgment was whether Goodwin
filed his complaint outside the time allowed by the statute of limitations.
Goodwin cites Gaither v. City Hospital, Inc., 199 W.Va. 706, 714-715
487 S.E.2d 901, 909-910 (1997), to argue that [i]n a great majority of
cases, the issue of whether a claim is barred by
the statute of limitations is a question of fact for the jury, not an
issue which should be disposed of on summary judgment. Goodwin further draws
on Syllabus Point 3 of Stemple v. Dobson, 184 W.Va. 317, 400 S.E.2d
561 (1990), in which this Court stated:
a cause of action is based upon tort or on a claim of fraud, the statute of limitations
does not begin to run until the injured person knows, or by the exercise of reasonable
diligence should know, of the nature of his injury, and determining that point
in time is a question of fact to be answered by the jury.
However, the defendants point out that this Court has, on more than one occasion,
affirmed summary judgment in cases where the undisputed facts establish that
the suit was time-barred pursuant to the applicable statute of limitations.
See e.g., Jones v. Aburahma, 215 W.Va. 521, 600 S.E.2d 233 (2004); Thompson
v. Branches-Domestic Violence Shelter of Huntington, 207 W.Va. 479, 534
S.E.2d 33 (2000); Stephens v. West Virginia College of Graduate Studies,
203 W.Va. 81, 506 S.E.2d 336 (1998); Vorholt v. One Valley Bank, 201
W.Va. 480, 498 S.E.2d 241 (1997). This Court agrees with the defendants and
with the Court's earlier decisions that summary judgment can and should be
granted on the basis of an applicable statute of limitations when no genuine
issue of material fact exists as to whether the statute of limitations has
been violated. Here, the material facts are not in general dispute. Thus, where,
as here, the issue is one of law, a consideration of summary judgment is appropriate.
of limitations applicable to this particular case is set forth in West Virginia
Code § 55-2-12, which states that [e]very personal action for which
no limitation is otherwise prescribed shall be brought...within two years next
after the right to bring the same shall have accrued if it be for damages for
personal injuries. Certainly, there are instances when the tolling of the
statute of limitations becomes a question of fact, such as when a plaintiff may
not be aware of his or her injury or may not be aware of the cause of a known
injury. Accordingly, this Court developed the so-called discovery rule, which
is illustrated in Syllabus Point 4 of Gaither v. City Hospital, Inc.,
199 W.Va. 706, 487 S.E.2d 901 (1997), wherein we held that [i]n tort actions,
unless there is a clear statutory prohibition to its application, under the discovery
rule the statute of limitations begins to run when the plaintiff knows, or by
the exercise of reasonable diligence, should know (1) that the plaintiff has
been injured, (2) the identity of the entity who owed the plaintiff a duty to
act with due care, and who may have engaged in conduct that breached that duty,
and (3) that the conduct of that entity has a causal relation to the injury. More
particularly, [i]n products liability cases, the statute of limitations
begins to run when the plaintiff knows, or by the exercise of reasonable diligence
should know, (1) that he has been injured, (2) the identity of the maker of the
product, and (3) that the product had a causal relation to his injury. Syl.
Pt. 1, Hickman v. Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987); Syl. Pt.
1, Cecil v. Airco, Inc., 187 W.Va. 190, 416 S.E.2d 728 (1992).
Goodwin's testimony provides an unrebutted record of when Goodwin first believed
he had been injured and what had caused him this harm. (See
Goodwin, however, argues that he should not be considered
to be aware of his injury (occupational asthma) until November 8,
1999, when he received a report of his diagnosis from Dr. Abrahams. The defendants,
however, argue that Goodwin was aware of his injury at least as early as 1997,
and that fact is established by his testimony and the treatment he first sought
from Dr. Selvaraj. (See footnote
Goodwin's contentions are not persuasive in view of the facts
in this case and our prior decisions. His own testimony leaves nothing to question.
Goodwin testified that by 1997 he knew he had been injured by his exposure to
paint. Furthermore, all of his actions confirm that conclusion.
would have this Court determine that the statute of limitations did not begin
to run until Dr. Abrahams made a diagnosis of occupational asthma in November
1999. However, Goodwin himself acknowledged in his deposition testimony that
he believed all along, and at least by 1997, that his breathing problems were
attributable to his use of isocyanate-containing paint products manufactured
by the defendants. This Court has
repeatedly stated that the statute of limitations begins to run when a plaintiff
has knowledge of the fact that something is wrong and not when he or she knows
of the particular nature
of the injury. See, Harrison v. Seltzer
165 W.Va. 366, 371, 268 S.E.2d 312, 315 (1980); Gaither v. City Hosp., Inc.
199 W.Va. 706, 712, 487 S.E.2d 901, 907 (1997); McCoy v. Miller
W.Va. 161, 166, 578 S.E.2d 355, 360 (2003). Goodwin's argument that we should
depart from this bedrock precedent is unpersuasive.
conclusively reveals that long before the diagnosis of occupational asthma (based
upon a 1999 medical referral by his attorneys), Goodwin believed that inhaled
paint fumes caused him serious pulmonary problems, shortness of breath, and tightness
in his chest. One such example of an exposure associated with symptoms was the
incident in 1997 when Goodwin watched his son-in-law paint a bus. Where
a plaintiff knows of his injury, and the facts surrounding that injury place
him on notice of the possible breach of a duty of care, that plaintiff has an
affirmative duty to further and fully investigate the facts surrounding that
potential breach. McCoy v. Miller
, 213 W.Va. 161, 165, 578 S.E.2d
355, 360 (2003)(citing Harrison v. Davis
, 197 W.Va. 651, 478 S.E.2d 104
(1996)). In fact, the record reveals that Goodwin did indeed take affirmative
action to investigate his breathing problems.
related breathing problems to painting as early as 1988. He contacted his family
doctor on June 3, 1997, with specific complaints which he related to painting.
In 1998, Goodwin sought out the legal services of the Law Offices of Stuart Calwell
because the firm advertised for clients who had experienced breathing problems
due to exposure to paint. By June of 1999, Goodwin's attorneys had received the
pertinent medical records from Dr. Selvaraj, which noted that Goodwin had been
painting causing breathing problems. Five months later, the office apparently
received Dr. Abrahams' report diagnosing Goodwin with occupational asthma. It
was yet another 23 months, however, before Goodwin would file suit.
end, consideration of the discovery rule based upon the unrebuttable record herein
leads the Court to agree with the circuit court that the underlying action was
filed well over two years after Goodwin first knew that he suffered a breathing
problem caused by his use of isocyanate-containing paints. While it is unclear
to us why there was such a significant delay in the filing of the underlying
action, it is clear that the discovery rule was never intended to excuse such
a delay, nor will this Court allow the discovery rule to be modified, manipulated
or expanded to now be used to remedy such a delay. Accordingly, we agree that
Goodwin's complaint was filed beyond the applicable statute of limitations.
further attempt to avoid the effect of the statute of limitations herein, Goodwin
also now complains of a separate neuropsychological injury caused by the same
exposures to paint fumes that caused his breathing problems. Goodwin asserts
that he was absolutely unaware of such an injury until it was diagnosed by Dr.
Steven F. Dreyer, a psychologist, in 2003. Goodwin claims that the neuropsychological
injury was caused not by isocyanates contained in the paint, but by solvents
contained in the paint. Goodwin argues that this injury is a separate and distinct
injury caused by a separate and distinct product component. He does not claim
that a separate exposure caused this injury. Because the neuropsychological injury
was not diagnosed until 2003, Goodwin asserts that it should be ruled a viable
claim as the statute of limitations had not yet run on the claim when the circuit
court issued its decision. (See
The issue before us is when Goodwin knew that he had suffered harm from breathing
paint fumes. There is simply no credible argument upon which Goodwin can rely
to avoid the operation of the statute of limitations under these facts. Goodwin
knew in 1997, and arguably earlier, that he had suffered some sort of injury
his exposure to paints. On this record, it was Goodwin's duty to begin investigating
the full extent
of his injuries at that time. Where a plaintiff
sustains a noticeable personal injury from a traumatic event, the statute of
limitations begins to run and is not tolled because there may also be a latent
injury arising from the same traumatic event. Syl. Pt. 3, Jones v.
Trustees of Bethany College
, 177 W.Va. 168, 351 S.E.2d 183 (1986).
asserts that he did not and could not have known about a latent neuropsychological
injury until he read Dr. Dreyer's report in 2003, and, therefore, the discovery
rule operates to save his claim. Such an argument fails under Bethany College
It is the recognition of harm from exposure to paint fumes herein which triggers
the statute of limitations. In Bethany College
, this Court acknowledged
that other jurisdictions have clarified the traumatic event/latent manifestation
case and its relationship to the statute of limitations, such as in the
case of Albertson v. T.J. Stevenson & Co.
, 749 F.2d 223, 230 (5th
pure latent injury case ordinarily arises in one of three situations: a suit
by a worker who contracts an occupational disease, a medical malpractice suit
by a patient who discovers an injury long after the negligent medical treatment
has been administered, or a product liability suit by a consumer of a drug or
other medically related product who discovers a side effect from the use of the
defendant's product. In each of the pure latent injury cases, the plaintiff fails
to discover either the injury or its cause until long after the negligent act
occurred.' Id. at 170-171, 185-186.
In such a case, the discovery rule is applicable. However, Goodwin's alleged
neuropsychological injury cannot be called a pure latent injury. And
we stated in Bethany College:
there has been a noticeable injury caused by a traumatic event, the fact that
there may be a latent component to the injury does not postpone the commencement
of the statute of limitations according to a substantial majority of courts. Brassard
v. Boston & Me. R.R., 240 F.2d 138 (1st Cir.1957); Ciccarone v. United
States, 486 F.2d 253 (3d Cir.1973); Beech v. United States, 345 F.2d
872 (5th Cir.1965); Steele v. United States, 599 F.2d 823 (7th Cir.1979); Fletcher
v. Union Pac. R.R., 621 F.2d 902 (8th Cir.1980), cert. denied,
449 U.S. 1110, 101 S.Ct. 918, 66 L.Ed.2d 839 (1981); McEntire v. Malloy,
288 Ark. 582, 707 S.W.2d 773 (1986); Carter v. Cross, 373 So.2d 81 (Fla.App.1979); Dowling
v. Lester, 74 Ga.App. 290, 39 S.E.2d 576 (1946); Ralphs v. City of Spirit
Lake, 98 Idaho 225, 560 P.2d 1315 (1977); Caudill v. Arnett, 481 S.W.2d
668 (Ky.1972); Christian v. Daniell Battery Manufacturing Co., 279 So.2d
214 (La.App.1973); Guiley v. Hammaker, 55 Or.App. 921, 640 P.2d 664 (1982); Steele
v. Organon, Inc., 43 Wash.App. 230, 716 P.2d 920 (1986); Duke v. Housen,
589 P.2d 334 (Wyo.), cert. denied, 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86
(1979); 51 Am.Jur.2d Limitations of Actions § 135 (1970). Id.
at 170, 185.
Where, as here, a party subjectively relates an event or events (here, exposure
to paint) to a noticeable harm or injury, Bethany College is controlling.
important whether or when Goodwin was aware of the full extent of injuries that
might be manifested from the exposure(s). What is important is that Goodwin knew
that he had been harmed as a result of an identified event or events (i.e., exposure(s)
to paint fumes), and it was his duty thereafter to fully investigate the injuries
that might follow that exposure. As we explained in Bethany College, [w]ith
the customary utilization of discovery and other pretrial procedures, considerable
time can be consumed from the date the suit is filed and before it is ready
for trial. This time period when coupled with the initial period of limitations
should enable a plaintiff to learn of any latent injuries that have occurred
from the initial traumatic event. Id. at 172, 187. Goodwin engaged
counsel who advertised an expertise and experience in paint exposure claims.
Waiting some five more years to consider potential neuropsychological harm
under such circumstances is simply unreasonable.
determined that Goodwin's cause of action was filed outside of the period of
time allowed by the statute of limitations, we find that there remains no issue
of material fact to be determined through trial as to whether Goodwin's cause
of action was filed in violation of the statute of limitations. Accordingly,
this Court finds that it was not error for the Circuit Court of Kanawha County
to enter an Order Granting Summary Judgment in favor of Appellees.
The business did not close
for any medical reasons related to Goodwin.
The Social Security Administration
decision referenced a report regarding a September 24, 1998, examination of
Goodwin by Dr. Nilima Bhirud, which was apparently not made a part of this
record. According to the Social Security Administration decision, Dr. Bhirud
noted that Goodwin began having breathing problems two years earlier and that
he had been diagnosed with asthma attributable to exposure to paint chemicals.
It is interesting to note
that the November 8, 1999, letter appears to rely on the results of tests purportedly
performed on November 9, 1999, and December 6, 1999.
The complaint also listed
White Dodge as a defendant. White Dodge was later dismissed from the suit on
April 10, 2002.
Goodwin's complaint does
not directly allege neuropsychological damage. The closest allegation of such
an injury was the allegation of [p]hysical and mental pain and suffering. Otherwise,
the complaint is focused on Goodwin's claims of occupational asthma. The first
apparent mention of neuropsychological damage arose in Goodwin's Memorandum
of Law in Opposition to Defendants' Motion for Summary Judgment, filed on July
No issue has been raised
as to whether or when Goodwin became aware of who produced the paints which
caused his injury.
Again, it is unclear if
Dr. Bhirud's report, which was apparently attached to Goodwin's failed attempts
to obtain Social Security Disability Benefits in 1998, was made a part of the
record in the circuit court proceeding. If it was, Dr. Bhirud's reported history
of a diagnosis of asthma attributable to paint exposure would add further support
to defendants' position.
Goodwin also points out
that the circuit court did not address the neuropsychological injury in its
order granting summary judgment. However, as previously pointed out, Goodwin
only raised the issue himself almost in passing and seemingly as an afterthought
in the last page of his argument in his Memorandum of Law in Opposition to
Defendants' Motion for Summary Judgment. Notably, Goodwin's complaint was never
amended to include a separate and distinct claim for neuropsychological injuries
caused by a separate and distinct component product within the paint to which
he was exposed.