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July 18, 1983


The opinion of the court was delivered by: Kocoras, District Judge:


This matter comes before the Court on the motions of four defendants to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motions are denied in part and granted in part.


Plaintiff is the administratrix of the estate of her deceased husband, Byron J. Eisenmann. In her complaint, Mrs. Eisenmann alleges that her husband "was a metal engraver who continually worked with and was exposed to benzine and benzine related products during the period of 1966 to 1976." Complaint ¶ 12. She contends that this exposure directly and proximately caused him to develop chronic lymphocytic leukemia, which led to his death in April, 1978. Complaint ¶ 11, 13.

The complaint names as defendants Cantor Bros., Inc.; Fallek Chemical Corporation, a/k/a Diamond Shamrock Agricultural Chemicals, Inc. ("Fallek"); Mobile Chemical Corporation ("Mobil"); Ashland Chemical Company, Division of Ashland Oil, Inc. ("Ashland"); Sun Oil Company*fn1 ("Sun Oil"); Charter International Oil Company ("Charter"); and other as of yet unknown defendants. Each of these defendants is alleged to have produced, sold or otherwise put into the stream of interstate commerce benzine and benzine related products. In Count I, defendants are alleged to have been negligent; in Count II, a strict liability claim is raised; and in Count III a breach of warranty cause of action is asserted.

Defendants Fallek, Mobil, Ashland, Charter and Sun Oil have moved to dismiss all three counts.


Defendants argue that the tort theories espoused in Counts I and II must be barred as violating the applicable Illinois statute of limitations. Defendants note that Mr. Eisenmann's employment — and therefore his alleged exposure to benzine — ended in 1976; that he died in 1978; and that this suit was not commenced until January, 1983. Under any arguably applicable statute of limitations the action is untimely, according to defendants.

Plaintiff acknowledges the foregoing facts, but contends that she did not "discover" that her husband's death was caused by defendants' wrongful acts until January, 1981. Complaint ¶ 15.*fn2 Accordingly, she argues, the "discovery rule" should be applied, and the statute did not begin to run until January, 1981. Her lawsuit was thus timely filed within the requisite two year period after discovery, she says.

In determining whether the discovery rule is applicable in the instant diversity action, Illinois law must be applied. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

There is no question that Illinois utilizes the discovery rule in products liability cases. For a number of years Illinois has used the discovery rule in products liability cases when the personal injury received resulted from a sudden traumatic event. The Supreme Court concluded that the cause of action accrued at the point of that event because then "[p]laintiff first knew of his right to sue." Williams v. Brown Manufacturing Co., 45 Ill.2d 418, 261 N.E.2d 305 (1975). To refuse to apply the discovery rule to products liability cases "would emasculate much of the consumer protection afforded by Suvada v. White Motor Co. [32 Ill.2d 612, 210 N.E.2d 182 (1965)] [the landmark 1965 Illinois products liability case]." Id. at 432, 261 N.E.2d 305. See also Berry v. G.D. Searle & Co., 56 Ill.2d 548, 309 N.E.2d 550 (1974) (strict liability cause of action involving sale of contraceptive pill did not accrue when pill was manufactured, sold or consumed, but when plaintiff suffered stroke).

In Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 52 Ill.Dec. 1, 52 Ill.Dec. 1, 421 N.E.2d 864 (1981), the Supreme Court extended the rule to a case such as the present one, where no identifiable "traumatic event" had taken place. Plaintiff had suffered and eventually died from asbestosis, but his progressive disease was not diagnosed until sixteen years after he had first been employed as an asbestos worker. The Court weighed the policies underlying statutes of limitations against the hardship which unwavering adherence to those statutes would cause plaintiffs, and concluded that the discovery rule should be used in Illinois:

  [W]here the passage of time does little to increase
  the problems of proof, the ends of justice are served
  by permitting plaintiff to sue within the statutory
  period computed from the time at which he knew or
  should have known of the existence of the right to
  sue." We think the instant case is a prime example of
  where, though the passage of time does create
  problems of proof, those problems are outweighed by
  the hardship to the plaintiff who neither knows nor
  reasonably should know that he is being injured.

Id., 52 Ill.Dec. at 4, 421 N.E.2d at 867. Accordingly, the Court held:

    We are of the opinion that the preferred rule is
  that the cause of action accrues when [1] the
  plaintiff knows or reasonably should know of any
  injury and [2] also knows or reasonably should know
  that the injury was caused by the wrongful acts of

Id., 52 Ill.Dec. at 5, 421 N.E.2d at 868.*fn3 See also, Needham v. White Laboratories, Inc., 639 F.2d 394 (7th Cir. 1981). Thus, it is abundantly clear that the "discovery rule" would have been applied in an action brought by Mr. Eisenmann himself against defendants.


Defendants nonetheless contend that the discovery rule is not applicable in this case, where the injured worker has died and the suit before this Court is brought by his wife. In support of this stance, defendants state that Mrs. Eisenmann's action is brought pursuant to the Illinois Survival Act, and that the "discovery rule" is not recognized under that Act. Mrs. Eisenmann counters that her action is derived from the Illinois Wrongful Death statute, which does encompass the discovery rule.

Unfortunately, the Illinois Supreme Court has not expressly stated its view on whether or not the "discovery rule" applies under either the Illinois Survival Act or the Wrongful Death statute. This Court therefore must determine, as a state trial court would in this situation, what the Illinois Supreme Court's holding will be, given the related cases decided by it thus far. See, e.g., Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). After carefully reviewing the relevant cases, I conclude that the "discovery rule" must be applied under both statutes, and therefore governs the instant case. This conclusion rests upon several considerations.

First, it is relevant to consider the scope of recovery allowed by law under each of the statutes, respectively.

The Wrongful Death Act provides that personal representatives of the deceased may bring actions "for the exclusive benefit of the surviving spouse and next of kin . . . and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting for such death, to the surviving spouse and next of kin . . ." Ill.Ann.Stat. ch. 70 § 2 (Smith-Hurd Supp. 1981). Thus, under this provision, Mrs. Eisenmann is allowed to recover for her own pecuniary loss from her husband's death, arising after his death, i.e., for his lost wages and other such monetary losses. Murphy v. Martin Oil Co., 56 Ill.2d 423, 308 N.E.2d 583 (1974). This recovery does not become part of the decedent's estate, and distribution of the award is made by the court according to the degree of dependency among the widow and other next of kin. See Nat. Bank of Bloomington v. Norfolk & W. Ry., 73 Ill.2d 160, 23 Ill.Dec. 48, 383 N.E.2d 919 (Ryan, Justice, dissenting).

In contrast, the Survival Act states that "actions to recover damages for an injury to the person" survive the death of the injured person. Ill.Ann.Stat. ch. 110 1/2 § 27-6. This has been held to allow recovery for such items as the conscious pain and mental suffering, expenses, and lost wages of the decedent sustained during the interval between a decedent's injury and his death. See, e.g., Murphy v. Martin Oil Co., supra. In this instance, the recovery becomes a part of the decedent's estate and is subject to the obligations of the estate and to distribution according to statute or a will. Nat. Bank of Bloomington, supra.

Thus, as the Supreme Court has summarized, "[t]he statutes were conceptually separable and different. The one related to an action arising upon wrongful death; the other related to a right of action for personal injury arising during the life of ...

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