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,
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
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
[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
We are of the opinion that the preferred rule is
that the cause of action accrues when  the
plaintiff knows or reasonably should know of any
injury and  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 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,
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
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 ...