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MEADOWS v. UNION CARBIDE CORP.

April 28, 1989

STEVEN MEADOWS, Plaintiff,
v.
UNION CARBIDE CORPORATION, AMERICAN CYANAMID CO., CHARTER INTERNATIONAL OIL CO., UNION CHEMICALS DIV., UNION OIL CO. OF CALIFORNIA, and STAR BRONZE CO., Defendants


James B. Moran, United States District Judge.


The opinion of the court was delivered by: MORAN

JAMES B. MORAN, UNITED STATES DISTRICT JUDGE.

 On August 14, 1986, plaintiff filed this personal injury action against defendants in the Circuit Court of Cook County, alleging defendants manufactured and supplied his employer with unreasonably dangerous chemicals and that, as a direct result, he sustained chronic respiratory problems and other ailments. Defendant American Cyanamid Co. subsequently removed the action to the district court here. Citing Illinois' two-year limitations upon the filing of lawsuits for personal injuries, defendants assert that plaintiff's cause of action is time-barred. Ill.Rev.Stat. ch. 110, § 13-213(d). Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendants seek summary judgment on the statute of limitations issue. We conclude that under the "continuing tort doctrine" plaintiff's cause of action accrued within the two-year statute of limitations period and therefore deny defendants' motion for summary judgment.

 FACTS

 On January 14, 1980, plaintiff commenced working as a reactor operator for DeSoto Chemical Incorporated. His responsibilities included loading and mixing of various chemicals within tanks and heating the resultant mixture to form certain products. After two weeks in the reactor room plaintiff developed a rash.

 In early 1980 plaintiff began suffering from nervousness, breathing difficulties and heart palpitations. In August of the same year he consulted a doctor because of his medical condition. The doctor concluded that chemical toxicity caused plaintiff's physical condition, including hyperthyrodism.

 In October 1980 plaintiff requested a transfer from the reactor room, claiming the chemicals were causing his medical problems. This request was denied. A meeting with DeSoto personnel in November 1980 also failed to secure plaintiff's removal from the reactor room.

 Plaintiff continued to have problems: difficulty in breathing, chest pains and sleepless nights, and in December 1980 he went to the Mayo Clinic in Rochester, Minnesota, seeking treatment. Doctors there conducted several tests, all of which were inconclusive.

 Following a February 11, 1981 explosion at the DeSoto plant plaintiff was assigned to assist in cleaning up the resulting debris. This task was completed within a month and, until repairs were made in the reactor room, DeSoto transferred plaintiff elsewhere within the plant. These other positions included working as a security guard and as an order-picker at a company warehouse. None of these positions exposed plaintiff to chemicals. On or about May 31, 1982, plaintiff was transferred back to his former position in the reactor room.

 On June 7, 1983, plaintiff again requested a transfer from the reactor room, which was subsequently denied. In January 1984 plaintiff entered the Cook County Hospital's Occupational Medicine Clinics, seeking a determination as to whether his deteriorating physical condition was related to the use of dangerous chemicals. The Clinic provided him with a badge to wear on his lapel to measure solvent exposure at work. After wearing the badge in the reactor room for an eight-hour period, readings indicated exposure to high amounts of vinyl acetate.

 In September 1985 plaintiff was transferred from the reactor room to his former position as a bulkloader. This lawsuit was subsequently filed on August 14, 1986.

 For purposes of ruling on defendants' motion for summary judgment, we hold that defendants' failure to provide a safe product and their failure to adequately warn plaintiff of the dangers of using this product, constitutes a continuing tort. Thus, plaintiff's cause of action accrues on the date when he last faced chemical exposure and, this date coming within the two-year statute of limitations, is not time-barred.

 DISCUSSION

 A. Local Rule ...


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