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GANOUSIS v. E.I. DU PONT DE NEMOURS & CO.

August 26, 1992

JEANNETTE GANOUSIS, Plaintiff,
v.
E.I. DU PONT DE NEMOURS & COMPANY, Defendants. EVA CAZARES, Plaintiff, v. E.I. DU PONT DE NEMOURS & COMPANY, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 Jeannette Ganousis ("Ganousis") and Eva Cazares ("Cazares") have sued E.I. du Pont de Nemours & Company ("du Pont"), each claiming injury from a temporomandibular joint ("TMJ") implant that had used a product bearing the "Proplast" trademark. Proplast was manufactured by Vitek, Inc. ("Vitek") with the use of raw materials purchased from du Pont. Vitek has since gone bankrupt, so Ganousis and Cazares (like many other persons around the country who suffered serious injuries when their own implants deteriorated in place) seek recovery from du Pont's deep pocket. *fn1"

 In the course of preparing its opinion on issue-narrowing motions that had been filed by du Pont under Fed R. Civ. P. ("Rule") 16, this Court came to question whether either Ganousis or Cazares had timely filed her lawsuit. Unlike that issue, which posed discrete factual questions applicable only to Ganousis and Cazares, the parties' submissions on du Pont's Rule 16 motion had implicated several substantive issues that seemed to be shared with every one of the Proplast lawsuits as to which Zimmerman Reed on the one hand and du Pont's general counsel on the other are doing business on so many judicial fronts (indeed both sets of lawyers have made this Court their regular pen pal, forwarding opinions from other courts as like motions are decided elsewhere).

 At that point this Court was constrained to issue still another brief memorandum opinion (this one dated August 11, 1992) directing Zimmerman Reed, as counsel for Ganousis and Cazares, to focus on the issues more sharply than their memorandum filed a day earlier had done. Now plaintiffs' counsel have finally come to grips with the relevant issues in their latest submission, captioned "Plaintiffs' Supplemental Memorandum in Opposition to Defendant's Motion for Summary Judgment Renewed Pursuant to the Court's May 18, 1992 Order" (cited "Supp. Mem." or "P. Supp. Mem."). du Pont's proposed dismissal of both actions on statute of limitations grounds is therefore ripe for determination.

 Facts

 Ganousis brought her lawsuit here on December 7, 1990, while Cazares sued on December 18 of that same year. There is a dispute between the parties as to when each plaintiff was put on the type of inquiry notice that would start the Illinois limitations clock ticking (see Ill. Rev. Stat. ch. 110, §§ 13-202, 13-213(d); Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 171, 421 N.E.2d 864, 868, 52 Ill. Dec. 1 (1981)). Zimmerman Reed (in their Mem. with Regard to Statute of Limitations Issues 2, 4) have acknowledged that Ganousis should have known of her alleged injuries by February 20, 1988 *fn2" and that Cazares should have known of her alleged injuries not later than May 25, 1988 *fn3" --though in their most recent Supplemental Memorandum they have raised a new argument that would move the commencement date for the running of limitations forward even further than those dates (under the "continuing tort" theory discussed later in this opinion). du Pont would place both kickoff dates several months earlier than Zimmerman Reed would admit to at best, charging Ganousis with inquiry notice on December 2, 1987 (that was the date of the CT scan to which Dr. Lagrotteria later referred) and attributing inquiry notice to Cazares not later than December 17, 1987 (when her tomograms showed bilateral degenerative changes and implant fracture).

 Before either of plaintiffs' actions was filed here, Zimmerman Reed had brought three putative class actions in Minneapolis against Vitek, du Pont and Vitek's principal Charles Homsy:

 1. Blaschke-Mansfeldt v. Vitek, Inc., No. 89-1534 (Dist. Ct. 4th Judicial Dist., Hennepin Cty., Minn.);

 2. Monsaas v. Vitek, Inc., No. 89-7382 (Dist. Ct. 4th Judicial Dist., Hennepin Cty., Minn.) and

 3. Diets v. Vitek, Inc., No. 3-89-711 (D. Minn.).

 Blaschke-Mansfeldt was the first of those, the Amended Complaint containing class action allegations having been filed in that case on March 31, 1989. du Pont has provided copies of that First Amended Complaint and of the later Complaint in Monsaas, Paragraph 4 of each of which contained these allegations:

 (a) A Class Action is alleged pursuant to Minnesota Rules of Civil Procedure, Rule 23.

 (b) The Class consists of all persons who now are or have been recipients of surgical implants of Vitek's Proplast TMJ Interpositional Implants, and who have suffered damage as a result of the implantation of the device.

 Although that language could literally be read as though the putative class would encompass Illinois residents such as Ganousis and Cazares, *fn4" when the actual motion for class certification was filed later on in Blaschke-Mansfeldt plaintiff's counsel Zimmerman Reed said this (Mem. in Support of Class Certification 6):

 Also, Plaintiff proposes that pursuant to Rule 23.02(4)(B) the class be limited to those plaintiffs residing in Minnesota at the time the defective implant was surgically placed in their body. Therefore, the class should be defined as follows:

 (1) those who had the Proplast Interpositional implant surgically implanted in their jaw; and

 (2) those who resided in Minnesota when the device was implanted in their jaw;

 The class proposed is composed of recipients of the Proplast/Teflon Interpositional implant who resided in Minnesota at the time of receipt of the implant.

 That limited definition was deliberately adopted for three reasons that were expressly urged by Zimmerman Reed at its ...


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