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Kordek v. United Agri Products

April 16, 2007

DAVID J. KORDEK, PLAINTIFF,
v.
UNITED AGRI PRODUCTS, INC., F/K/A TREKKER CHEMICAL COMPANY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Michael T. Mason

Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Michael T. Mason, United States Magistrate Judge: Before the Court is plaintiff's motion to quash subpoena, or in the alternative, for a protective order. This matter was referred to this Court by Judge Gettleman in accordance with 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.1.

On February 7, 2007, defendant issued a subpoena to plaintiff's counsel and served plaintiff with defendants' second set of requests for production. Both the subpoena and the second set of production requests sought plaintiff's counsel's files regarding consultations with plaintiff between November 2003 and March 14, 2004. Plaintiff asks this Court to quash the subpoena, or in the alternative, to enter a protective order requiring plaintiff's counsel to turn over his files to the Court for an in camera inspection. For the reasons set forth below, plaintiff's motion is denied.

BACKGROUND

This case arises out of alleged exposure to carcinogenic products while plaintiff, a volunteer firefighter, responded to a fire at defendant's chemical plant. The fire at defendant's plant occurred on October 9, 1990. Plaintiff was diagnosed with bladder cancer in November 2003. Shortly after discovering he had bladder cancer, plaintiff consulted with the law firm of Sullivan, Hincks & Conway ("plaintiff's counsel"). In late November or early December 2003, plaintiff retained the firm to represent him in connection with a medical malpractice action relating to his physician's failure to properly diagnose plaintiff's cancer.

Plaintiff filed this action against the defendant in the Circuit Court of Cook County, Illinois on March 14, 2006.*fn1 In the complaint, plaintiff alleged that exposure to chemicals or other carcinogenic products at defendant's plant caused him to develop bladder cancer. Plaintiff filed his complaint approximately two years and four months after he discovered he had bladder cancer. However, plaintiff specifically invoked the discovery rule in his complaint. In particular, plaintiff alleged that prior to October 2005, he had no reason to believe that his exposure to the carcinogenic products may have caused his cancer. Plaintiff also alleged that in or about October 2005, plaintiff was informed by his physician that his particular form of cancer was due to exposure to carcinogenic products like those maintained at defendant's plant.

Because plaintiff invoked the discovery rule, defendant issued several requests for admission and an interrogatory in order to determine when plaintiff discovered the cause of his injury. In plaintiff's supplemental response to defendant's requests for admissions, plaintiff stated that, [he] never considered whether his bladder cancer could have been caused by exposure to chemicals, products or other substances at the Trekker facility until after he met with Susan (Cunefare) Fisher in late 2005 and she informed him that her deceased husband's physician had made a connection between her husband's cancer and the chemical exposure at the Trekker plant.

Plaintiff further stated that, [his] first discussion with anyone during which he even considered the possibility that his bladder cancer could have been caused by exposure to chemicals, products or other substances was his initial discussion with Susan (Cunefare) Fisher in late 2005.

In his answers to defendant's first set of interrogatories, plaintiff explained that he met with Susan (Cunefare) Fisher in October 2005 and discovered that her late husband, the assistant chief of the Mendota Fire Department at the time of the fire at defendant's plant, had died of cancer. Ms. Fisher informed plaintiff that certain doctors had linked her husband's death to exposure to chemicals at defendant's plant. Plaintiff gave copies of materials received from Ms. Fisher to his oncologist in November 2005 and the oncologist confirmed that plaintiff's cancer was also caused by exposure to chemicals during the fire at defendant's plant.

Despite plaintiff's repeated claim that he never spoke with anyone about whether his exposure to chemicals at defendant's plant could have caused his cancer prior to late 2005, defendant presented conflicting evidence in the form of an affidavit from Dennis J. Rutishauer. Mr. Rutishauer is the current Chief of the Mendota Fire Department in Mendota, Illinois. He has worked for the fire department full time since 1993. Mr. Rutishauer, along with plaintiff and Dale Cunefare, fought the fire at defendant's plant on October 9, 1990. In his affidavit, Mr. Rutishauer stated that upon learning that plaintiff had bladder cancer, he visited plaintiff in the hospital in Rockford, Illinois. During that visit, plaintiff "raised the issue of whether his cancer was caused by his claimed exposure to smoke or chemicals at 'Trekker' on October 9, 1990." Mr. Rutishauer could not remember the exact date of the visit. However, the visit must have occurred in either November or December of 2003, while plaintiff was a patient at the Rockford Memorial Hospital. Indeed, plaintiff admitted that he was not a patient at Rockford Memorial Hospital at any time other than between November 4 - November 16, 2003 and November 30 - December 6, 2003.

ANALYSIS

This is a diversity case and therefore, Illinois law supplies the applicable limitations period. Kumpfer v. Shiley, Inc., 741 F. Supp. 738, 739 (N.D. Ill. 1990). Under Illinois law, an action for damages for injuries to the person must be commenced within two years from the date that the cause of action accrues. 735 ILCS 5/13-202. Pursuant to the common law discovery rule, the statute of limitations begins to run when a party knows or reasonably should know that an injury has occurred and that it was wrongfully caused. Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 171, 52 Ill. Dec. 1, 421 N.E.2d 864 (1981). At that point, the party is under an obligation to inquire further to determine whether an actionable wrong was committed. Id. In other words, the statute of limitations begins to run when a reasonable person possesses sufficient information to be put on inquiry to determine whether a cause of action exists. Knox College v. Celotex Corp., 88 Ill. 2d 407, 415-16, 58 Ill. Dec. 725, 430 N.E.2d 976 (1982).

Here, plaintiff invoked the discovery rule in his complaint. As a result, defendant seeks plaintiff's counsel's files in order to determine when plaintiff learned of his injury or rather, when plaintiff possessed sufficient information to be put on inquiry to determine whether a cause of action against the defendant existed. Plaintiff asks this Court to quash the subpoena defendant issued to his law firm, or in the alternative, to enter a protective order requiring plaintiff's counsel to turn over his files to the Court for an in camera inspection. Plaintiff argues that he never put his confidential communications with his attorneys at issue in this case. Plaintiff further claims that he has affirmatively explained his ...


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