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Strang v. R.J. Reynolds Tobacco Co.

November 18, 2008

DAWN STRANG, ET AL., PLAINTIFFS,
v.
R.J. REYNOLDS TOBACCO CO., ET AL. DEFENDANTS.



The opinion of the court was delivered by: J. Kapala, District Judge

MEMORANDUM OPINION AND ORDER FREDERICK

Plaintiff Dawn Strang, on behalf of her late husband, Daniel M. Strang, filed a 40-count complaint against various tobacco companies pursuant to the Illinois wrongful death and survival statutes. The complaint alleges that Mr. Strang died from lung cancer that allegedly was caused by smoking cigarettes that were designed and manufactured by defendants. Following this court's order on defendants' motion to dismiss, the only remaining claims are for fraudulent misrepresentation, negligent design, and pre-1969 negligent failure to warn.

Currently before the court is defendants' motion for summary judgment, in which defendants argue that plaintiff has no evidence to support the necessary elements of her remaining claims and, in addition, that all of her claims are barred by the applicable two-year statute of limitations, 735 ILCS 5/13-202. For the reasons discussed below, the motion for summary judgment is granted.

I. BACKGROUND

Mr. Strang was born in 1948 and began smoking when he was 10 or 11 years old. By the time he met plaintiff in 1964, Mr. Strang was smoking two or more packs of cigarettes per day. Mr. Strang smoked several brands of unfiltered, full-flavored cigarettes, including Lucky Strike, Camel, and Pall Mall, which were manufactured by defendants.

Since at least 1970, Mr. Strang had a cough that both he and plaintiff would refer to as a "smoker's cough." Mr. Strang and plaintiff both thought that the cough was caused by his smoking. Shortly after Mr. Strang developed his cough (as well as 10 or 15 more times thereafter), plaintiff told him that he needed to quit smoking and that smoking was hazardous to his health, to which Mr. Strang responded, "I know." Mr. Strang did not quit smoking, however, and by the mid 1980's he was coughing so much that his cough would interfere with other things he was doing. Around that time, plaintiff told Mr. Strang that he needed to stop smoking in order to cure his cough, and Mr. Strang understood that his cough was caused by his smoking.

On May 29, 2003, a CT scan of Mr. Strang's chest and a needle biopsy were performed, resulting in a diagnosis of lung cancer. Mr. Strang died as a result of his lung cancer on July 16, 2003.*fn1 Plaintiff filed the instant lawsuit on May 24, 2005.

II. ANALYSIS

A. Statute of Limitations

Defendants argue that all of plaintiff's remaining claims are barred by the Illinois statute of limitations for personal injury, which requires that a claim for personal injury "shall be commenced within 2 years next after the cause of action accrued." 735 ILCS 5/13-202.*fn2 The parties dispute whether the causes of action in this case accrued in 1970, when Mr. Strang developed a cough that he attributed to smoking, as defendants contend, or in 2003, when Mr. Strang was diagnosed with lung cancer, as plaintiff claims.

In Illinois, the "discovery rule" is used to determine the date of accrual for latent injuries, or injuries that are not caused by a specific, traumatic event. DeLuca v. Liggett & Meyers, Inc., No. 00 C 7781, 2003 WL 1798940, at *11 (N.D. Ill. Apr.4, 2003). The discovery rule provides that "the cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another." Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 169 (1981).*fn3 Although helpful to injured persons, the discovery rule does not provide indefinite tolling of the limitations period and does not require perfect knowledge. Instead, "[t]he limitations period begins to run when the plaintiff realizes, or should have realized, that he suffered an injury, not when he 'realizes the consequences of the injury or the full extent of the injury.'" DeLuca, 2003 WL 1798940, at *11 (quoting Wilson v. Devonshire Realty, 307 Ill. App. 3d 801, 806 (1999)); see also Golla v. Gen. Motors Corp., 167 Ill. 2d 353, 364 (1995) ("This court has never suggested that plaintiffs must know the full extent of their injuries before the statute of limitations is triggered. Rather, our cases adhere to the general rule that the limitations period commences when the plaintiff is injured, rather than when the plaintiff realizes the consequences of the injury or the full extent of her injuries.").

In this case, the court concludes that the cause of action accrued, and the statute of limitations ran, long before plaintiff filed suit. In doing so, the court is persuaded by the opinion in DeLuca, a case in which the relevant facts are virtually indistinguishable from the instant case.*fn4 In DeLuca, the decedent began smoking in 1946 when he was 16 years old, and he smoked cigarettes for most of his life. 2003 WL 1798940, at *1. By the early 1980's, the decedent had developed a daily cough which he referred to as a "smoker's cough." Id. at *11. There also was evidence in the record that the decedent had wanted to quit smoking in 1975 because he was suffering from shortness of breath and becoming winded. Id. In June 2000, the decedent was diagnosed with terminal lung cancer. Id. at *1. In November 2000, he filed a lawsuit against the tobacco companies claiming, inter alia, negligent failure to warn. Id. In December 2000, the decedent died and his wife replaced him as the plaintiff in the case and filed an amended complaint. Id.

In DeLuca, while discussing the defendant's motion for summary judgment based on the statute of limitations, the court noted that "the benchmark date is not when [the decedent] was diagnosed with lung cancer, but rather the time at which he became aware of a smoking-related injury to his health." Id. at *11. The court concluded, as a matter of law, that the decedent knew or reasonably should have known that he had an injury caused by cigarette smoking prior to two years before he brought suit in November 2000, and therefore, was barred from bringing suit by the statute of limitations. Id. at *11. As the court reiterated later in its opinion, "the evidence indisputably demonstrates that [the decedent] suffered a smoking injury to his health long before [the diagnosis of lung cancer]; accrual of his claim did not await the ultimate diagnosis of lung cancer." Id. at *13.

In this case, the court agrees with the reasoning in DeLuca and concludes that Mr. Strang knew or reasonably should have known that he had an injury caused by cigarette smoking as early as 1970, when he developed what he referred to as a "smoker's cough," and certainly no later than the mid 1980's when he was coughing so much that his cough would interfere with other things he was doing. Moreover, this court already has said as much in its order on defendants' motion to dismiss, in which the court concluded that "[Mr. Strang's] injury occurred long before he was diagnosed with cancer." Although Mr. Strang certainly did not know the full extent of his injury at the time he developed a "smoker's cough," he was aware that he had been injured to some extent and that the injury was ...


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