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Filipek v. The Boeing Co.

United States District Court, D. Minnesota

September 21, 2017

Marlin P. Filipek and Dorothy Filipek, Plaintiffs,
v.
The Boeing Company, et al., Defendants.

          Eric Martin Przybysz, Esq. and Simon Greenstone Panatier Bartlett, PC, counsel for plaintiffs.

          David N. Lutz, Esq. and Bowman & Brooke LLP, David E. Scouton, Esq. and Foley & Mansfield, PLLP, Bradley R. Bultman, Esq. and Larson King LLP, John C. Hughes, Esq. and Meagher & Geer, PLLP, counsel for defendants.

          ORDER

          DAVID S. DOTY, JUDGE

         This matter is before the court upon the motions for summary judgment on statute of limitations grounds by defendants The Boeing Company, Navistar, Inc., Borg-Warner Morse Tec LLC, CBS Corporation, McNeil Corporation, Northern States Power Company, and United Technologies Corporation and the motion for withdrawal of admissions by plaintiffs Marlin Filipek and Dorothy Filipek.[1]After a review of the file, record, and proceedings herein, and for the following reasons, the court denies plaintiffs' motion and grants defendants' motions.

         BACKGROUND

         This products liability action arises out of Marlin Filipek's decades-long exposure to asbestos from materials and products containing asbestos that were allegedly manufactured, sold, supplied, or distributed by defendants. Compl. ¶¶ 1-7. Mr. Filipek was diagnosed with mesothelioma in January 2016. He and his wife commenced this suit on May 23, 2016, alleging that his illness was caused by that asbestos exposure, and asserting claims of negligence, strict liability, and breach of warranty.[2]

         Defendants now move for summary judgment, arguing that the claims are time-barred due to Mr. Filipek's earlier diagnosis of asbestosis[3] - an asbestos-related disease that can precede mesothelioma - in approximately 2006.[4] According to defendants, the asbestosis diagnosis started the clock on the limitations period, which then expired no later than 2012.

         Defendants rely on several notations in Mr. Filipek's medical records to support its position that he was diagnosed with asbestosis in 2006 and possibly earlier:

         1. Records dated January 4 and July 6, 2016: Mr. Filipek “has long standing asbestosis (seen on CXR x 10 yrs) ... 1954 exposures to asbestos in military, building[.]” Scouton Aff. Ex. 3, at 1, 8.

         2. Record dated April 4, 2012: “Mr. Filipek presents with a diagnosis of occupational asbestosis. This was diagnosed years ago.” Id. Ex. 5, at 1.

         3. Record dated September 21, 2015: “Calcified pleural plaques correlate with patient's known history of asbestosis.” Id. Ex. 7, at 1.

         4. Record dated September 21, 2015: “Pleural plaques significant for history of asbestosis.” Id. Ex. 13, at 1.

         5. Record dated September 25, 2015: “Bilateral calcified pleural plaques with pleural thickening. Small areas of infiltrate fibrosis left lung base. Correlate clinically with history of asbestosis prior infection.” Id. Ex. 9, at 4.

         6. Record dated April 2, 2016: “Persistent 20% right pneumothorax small pleural effusions old granulomatous disease and asbestosis.” Id. Ex.8, at 6.

         7. Record dated April 25, 2016: Mr. Filipek is a “79 yo male with long standing asbestosis now with pleural mesothelioma ....” Id. Ex. 4, at 1.

         Plaintiffs respond that the notations in the above medical records are insufficient to establish that Mr. Filipek had in fact been previously diagnosed with asbestosis or, more important, that he was aware of any such diagnosis. In his July 2016 deposition, Mr. Filipek did not recall being diagnosed with asbestosis “about ten years ago, ” although he did say that “it sound[ed] familiar.” See Filipek Dep. Vol. IV at 635:3-17. In addition to the medical records, however, defendants also rely on Mr. Filipek's later discovery responses (dated March 6, 2017) in which he admitted that he was diagnosed with asbestosis more than six years before commencing this suit:

REQUEST FOR ADMISSION NO. 23: Admit that Plaintiff Marlin Filipek was diagnosed with an asbestos-related disease prior to May 19, 2010.
ANSWER: Plaintiffs incorporate by reference General Objections 1-8. Subject to and without waiving these objections, admit. Plaintiffs reserve the right to supplement and amend this response ...

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