United States District Court, D. Minnesota
Marlin P. Filipek and Dorothy Filipek, Plaintiffs,
The Boeing Company, et al., Defendants.
Martin Przybysz, Esq. and Simon Greenstone Panatier Bartlett,
PC, counsel for plaintiffs.
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.
S. DOTY, JUDGE
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.After a review of the file, record, and
proceedings herein, and for the following reasons, the court
denies plaintiffs' motion and grants defendants'
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.
now move for summary judgment, arguing that the claims are
time-barred due to Mr. Filipek's earlier diagnosis of
asbestosis - an asbestos-related disease that can
precede mesothelioma - in approximately 2006. According to
defendants, the asbestosis diagnosis started the clock on the
limitations period, which then expired no later than 2012.
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:
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.
Record dated April 4, 2012: “Mr. Filipek presents with
a diagnosis of occupational asbestosis. This was diagnosed
years ago.” Id. Ex. 5, at 1.
Record dated September 21, 2015: “Calcified pleural
plaques correlate with patient's known history of
asbestosis.” Id. Ex. 7, at 1.
Record dated September 21, 2015: “Pleural plaques
significant for history of asbestosis.” Id.
Ex. 13, at 1.
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.
Record dated April 2, 2016: “Persistent 20% right
pneumothorax small pleural effusions old granulomatous
disease and asbestosis.” Id. Ex.8, at 6.
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.
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 ...