DANIELLE SICKLES, individually and as Administrator of the estate of MARK SICKLES, Plaintiff,
WESTERN CHEMICAL, INC.; ARGENT CHEMICAL LABORATORIES; GEORGIA PACIFIC CHEMICALS, LLC; MOMENTIVE SPECIALTY GROUP, INC.; BORDEN CHEMICALS, INC.; HEXION SPECIALTY CHEMICALS, INC.; and DOES 1-25, Defendants.
JOY FLOWERS CONTI, District Judge.
This matter is before the court upon a joint motion for summary judgment (ECF No. 80) filed by defendants Georgia-Pacific Chemicals, LLC ("Georgia-Pacific") and Momentive Specialty Chemicals, Inc. ("Momentive" and together with Georgia-Pacific, "defendants"). In the underlying action, plaintiff Danielle Sickles ("plaintiff"), on behalf of her deceased husband, Mark Sickles ("Sickles"), filed a four-count complaint alleging: (1) defects in the design and marketing of industrial chemicals and solvents (Count I); negligence in the design and marketing of those same chemicals (Count II); a claim for wrongful death pursuant to 42 PA. CONS. STAT. § 8301 (Count III); and a survival claim pursuant to 42 PA. CONS. STAT. § 8302 (Count IV). (ECF No. 73.) This court has jurisdiction pursuant to 28 U.S.C. § 1332.
II. Factual Background
The following facts are undisputed, except where otherwise noted. From 1983 through 2009, Sickles worked for the Pennsylvania Fish & Boat Commission as a laborer and fish culturist at a fish hatchery located in Linesville, Pennsylvania. (ECF No. 73 ¶ 12; Combined Statement of Material Facts ("C.S.F.") (ECF No. 93) ¶ 4.) During the course of his employment, Sickles worked directly with various toxic chemicals, including formalin and formalin-based products, which were used to prevent the growth of fungus in the hatchery's fish tanks. (ECF No. 73 ¶¶ 13, 23; C.S.F. (ECF No. 93) ¶3.) Sickles never received any warning or instruction concerning the need to utilize respiratory protection or otherwise take precautions to avoid injury from exposure to formalin. (C.S.F. (ECF No. 93) ¶ 4.) His exposure, however, to those chemicals frequently caused him to experience severe dizziness and illness. (Workers' Compensation Transcript ("W.C. Tr.") (ECF 82-5) at 10-12.)
On December 30, 2008, Sickles was formally diagnosed with pancytopenia, a medical condition marked by a decrease in red and white blood cells. (C.S.F. (ECF No. 93) ¶ 10.) At that time, Sickles' oncologist, Nimit Sudan, opined that "a bone marrow biopsy to rule out myelodysplastic syndrome" ("MDS") should be performed if Sickles' blood counts did not improve. ( Id. ¶ 11.) On February 3, 2009, Sickles underwent a bone marrow biopsy that was "suggestive of MDS, " although not conclusive. ( Id. ¶¶ 12-13). Dr. Sudan discussed the possibility of an MDS diagnosis with Sickles and his wife at a follow-up meeting on February 17, 2009. ( Id. ¶ 13.)
On June 1, 2009, another oncologist, Jason Brown, reviewed Sickles' medical records and agreed that his counts were "suggestive of MDS... but not conclusive." (C.S.F. (ECF No. 93) ¶ 14; ECF 82-1 at 6.) Dr. Brown noted that Sickles expressed concern about spending the "majority of the day" around "a very dirty work environment" in light of his low white blood counts. (C.S.F. (ECF No. 93) ¶ 14.) As a result, Sickles was directed to "stay off work for the next seven days given his [work] environment." ( Id. ¶ 14.)
A second bone marrow biopsy was performed on June 15, 2009. ( Id. ¶ 15.) Based on the results of that biopsy, Dr. Brown and another oncologist, Dr. Haifaa Abdulhaq, each issued a diagnosis of MDS. (ECF 82-1 at 8-11.) Dr. Brown again ordered Sickles to take time off work in light of the "very dirty environment" at the hatchery. (C.S.F. (ECF No. 93) ¶ 15.)
At a follow-up meeting on July 10, 2009, Dr. Brown noted that Sickles had again expressed "questions about work." ( Id. ¶ 16.) As a result of his ongoing illness, Sickles' terminated his employment at the fish hatchery on September 1, 2009. ( Id. ¶ 31.)
Sickles passed away on November 2, 2011. ( Id. ¶ 5.) On December 29, 2011, plaintiff filed a Workers' Compensation Claim Petition seeking lost wages, medical bills, and death benefits as the result of Sickles' MDS diagnosis and eventual death. ( Id. ¶ 21.) On the claim petition, plaintiff described her husband's illness as "Myelodyplastic syndrome, pancytopenia, leukemia, and related complication[s]." ( Id. ¶ 22.) The claim petition also stated that the illness had resulted from "[e]xposure to chemicals including formaldehyde, tenzine and diquat" and that her husband's illness had occurred on his employer's premises. ( Id. ¶ 24.) Finally, in response to a question on the claim petition concerning notice to the employer, plaintiff indicated that "[a]fter repeated episodes of falling ill after returning to work, [Sickles] and physician reported the environmental relationship to management" on or before September 1, 2009. ( Id. ¶ 25.)
III. Procedural History
On September 7, 2010, Sickles commenced the instant lawsuit against Western Chemical, Inc. ("Western Chemical"), Argent Chemical Laboratories ("Argent Chemical"), and 25 John Doe defendants, alleging that Sickles' MDS was the result of his occupational exposure to a chemical manufactured, sold or distributed by one or more defendants. (ECF No. 1). The case was assigned to Judge Sean J. McLaughlin.
Following her husband's death, plaintiff, individually and as administrator of his estate, filed an amended complaint on February 26, 2012, restating the same operative facts and adding Georgia-Pacific, Borden Chemical, Inc. ("Borden"), and Hexion Specialty Chemicals, Inc. ("Hexion") as defendants. (ECF No. 41). Georgia-Pacific and Momentive each moved to dismiss on the basis that plaintiff's claims against Georgia-Pacific and Momentive, filed over two years after his diagnosis with MDS, were time-barred. (ECF Nos. 56, 58). On December 13, 2012, Judge McLaughlin held an oral hearing at which plaintiff's counsel argued, for the first time, that Sickles had not discovered the alleged link between his illness and his exposure to formalin until April 24, 2010. (Hearing Transcript (ECF No. 92) at 4-6, 12). In light of the undeveloped nature of this allegation, Judge McLaughlin granted the defendants' motion to dismiss without prejudice, ordered plaintiff to file a seconded amended complaint, and granted a period of limited discovery to explore the potential application of the discovery rule to plaintiff's allegations. ( Id. at 28-30.)
On January 3, 2013, plaintiff amended her complaint to add the following paragraph:
On or about April 24, 2010, plaintiffs first suspected that a relationship possibly existed between Mr. Sickle's exposure to formalin or other chemicals at work, and his medical condition of Myelodysplastic syndrome, or pre-leukemia, not verified by a doctor, but based upon research conducted by his step-daughter, Sunni Loucks, who is a layperson. This started a search for the cause, which resulted in this claim.
(ECF No. 73 ¶ 17.) Georgia-Pacific and Momentive responded by filing the instant joint motion for summary judgment, again arguing that plaintiff's claims were untimely filed. (ECF No. 80.) Plaintiff filed a brief in opposition to that motion on July 3, 2013 (ECF No. 84) and defendants replied on July 15, 2013. (ECF No. 87.) On August 27, 2013, this matter was reassigned to the undersigned judge. (ECF No. 89.) The aforementioned motion is fully briefed and ripe for review.
IV. Standard of Review
Summary judgment may only be granted where the moving party shows that there is no genuine dispute about any material fact, and that a judgment as a matter of law is warranted. FED. R. CIV. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the court must enter summary judgment against a party who fails to make a showing sufficient to establish an element essential to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In evaluating the evidence, the court must interpret the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). A dispute is "genuine" if the evidence is such that a reasonable trier of fact could render a finding in favor of the nonmoving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the nonmoving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the nonmoving party's burden of proof. Celotex Corp., 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond his or her pleadings and designate specific facts by ...