The United States District Court for the District of Utah recently found in Cannon v. Minnesota Mining and Manufacturing Company (2009 WL 350561) (D. Utah) (Feb. 11, 2009) that all civil actions brought under the Utah Products Liability Act (“UPLA”) are subject to the UPLA two-year statute of limitations and that such limitations period will not be tolled until a plaintiff actually discovers the cause of his or her condition or injury.

Case Summary
Plaintiffs Paul and Heather Cannon alleged that the skin cream Aldara, manufactured by Minnesota Mining and Manufacturing Company (“3M”), caused Mr. Cannon to suffer health problems, including interstitial granulomatous dermatitis and a pulmonary embolism. Mr. Cannon began using Aldara in August of 2004 for the treatment of skin cancer on his neck. Prior to his diagnosis of skin cancer, Mr. Cannon had also been diagnosed with an autoimmune disease. After applying Aldara, Mr. Cannon developed boils, a rash, and lesions on his neck, head and upper arms. He also developed laryngitis, a fever, and had discoloration of his fingernails.

In September 2004, his family doctor, Dr. Goodsell, advised him to discontinue the use of Aldara because he thought Mr. Cannon’s symptoms were the result of an allergic reaction to Aldara. Dr. Goodsell then began treating Mr. Cannon with steroids in order to resolve his symptoms. Mr. Cannon’s symptoms improved after the steroid treatments, but the symptoms were never eliminated. In late October and early November 2004, Mr. Cannon contacted a service specialist at 3M in order to inform 3M of what he believed to be his adverse reaction to Aldara. Dr. Keller, a doctor affiliated with 3M, told Mr. Cannon that his symptoms were caused by his immune disorder and not from taking Aldara.

In November 2004, Mr. Cannon sought a second opinion from immune specialists in California. Those doctors did not discuss what had caused Mr. Cannon’s symptoms, but they were of the impression that further steroid treatments would resolve them.

In March 2006, Dr. Peters diagnosed Mr. Cannon with interstitial granulomatous dermatitis (“IGD”) but could not confirm that the IGD was a result of the Aldara. In November 2006, Mr. Cannon was hospitalized for lung problems and, as a result, he had to be placed on life support for about a month. In March 2007, Mr. Cannon consulted with Dr. Sawitzke who was of the opinion that the IGD and pulmonary embolism were caused by an adverse reaction to Aldara. The Cannons filed suit against 3M and others on December 28, 2007, in Utah state court. The defendants removed the case to federal court and moved for summary judgment.

The primary issue in the case was whether the Cannon’s claims were time-barred by the UPLA two-year statute of limitations, which applied to all civil actions. For statute of limitations purposes, a claim arises under UPLA when a plaintiff alleges a product was defective when sold and that the defective product caused his or her injury. The statute of limitation is not absolute, however, because it contains a discovery rule. The UPLA states, “A civil action under this part shall be brought within two years from the time the individual who would be the claimant in the action discovered, or in the exercise of due diligence should have discovered, both the harm and its cause.”
The court addressed when the Cannons suffered harm and when they discovered or should have discovered the harm. The defendants argued that Mr. Cannon suffered harm in August or September 2004, because that was when he suffered his initial symptoms. After all, the defendants argued, Dr. Goodsell attributed Mr. Cannon’s symptoms to an allergic reaction to Aldara at that time which was enough to put the Cannons on reasonable notice.

The Cannons argued, on the other hand, that Mr. Cannon’s initial reaction was not sufficient harm to begin the running of the statute of limitations, because Mr. Cannon believed it was only a temporary allergic reaction that would disappear with time. Therefore, the Cannons contended they should not be charged with knowledge of the harm until Mr. Cannon was diagnosed with IGD. The Cannons further contended that until Mr. Cannon was diagnosed with IGD, the defendants could not prove the Cannons had knowledge that they suffered anything more than nominal damages, and nominal damages do not suffice to create a cause of action for negligence. The Cannons also argued that they were unaware that Aldara was the possible cause of Mr. Cannon’s health problems until March 2007 when Dr. Sawitzke rendered his opinion that Aldara had caused the IGD and the pulmonary embolism. No other doctor definitively stated that Mr. Cannon’s symptoms were caused by Aldara and, therefore, they could not have been put on notice that Aldara caused the harm until they saw Dr. Sawitzke.

Under Utah law, a defendant must show proof that a plaintiff has suffered actual damages in order to establish that the plaintiff has suffered harm sufficient enough to begin the running of the limitations period. Plaintiffs, however, are not required to receive definitive confirmation of the cause of their harm in order to be put on reasonable notice. The Court held that nominal damages are “usually reserved for situations where a plaintiff suffered no physical harm or insignificant physical harm”, and that Mr. Cannon’s initial reaction was therefore proof of actual harm from the development of boils, lesions, rash, fever and discolored fingernails. The Court stated that based on these facts, Mr. Cannon had suffered some harm by November 2004, which triggered the statute of limitations period as a matter of law. The court further held that the Cannons knew or should have known that Aldara was the possible cause of Mr. Cannon’s health problems in September 2004 when Dr. Goodsell told Mr. Cannon that Aldara was the source of his symptoms and told Mr. Cannon to discontinue the use of Aldara. The court granted the defendants’ motion for summary judgment because the undisputed facts only lent themselves to the conclusion that the statute of limitations began to run in September 2004 and, as such, all of the claims were time-barred by the limitations period.

The Court also addressed the issue concerning alleged fraudulent concealment on the part of 3M. The Cannons argued that 3M was aware that the safety of Aldara was not established for individuals with autoimmune disorders or for application to the face or head. Therefore, plaintiffs believed they should be allowed to conduct discovery concerning what 3M knew about Aldara’s safety and whether 3M made misrepresentations or concealed facts when Mr. Cannon was in contact with 3M. Under Utah law, evidence of fraudulent concealment by a defendant will not preclude that defendant from asserting a statute of limitations defense. The court stated that “attempts by a defendant to prevent discovery of a cause of action are factored into the inquiry of when a plaintiff should have known of the cause of action.” The court held that the Cannons had reasonable notice that Aldara could have been the cause of their harm in September 2004, which was well before Mr. Cannon had any contact with 3M. The court concluded that neither area of inquiry for further discovery was material to the dispositive issues contained in defendant’s motion for summary judgment and, therefore, denied the Cannons’ motions for further discovery.

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Significance of the Decision
In any given toxic tort action, it is not surprising to find a latent disease claim associated with the case. In other words, the plaintiff’s initial contact or exposure to the alleged product or substance does not automatically trigger a manifestation of symptoms. In many cases, those first symptoms of exposure do not show up until many years later. Under Utah law and the Cannon decision, those early symptoms or manifestations are going to be even more closely scrutinized by the Courts to see if they were sufficient enough to put the plaintiff on reasonable notice to start the running of the statute of limitations period.

For further information, please contact Craig T. Liljestrand or your regular Hinshaw attorney.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.