In Ismael Rosas v. BASF Corporation et al., a recent California Court of Appeal decision, the Court reversed the trial court’s grant of summary judgment in favor of the defendant based on a statute of limitations defense. A contributing factor to the Court's reversal of summary judgment was that the plaintiff’s pre-litigation testimony regarding his knowledge of the cause of his injury was phrased in the present tense, rather than the past tense, and, as a result, the Court concluded there was more than one legitimate inference as to plaintiff’s suspicions concerning the extent and timing of the cause of his injury.
The plaintiff, Ismael Rosas, worked as an employee at a food flavoring company for approximately 12 years. In the course of his employment, Rosas was required to mix various powders and liquids, including the chemicals diacetyl and benzaldehyde, to create food flavorings. Approximately 6 years into his employment, Rosas first began suffering from flu-like symptoms for which he saw a doctor. At the time, Rosas’ doctor did not state his flu-like symptoms were connected to Rosas’ exposure to diacetyl and benzaldehyde. Later, approximately 8 years into his employment, Rosas was hospitalized for symptoms of pneumonia. Although Rosas communicated a suspicion to his doctors that his workplace conditions may have contributed to his sickness, Rosas’ doctors never confirmed these suspicions.
In a workers’ compensation proceeding arising out of Rosas’ hospitalization, Rosas discussed his suspicions that his hospitalization for pneumonia symptoms was work-related. Rosas further went on to testify:
“Q: Was there any specific exposure that you had that you suspected was the culprit?
A: Yes, the chemicals.
Q: Do you know the names of those chemicals?
A: Starting with diacetyl. Benzaldehyde.”
(emphasis added).
In subsequent litigation, Rosas’ employer argued this earlier testimony established Rosas was on inquiry notice (an element necessary to begin the running of the applicable statute of limitations) of the cause of his injury at the time of Rosas’ hospitalization. As Rosas’ complaint was not filed until more than two years following Rosas’ hospitalization, Rosas’ employer argued the statute of limitations had therefore run and the trial court’s grant of summary judgment on these grounds was proper.
In response, Rosas argued that his cause of action did not accrue until a much later date when a medical professional finally advised Rosas that he had a certain condition, bronchioloitis obliterans, specifically caused by his exposure to diacetyl. The date on which Rosas received this specific diagnosis was less than two years from the date Rosas filed his complaint and thus, Rosas argued, his complaint was timely filed.
In agreeing with Rosas and reversing the trial court’s grant of summary judgment to Rosas’ employer, the Court of Appeal pointed, in part, to Rosas’ testimony at his workers’ compensation hearing. Specifically, the Court noted Rosas’ testimony did not unequivocally establish Rosas had inquiry notice that his injuries were caused by diacetyl at the time of his hospitalization because the question posed to Rosas was in the present tense. Rosas’ response to the present tense question established only that he suspected diacetyl caused his injury at the time of his testimony, not at the time of his hospitalization. Thus, as there was more than one legitimate inference as to when Rosas had inquiry notice as to the cause of his injury, the Court held summary judgment was improper.
When pursuing a statute of limitations defense, counsel should confirm a well-developed record exists with precise testimony from the plaintiff. Although Rosas’ employer’s attorneys were not responsible for the error in asking Rosas if he knows, in the present tense, the names of the chemicals that he suspected caused his injury, this case provides a cautionary example for anyone seeking to pursue a statute of limitations defense. A simple follow-up question clarifying whether Rosas knew, in the past tense, the names of the chemicals causing his injuries at the time of his hospitalization could have established Rosas had inquiry notice of his injuries more than two years before his complaint was filed and, in turn, preserved the trial court’s summary judgment ruling in favor of Rosas’ employer.
