# RATCLIFF v. AMERICAN HONDA MOTOR CO. INC.

> District Court, M.D. North Carolina · September 27, 2019

URL: https://www.frixlaw.com/law-library/cases/10253446

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** September 27, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JODY RATCLIFF,
Plaintiff,
v. 1:17CV174
AMERICAN HONDA MOTOR CO. INC., □
et al.,
Defendants.

MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on a Motion for Summary Judgment on Statute of
Limitations [Doc. #475] by Defendants Ford Motor Company (Ford), Brenntag Specialties,
Inc. (BSD, and Whittaker, Clark & Daniels Inc. (CD), and a Motion for Summary Judgment
Pursuant to Fed. R. Civ. P. 56 [Doc. #468] by Defendant Honeywell International, Inc.1
With respect to the statute of limitations defense, Defendants contend that the three-
statute of limitations began to run on May 5, 2005, when Plaintiff Jody Ratcliff was first
diagnosed with a form of mesothelioma, and that the statute of limitations therefore expired
several years before she filed the March 1, 2017 Complaint in this case. Plaintiff argues that
the statute of limitations did not accrue until April 2014, which is when she alleges she knew
ot had treason to know that her disease had progressed to another sub-type of mesothelioma.

* Cyprus Amax Minerals Company (Cyprus) originally joined in the Motion for Summary Judgment [Doc. .
#475], but subsequently settled with Plaintiff, and the claims and motions involving Cyprus will be terminated
as moot in light of the Notice of Settlement.

As discussed below, the Court concludes that there are no genuine issues of material fact as
to the statute of limitations, and there is no evidence on which a juty could find that Plaintiffs’
claims in the present case ate timely. Therefore, the Court will recommend that the Statute of
Limitations Motion for Summary Judgment be gtanted and that Defendant Honeywell’s
Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56 be otanted as it relates
Honeywell’s statute of limitations defense.
The Court notes that there ate also several other pending Motions: Defendant Ford
has filed Daubert Motions to exclude the expert opinion testimony of Dr. David Rosner, Dr.
Carlos Bedtossian, and Dr. Arnold Brody, and a related Motion fot Summary Judgment
Pursuant to Rule 56 [Doc. #461, #467, and #471]. Defendant Honeywell has filed a Daubert
Motion to Exclude the Expert Opinion Testimony of Dr. Carlos Bedtossian [Doc. #463].
Defendant WCD has filed Daubert Motions to Exclude Specific Causation Opinions and
Cumulative Exposure Opinion as Evidence of Causation and a related Motion for Summary
Judgment [Doc. #465, #472, and #477]. Defendant BSI has filed a Motion for Partial
Summarty Judgment and a Motion to Bifurcate [Doc. #486 and #491]. As a result of this
Coutt’s recommendation that summary judgment be granted on the statute of limitations, the
Court will recommend that these remaining pending Motions be terminated as moot.
I. EACTS, CLAIMS, AND PROCEDURAL HISTORY

In this case, Plaintiff Jody Ratcliff filed a twelve-count Complaint on March 1, 2017,
against sixty-two (62) defendants alleging injury caused by exposute to asbestos-containing
products. (Compl. [Doc. #1].) Ms. Ratcliff asserts claims of negligence, gross negligence,
inadequate design, breach of watranty, product Hability, premises liability, fraud/false

representation, and conspitacy against a number of automotive repair shops, retailers, and
businesses in the automotive or beauty retail industry. The Complaint divides the Defendants
into vatious groups: the “Friction Defendants,’ the “Talc Defendants,’ the “Retailer
Defendants,” the “Talc Product Retailer Defendants,’ and the “Automobile Repair
Defendants.” Most of the Defendants have settled or otherwise been dismissed, and the
remaining Defendants are Ford, BSI, WCD, and Honeywell.
As the basis for her claims, Plaintiff contends that her father, Oden Ratcliff, worked as
a tool salesman, and that during the summers of 1987-1989, she visited automotive garages
and dealerships alongside her father, that she was a bystander in the garages while brake work
was performed, and that as a result she was exposed to dust from asbestos-containing brakes
and related products. Plaintiff also contends that between 1977 and 2016, she used talc

. products that allegedly contained asbestos, including baby powder, deodorant, and makeup.
Plaintiff began experiencing abdominal symptoms in 2004 and underwent various
imaging and testing, including a diagnostic laparoscopic procedure in 2005. As a result of the
biopsy, she was diagnosed with well-differentiated papillary mesothelioma (““WDPM”) on May
5, 2005, by Dr. Jason Pereira at Vanderbilt University Medical Center. In his deposition in
this case, Dr. Pereira confirmed that Plaintiff had “a form of cancer,” and explained that

? Defendants Ford and Honeywell ate identified as two of the “Friction Defendants,” a group that allegedly
“mined, milled, processed, imported, converted, compounded, designed, manufactured, marketed, supplied,
distributed, sold and/or otherwise placed in the stream of commerce automotive products, materials and/or
equipment containing asbestos to which Plaintiff was directly and indirectly exposed in North Carolina between .
1985 and approximately 2004.” (Compl. 4/9.) BSI and WCD ate identified as two of the “Talc Defendants,”
a ptoup that allegedly “mined, milled, processed, imported, converted, compounded, designed, manufactured,
marketed, supplied, distributed, sold and/or otherwise placed in the stream of commerce asbestos-containing
talc, cosmetic and/or personal hygiene products—including taw and processed talc, makeups, deodorants
‘and/or tampons—that contained asbestos to which Plaintiff was directly and indirectly exposed in North
Carolina and elsewhere between approximately February 14, 1977, and 2016.” (Compl. 10.)

mesothelioma is “a malignancy of the lining of the abdomen or the thorax,” that in Plaintiffs

case the malignancy was of the peritoneal cavity (the lining of the abdomen), and that WOPM
is “one variant” of mesothelioma. (Pereira Dep. at 53-54, 88.89 [Doc. #476-2 at 15, 23-24].)3
Following her diagnosis, Ms. Ratcliff sought a second opinion from specialists at MD
Anderson Cancet Center. (MD Anderson Rep. [Doc. #518-3].) The MD Anderson Report
dated June 20, 2005, reflects that “[iJn most of the atea, the tumor [had] a pattern similar to a
well-differentiated papillary mesothelioma,” but that “invasion into the adipose tissue is seen”
with diagnosis of “Malignant Mesothelioma, Epithelial Type.” (MD Anderson Rep. [Doc.
#518-3].) In her deposition, Plaintiff testified that she did not receive a copy of this Report,
but that she received a call from MD Anderson that confirmed her diagnosis of WDPM. (J.
Ratcliff Dep. Dec. 13, 2016 at 196-198; Feb. 14, 2017 at 236 [Doc. #476-3 at 52-53, 311].)
Dr. Pereira referred Plaintiff to an oncologist, Dr. Carbone. (Pereira Dep. [Doc. #476-
at 62.) Plaintiff confirmed that she saw Dr. Carbone on May 26, 2005, and that Dr. Carbone
said that it was “okay to manage this [by] just following it with CAT scans [and] if or when
symptoms come back, then treating it at that point,” and that at some point she would need
“treatment ot surgety.” (J. Ratcliff Dep. Feb. 15, 2017 at 325-27 [Doc. #476-3 at 243-44].)
Plaintiff also testified that she remembered Dr. Carbone saying, “welcome to the league of
cancer sutvivors.” (J. Ratcliff Dep. Feb. 15, 2017 at 325 [Doc. #476-3 at 243].)

3 One of Plaintiff's later treating physicians, Dr. Edwatd Levine, explained that well-differentiated papillary
mesothelioma is “a malignant tumor atising from the mesothelium, which is the peritoneal [abdominal] lining.
... That malignant tumor, it comes in several varieties. Well-differentiated refers to the histological grade and
papillaty desctibes what it looks like under the mictoscope.” (Levine Dep. at 20-21 [Doc. #476-5 at 8].)

.

At the time of her diagnosis in 2005, Ms. Ratcliff worked at Vanderbilt University
Medical Center as an ICU Nurse. (J. Ratcliff Dep. Dec. 13, 2016 at 33 [Doc. #476-3 at 11].)
Following the diagnosis, Plaintiff performed research regarding her condition, using the
internet and publication databases that she had access to as part of her position as a nurse.
Plaintiff recalled that researching WDPM led her to “general mesothelioma sites that had

_ discussion about asbestos and causes.” (J. Ratcliff Dep. Dec. 14, 2016 at 284 [Doc. #476-3 at
76].) She stated that she conducted an internet search “to try to find information about
WDPM,” and that “mesothelioma and asbestos” was “one of the bigger hits.” (See J. Ratcliff
Dep. Dec. 20, 2016 at 566 [Doc. #476-3 at 148] .) Plaintiff also recalled that she was directed
to a telephone number during her research, that she called the number to get more information
about her condition, and that the number directed her to an attorney handling asbestos-
exposute mesothelioma cases. (See J. Ratcliff Dep. Dec. 14, 2016 at 288; Dec. 20, 2016 at
567-568 [Doc. #476-3 at 77, 149].) Plaintiff discussed her case with someone at the number,

_ according to Plaintiff, they told her that she did not have a case. (Id.)
Ms. Ratcliff moved to North Carolina soon thereafter, and was followed with frequent
CT scans at Duke Medical Center. She later moved to Seattle, Washington. In 2009 and 2010,
she began to expetience mote symptoms, including fluid in her abdomen (ascites) and an
increase in the tumor bulk in her abdomen. Sometime in 2009 or 2010, she contacted another
attorney to discuss WDPM and whether there was a cause of action for asbestos exposute. (J.
Ratcliff Dep. Dec. 13, 2016 at 103-104; Dec. 23, 2016 at 569; Feb, 14, 2017 at 244-45 [Doc.
#476-3 at 29, 149, 313].) However, according to Plaintiff, that attorney also told her that she
did not have a case. (d.)

In April 2010, Ms. Ratcliff went to see Dr. Thomas Malpass, an oncologist at Virginia
Mason Medical Center (“VMMC’”) in Seattle. Dr. Malpass’ Report reflects a diagnosis of

“Indolent primary peritoneal malignancy (well differentiated papillary mesothelioma).”
(Levine Dep. Ex. 3 [Doc. #476-5 at 32-34].) Dr. Malpass referred Ms. Ratcliff to Dr. Edward

Levine at Wake Forest Baptist Medical Center. (Gee Levine Dep. Ex. 2 [Doc. #476-5 at 28-
31].) At the initial evaluation on October 15, 2010, Dr. Levine noted that Ms. Ratcliff was
being seen for “evaluation of peritoneal mesotheliorna with malignant ascites.”’ (Levine Dep.
Ex. 2 [Doc. #476-5 at 28-30].) Dr. Levine noted that Ms. Ratliff had been diagnosed with
petitoneal mesothelioma in 2005, had been followed with frequent imaging, had been relatively
asymptomatic until eatly in 2010 when she started developing abdominal distention, had
ptoceeded with procedures (paracentesis) in June and September 2010 to remove fluid from
her abdomen, was continuing to expetience symptoms, and was now inquiring about
cytoreductive surgety® and intraperitoneal chemotherapy.° (Levine Dep. Ex. 2 [Doc. #476-5
at 28-30].) Dr. Levine confirmed a diagnosis of peritoneal mesothelioma and performed
cytoreductive sutgety with intraperitoneal chemotherapy in November 2010. (Levine Dep. at
37, 43-44 [Doc. HA76-5 at 12, 14]; Operative Report, Levine Dep. Ex. 6 [Doc. #476-5 at 38-

41].) The surgical pathology report following the November 2010 surgery reflects a diagnosis

“Dr. Levine explained that acites refers to fluid accumulating in PlaintifPs abdomen. (Levine Dep. at 23
[Doc. #476-5 at 9].)
5 Cytoreductive surgery is an operation to reduce the volume ot bulk of a tumor. (Levine Dep. at 31-32 Dee.
#476-5 at 11],)
6 Hyperthermic intraperitoneal chemotherapy refers to chemotherapy that is delivered ditectly into the
i at an elevated fempesatate during a tumor reduction operation. (Levine Dep. at 32 [Doc. #476-5 at

of well-differentiated papillary mesothelioma (Pl. Resp. Ex. 6 [Doc. #518-6 at 3]), and the
cytology report of the fluid reflects “malignant mesothelioma” (Levine Dep. Ex. 7 [Doc.
#476-5 at 42].) Ms. Ratcliff attended a follow-up appointment with Dr. Levine on December
2, 2010, and was directed to tetutn for regular follow-up. (Levine Dep. at 44-45 and Ex. 8
[Doc. #476-5 at 14, 43].) In her deposition, Mr. Ratcliff testified that when she had the 2010
sutgety, Dr. Levine told her that she “had a lot of tumor bulk, and that he thought maybe I
had about a year to live.” (J. Ratcliff Dep. Dec. 20, 2016 at 572 [Doc. #476-3 at 150].)
Ms. Ratcliff continued to be seen by Dr. Malpass at VMMC in Seattle, and a record
from VMMC teflects that Ms. Ratcliff was seen oti Novembet 8, 2013, with “well

differentiated papillary mesothelioma status post radical debulking and intraperitoneal
cisplatin done in November 2010, now with progressive and symptomatic disease.” (Malpass
Recotd [Doc. #476-5 at 46].) Dr. Malpass sent the record to Dr. Levine at Wake Forest to
discuss whether a second surgety should be performed. Dr. Levine met with Ms. Ratcliff on
December 27, 2013, and scheduled the second surgery. On March 3, 2014, Ms. Ratcliff
underwent a second cytoreductive surgery with hyperthermic intraperitoneal chemotherapy.
The surgical pathology report for that surgery reflects “Epithelioid mesothelioma.” (Levine
Dep. Ex. 14 [Doc. #476-5 at 60].) In his deposition, Dr. Levine explained that epithelioid
mesothelioma is a “subtype of peritoneal mesothelioma” that is “[m]ore aggressive than the
well-differentiated papillary type” but “is still peritoneal mesothelioma.” (Levine Dep. at 57-
58 [Doc. #476-5 at 17-18].)
Ms. Ratcliff was then referred to Dr. Hedy Kindler of the University of Chicago

Medical Center. The April 30, 2014 progress note by Dr. Kindler reflects that Ms. Ratcliff

.

had “tecuttent petitoneal epithelial mesothelioma, previously characterized as well
differentiated papillary mesothelioma (WDPM) now chatactetized as epithelioid type...”
(Kindler Diagnosis History [Doc. #518-7 at 5].) Ms. Ratcliff returned to VMMC’s outpatient
clinic on May 28, 2014. At this time, Dr. Gurkamal Chatta from VMMC noted that Dr.
Kindlet’s review of the pathology from Ms. Ratcliff's March 3, 2014 surgery revealed
“transitional malignancy from well-differentiated papillary mesothelioma to an epithelioid
mesothelioma.” (See Pl. Resp, Ex. 9 [Doc. #518-9 at 2].) .

On July 26, 2016, Ms. Ratcliff filed suit in Washington state court for damages
connected to her diagnosis of mesothelioma (Case No. 16-2-18128-7 SEA). Plaintiff later
elected to take a voluntary dismissal of that case. (Defs. Reply [Doc. #542] at 3 n.2). Plaintiff
filed her initial Complaint in the instant matter on Match 1, 2017. In the present Motions □□□
Summary Judgement [Doc. #468 & 475], the remaining Defendants contend, cuter ala, that
Plaintiff's Complaint was filed after the applicable statute of limitations period had expired.
STANDARD OF REVIEW
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
appropriate “Gf the pleadings, depositions, answets to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). A genuine issue of fact exists if the evidence presented
could lead a reasonable fact-findet to return a verdict in favor of the non-moving patty. Id. at
255. The patty seeking summaty judgment bears the initial burden of coming forward and

demonsttating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477

USS. 317, 323 (1986). Once the moving party has met its burden, the nonmoving patty must
then present specific facts demonstrating a genuine issue of material fact which requires trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

_ When making a summaty judgment determination, the court must view the evidence
and draw all reasonable inferences from the evidence in the light most favorable to the
nonmoving patty. Anderson, 477 U.S. at 247. However, the party opposing summaty
judgment may not rest on mete allegations or denials, and the coutt need not consider
“unsupported assettions” or “self-serving opinions without objective corroboration.” Evans
v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996); see also Andetson, 477
U.S. at 248-49. Moreover, a mete scintilla of evidence supporting the non-moving party’s case
is insufficient to defeat a motion for summaty judgment. See, e.g., Shaw v. Stroud, 13 F.3d
791, 798 (4th Cir. 1994) (citing Anderson, 477 U.S. at 248).
With respect to a statute of limitations defense, “[o]nce a defendant has properly
pleaded the statute of limitations, the burden is then placed upon the plaintiff to offer a
forecast of evidence showing that the action was instituted within the permissible period after
_the accrual of the cause of action.” Faulise v. Smithkline Beecham Corp., 5:05CV 200, 2006
WL 2229001, at *4 (W.D.N.C. Aug. 2, 2006) (internal quotations omitted). To the extent that
the statute of limitations is raised at summary judgment, “[i]n general the question of whether □

a cause of action is batted by the statute of limitations is a mixed question of law and fact,”
but “[w]here the statute of limitations is properly pleaded, and the facts with reference to it
ate not in conflict, the issue is a matter of law, and summaty judgment is appropriate.” Id.
(internal quotations omitted).

? .

III. DISCUSSION
A. The Applicable Statute of Limitations
Here, the parties do not dispute that the statute of limitations in this case is set out in
Section 1-52(5) of the North Catolina General Statutes, which provides that an individual has
three yeats to commence an action for injury to the person. N.C. Gen. Stat. § 1-52(5). The
patties also do not dispute that Plaintiff filed this suit on March 1, 2017, and that the claim is
untimely if the statute of limitations began to run before March 1, 2014. The issue is therefore
whether Plaintiff has presented a genuine issue of material fact to support a finding that her
claim accrued after March 1, 2014.

For cases involving latent injury, North Carolina General Statute § 1-52(16) provides
that the three-year statute of limitations for personal injury actions “shall not accrue until
bodily harm to the claimant ... becomes apparent or ought reasonably to have become
appatent to the claimant, whichever event first occurs.” N.C. Gen. Stat. § 1-52(16); Stahle v.
CTS Corp., 817 F.3d 96 (2016). However, for cases involving disease, the North Carolina
Supreme Court has explained that:
A disease presents an intrinsically different kind of claim. Diseases such as
asbestosis, silicosis, and chronic obstructive lung disease normally develop over
long petiods of time after multiple exposures to offending substances which are
thought to be causative agents. It is impossible to identify any particular
exposure as the “first injury.” Indeed, one ot even multiple exposures to an
offending substance in these kinds of diseases may not constitute an injury. The
first identifiable injury occurs when the disease is diagnosed as such, and
at that time it is no longer latent ....

By this treatment of occupational disease claims, the legislature and the Court
have recognized that exposure to disease-causing agent is not itself an injury.
The body is daily bombarded by offending agents. Fortunately, it almost always
10

is capable of defending itself against them and remains healthy until, in a few
cases, the immune system fails and disease occuts. That, in the context of
disease claims, constitutes the first injury. Although persons may have latent
diseases of which they are unawate, it is not possible to say precisely when the
disease first occutted in the body. The only possible point in time from
which to measure the “first injury” in the context of a disease claim is
when the disease is diagnosed. When the disease is diagnosed, it is no
longer latent.
Wilder v. Amatex Corp., 314 N.C. 550, 336 S.E.2d 66 (N.C. 1985) (emphasis added); see also
Dunn v. Pacific Employers Ins. Co., 332 N.C. 129, 132, 418 S.E.2d 645, 647 (N.C. 1992)
(“Section 1-52(16) of the North Carolina General Statutes requires that a personal injuty
action be brought within three years from the date ‘bodily harm to the claimant . . . becomes
appatent or ought reasonably to have become apparent to the claimant, whichever event
occuts first.’ In occupational disease cases, such as the instant case, a cause of action grounded
in negligence accrues when the disease is diagnosed.”); Stahle, 817 F.3d at 110 (“North
Carolina law is settled that disease is not a latent injury; instead, the legal injury and awareness
of that injury occut simultaneously at diagnosis.”’).
Once the clock on the statute of limitations is triggered, subsequent aggravation of the
plaintiffs condition will not alter the date of accrual. See Keith v. U.S. Airways, Inc., 994 □□□
Supp. 692, 695 (M.D.N.C. 1998) (applying North Carolina Law and holding that “Plaintiffs
claims thus accrued no later than when she was diagnosed with her repetitive stress disorders.
Any subsequent aggravation of her condition does not alter the date of accrual.” (citation
omitted)); Faulise, 2006 WL 2229001, at *5 (“Although Plaintiff contends that Ms. Faulise’s
congestive heart failure was not discovered until August 2002, North Carolina law is cleat that
the worsening of Ms. Faulise’s condition does not create a new limitations period. In sum, as

soon as plaintiff's injury became apparent, or ought reasonably to have become apparent, [het]
11

cause of action accrued. The fact that further damage which plaintiff did not expect was
discoveted does not bring about a new cause of action, it metely aggravates the original injury.”
Gnternal quotation omitted); see also Hussey v. Montgomery, 114 N.C. App. 223, 227-28, 441
S.E.2d 577, 579 (holding that where Defendant fell and injured his head as a result of
Defendant’s negligence, the statute of limitations began to tun on that date, even though
Defendant was not awate of the extent of his injuries including brain damage, and even though
he was told by hospital petsonnel that there would not be brain damage); Robertson v. City of
High Point, 129 N.C. App. 88, 91, 497 S.E.2d 300, 302 (N.C. Ct. App. 1998) (Additionally,
N.C. Gen. Stat. § 1-52(16) provides that an action for physical damage to claimant’s property
shall not accrue until it becomes apparent ot ought reasonably to have become apparent to
claimant. The ptimaty purpose of N.C. Gen. Stat. § 1-52(16) is that it is intended to apply to
plaintiffs with latent injuries. However, where plaintiffs clearly know more than three years
prior to bringing suit about damages, yet take no legal action until the statute of limitations
has run, the fact that further damage is caused does not bring about a new cause of action.”
(internal citation omitted).

B. Date of Diagnosis
It is undisputed that Ms. Ratcliff was diagnosed with well-differentiated papillary
mesothelioma on May 5, 2005. Ms. Ratcliff nevertheless contends that there is a genuine issue
of material fact because there is conflicting evidence regarding her exact diagnosis in 2005,
that is, whether her mesothelioma was well-differentiated papillary mesothelioma or diffuse
epithelioid mesothelioma. Plaintiff also contends that while she was informed of the diagnosis
of well-differentiated papillary mesothelioma in 2005, she did not know of the diagnosis of

□ 12

diffuse epithelioid mesothelioma until 2014. However, these contentions would only be
material issues if well-differentiated papillary mesothelioma and diffuse epithelioid
mesothelioma ate separate and distinct illnesses. Plaintiff has not presented any evidence on
which a jury could make that finding, and as explained below, all of the evidence teflects that
WDPM and diffuse epithelioid mesothelioma ate both subtypes of peritoneal mesothelioma.

Dr. Pereita, who diagnosed Plaintiff in 2005, explained in his deposition that Plaintiff
had “a form of cancer,” that mesothelioma is “a malignancy of the lining of the abdomen or
the thorax,” and that WDPM is “one variant” of mesothelioma. (Pereira Dep. at 53-54, 88-89
[Doc. #476-2 at 15, 23-24].) Dr. Pereira further explained that well-differentiated papillary
mesothelioma is a “mote benign variant” with “better prognosis” than epithelial type, but both
ate malignant cancerous conditions. (Pereita Dep. at 75-76 [Doc. #476-2 at 20].)
Similarly, the April 2010 report of Dr. Malpass, Plaintiffs oncologist in Seattle, reflects

a diagnosis of “Indolent primaty peritoneal malignancy (well differentiated papillary
mesothelioma).” (Levine Dep. Ex. 3 [Doc. #476-5 at 34].) Dr. Malpass’ report notes that
Plaintife s diagnosis was a “rate disease,” that management was largely surgical, that Ms.
Ratcliff was following a “typical pattern,” and that “[t]hese patients can deteriorate into a more
ageressive, mote typical mesothelioma pattern and at that point may be benefited by systemic
chemotherapy.” (d.)
After Plaintiff began expétiencing mote symptoms in 2010, including fluid in her
abdomen requiting multiple procedutes, Dr. Levine at Wake Forest began treating Plaintiff

. 13 . □

and performed cytoreductive surgery with intraperitoneal chemotherapy in November 2010.7

She was in the hospital for eight days and was out of work for two months. (J. Ratcliff Dep.
Dec. 13, 2016 at 91-92 [Doc. #476-3 at 26].) In 2014, she underwent a second cytoreductive
surgery with hyperthermic intraperitoneal chemotherapy, and the surgical pathology report for
that surgery teflects “Epithelioid mesothelioma,” which Dr. Levine explained is a “subtype of
peritoneal mesothelioma” that is “[m]ore aggressive than the well-differentiated papillary type”
but “is still peritoneal mesothelioma.” (Levine Dep. at 57-58 [Doc. #476-5 at 17-18].) Dr.
Levine further explained that “[p]eritoneal mesothelioma has several subtypes” and “Tone of
those is the well-differentiated papillary.” (Levine Dep. at 74-75 [Doc. #476-5 at 22].) Dr.
Levine confirmed that well-differentiated papillary mesothelioma “is a malignant condition”
and “isa cancer.” (Levine Dep. at 21 [Doc. #476-5 at 8].) Dr. Levine confirmed that Plaintiffs
diagnosis did not change, that it was still peritoneal mesothelioma, and that only the sub-type
changed from well-differentiated papillary to epithelioid. (Levine Dep. 58-61 [Doc. #476-5 at
18].) Dr. Levine noted that Plaintiffs well-differentiated papillary mesothelioma “progressed,”
teflecting “the malignant process, the growth of uncontrolled or poorly controlled growth of
cells originating in the peritoneum.” (Levine Dep. at 24-25, 28-29 [Doc. #476-5 at 9-10].) Dr.
Levine explained that “accumulations of mutations within the cells” caused the histological
sub-type to change. (Levine Dep. at 66 [Doc. #476-5 at 20].) Other treatment records
similarly reflect that PlaintitP WDPM ptogtessed of transitioned into diffuse epithelioid

7 PlaintifPs expett Dr. Bedrossian desctibed this as “the thetapy of choice fot peritoneal malignant
mesothelioma.” (Bedrossian Report at 17 [Doc. #476-8 at 18].) Dr. Levine explained that this procedure is
performed on patients with “petitoneal metastases ot petitoneal spread of an intra-abdominal malignancy.”
(Levine Dep. at 32-33 [Doc. #476-5 at 11].)
14

mesothelioma. (See, e.g., VMMC Record of Dr. Kinder evaluation [Doc. #518-9 at 2]; Dr.
Malpass Record [Doc. #476-5 at 46].) Plaintiff herself contends that her WDPM
“transformed,” “transitioned,” or “progressed” into diffuse epithelioid malignant
mesothelioma. (Pl. Resp. [Doc. #518] at 3, 9, 10, 13).
PlaintifPs expert Dr. Bedrossian stmilarly notes that “ja 2010, you begin to see it
transition between well-differentiated papillary mesothelioma and diffuse malignant peritoneal
mesothelioma . . . [a]nd then in the last specimen in 2014, you see frank invasion ... So you
see a sequence of progression under the microscope.” (Bedrossian Dep. Jan. 16, 2018 at 28
[Doc. #476-7 at 9].) Dr. Bedrossian noted that “the lesion is the same,” and that it was
“transitioning” to be more invasive over time. (Bedrossian Dep. March 6, 2019 at 33 [Doc.
#476-4 at 10].) Dr. Bedrossian explained that he believes that “from the start, [WDPM] is a
low malignant condition, a condition of low malignancy ... but it’s not fully manifest. And

as it progresses, it becomes more and more evident that it becomes invasive.” (Bedtossian
Dep. Jan. 16, 2018 at 29 [Doc. #476-7 at 9].) In his report, Dr. Bedrossian explained that
Plaintiff's “case of WDPM is pathologically considered a neoplasm with a low grade malignant
potential, referred to also as borderline mesothelioma, and an attenuated malignant tumor.”
(Bedrossian Report at 7-8 [Doc. #476-8 at 8-9]). Dr. Bedtossian also noted that “this
condition is part of the spectrum of asbestos-related mesothelioma” which is sometimes
“picked up early,” as in Plaintiffs case. (Bedrossian Dep. March 6, 2019 at 42-43 [Doc. #476-
4 at 12].)
A case in this District previously considered a similar issue in 2008 in Stromberg v.
Ashland, No. 1:07-CV-332, 2008 WL 11355372 at *1 (M.D.N.C. July 16, 2008). In that case,

15

the plaintiffs filed suit on April 25, 2007, alleging that Donald Stromberg was exposed to
vatious solvents which caused his diagnosis of myelofibrosis on September 16, 2004, and
rendered him disabled. About eight months after the commencement of the action, Mr.
Stromberg developed and was diagnosed with acute myelogenous leukemia. Mr. Stromberg
died from acute myelogenous leukemia in January 2008. Following Mr. Stromberg’s death, an
amended complaint was filed to assert a claim for acute myelogenous leukemia and for
wrongful death, and to add ExxonMobil as a defendant. Id. ExxonMobil moved to dismiss
the amended complaint as ExxonMobil had not been named as a defendant within three years
of Mr. Stromberg being diagnosed with myelofibrosis. In opposition to ExxonMobil’s motion
to dismiss, the plaintiff argued that the statute of limitations accrued in or about December
2007 when Mr. Stromberg was diagnosed with acute myelogenous leukemia, which is the
disease that ultimately lead to his death. Id. at The plaintiff argued that acute myelogenous
leukemia was a “new disease” that was sepatate and distinct from myelofibrosis and that
allegedly manifested from the same chemical exposutes. Id. The Court rejected the plaintiffs
argument that the statute of limitations did not accrue until Mr. Stromberg’s diagnosis of acute
myelogenous leukemia was diagnosed, given the plaintiffs characterization that the
myelofibrosis “developed into” and “transferred into” acute myelogenous leukemia. Id.
Similarly in this case, Ms. Ratcliff appeats to suggest shat the diagnosis she received in
Match 2014 of diffuse epithelioid malignant mesothelioma was a diagnosis of a new disease,
and therefore the statute of limitations could not accrue until she recetved that diagnosis.
However, this atgument ignores the uncontrovetted evidence, from her own treating
physicians and her own expert, that diffuse epithelioid malignant mesothelioma was not a

, 16

diagnosis of a new illness, but rather reflected a progression of her peritoneal mesothelioma
from one sub-type to another. Ms. Ratcliff does not argue that she continues to suffer from
WDP®M alongside diffuse epithelioid mesothelioma, and has not presented any evidence to
support such a contention. In addition, the record reflects that while Plaintiff's condition
initially progressed slowly, she was awate of the diagnosis in 2005, knew that she would need
treatment in the future and would need to receive frequent scans and monitoring, and tecalled
her doctor welcoming her “to the league of cancer survivors.” By 2010, she was experiencing
significant symptoms, requiting multiple ptocedutes to drain fluid from her abdomen, as well

as sutgery and intraperitoneal chemotherapy. She spent 8 days in the hospital and several
months recovering. She recalls Dr. Levine telling her in 2010 that she likely had one year to
live. (J. Ratcliff Dep. Dec. 20, 2016 at 572-573 [Doc. #476-3 at 150].)® She also testified
that she understood that she had cancer cells in her abdomen as part of the WDPM diagnosis,
and that the 2010 intraperitoneal chemotherapy was designed to kill cancer cells remaining
after the tumor was temoved. (J. Ratcliff Dep. Dec. 14, 2016 at 279-281 [Doc. #476-3 at 75-
76].) Thete was no new ot different disease in 2014, just a progression of het cancer, and
Plaintiff presents no basis to conclude that progression of a prior cancer diagnosis would te-
trigger the statute of limitations.?

® The Court also notes that Dr. Malpas’ recotds from 2013 reflect that her previously tndolent disease had
become symptomatic requiring surgery in 2010 and then with continuing symptoms leading to a referral for
further surgery in 2014, all prior to March 1, 2014. In addition, on February 26, 2014, Plaintiff signed a “North
Carolina Baptist Hospital Informed Consent — Request for Operation” prior to undergoing her cytoreductive
sutgety which expressly stated, “I have been told by.my physician that I have been diagnosed as having the
following condition: peritoneal mesothelioma” (Levine Dep. at 54, Ex. 12 [Doc. #476-5 at 17, 53].) As such,
Plaintiff herself acknowledged this diagnosis by February 26, 2014, and even using this date, Plaintiff's
Complaint was untimely filed.
° The Court notes that some states, including Virginia, would not recognize a new accrual of the statute of
limitations even if there were a sepatate and distinct diagnosis. See Joyce v. A.C. and S., Inc., 785 F.2d 1200
17

C. Date of the Discovery of Cause □
Plaintiff further contends that thete is a genuine issue of material fact with respect to □

whether it was reasonable that she should have suspected prior to 2014 that her mesothelioma

was caused by exposute to asbestos. Plaintiff contends that summary judgment is improper
because a genuine question of fact exists as to “whether or not a reasonable person would
suspect a wrongful cause under the same citcumstances.” (Pl Resp. [Doc. #518] at 14).
Plaintiff contends that it was not until her second cytoreduction surgery on March 3, 2014,
that she became awate that she was injuted in the legal sense. (See Pl. Resp. [Doc. #518 at
20]). In support of this contention, Plaintiff points to Black v. Littlejohn, in which the N otth
Carolina Supreme Court determined that the discovery rule should be interpreted broadly so
that the statute of limitations “does not begin to run until plaintiff discovers, ot in the exercise
of reasonable cate, should have discovered, that he was injured as a result of defendant’s
wrongdoing.” Black 312 N.C. 626, 642, 325 S.E.2d 469, 482 (1985); see also Markley v. Sulzer
Metco, No. 4:11CV139, 2012 WL 13026999, at *1 (E.D.N.C. Feb. 28, 2012) (Under N.C.
Gen. Stat. 1-52(16), plaintifPs cause of action did not accrue, and therefore, the statute of
limitations did not begin to run, until plaintiff should reasonably have discovered not only the
existence of his illness, but also the cause of his illness.”).
In the instant matter, Plaintiff was diagnosed with mesothelioma 2005. According to
Plaintiffs expert witness Dr. Bedtossian, the link between low-grade asbestos exposure and

(4th Cir. 1985) (concluding that in an action for personal injury under Virginia law “there is but a single,
indivisible cause of action for all injuries sustained,” and the diagnosis of a sepatate and distinct illness would
not ttigger a new statute of limitations). In the present case, as in Stromberg, the Court concludes that even if
a diagnosis of a separate and distinct disease could trigger a new statute of limitations in North Carolina, Plaintiff
here has not presented any evidence on which a jury could find that the progression of her peritoneal
mesothelioma from one sub-type to another represented a separate and distinct disease.
18

peritoneal mesothelioma was fully established in 2005. (See Bedrtossian Report at 16 [Doc.
#476-8 at 17]; Bedrossian Dep. Jan. 16, 2018 at 46-47 [Doc. #476-7 at 14].) Dr. Bedrossian
also noted that “pathologists have designated mesothelioma a ‘signal tumor’ for asbestos
exposute, i.e, a neoplasm caused almost exclustvely by asbestos exposute.” (Bedrossian Report
at 8 [Doc. #476-8 at 9] Bedrossian Dep. Match 6, 2019 at 263, 269-72 [Doc. #476-4 at 67,
69].) Plaintiff also cites to numerous articles and reports to support her contention that there
was a well-known causal link between asbestos exposute and mesothelioma, and to the extent
that literature exists which suggests a causal link between asbestos exposute and peritoneal
mesothelioma, these articles and reports were available at the time of Ms. Ratcliff's 2005
diagnosis.!° .
Indeed, Plaintiff acknowledges that after her initial diagnosis of WDPM in 2005, she
conducted research and was led to mesothelioma sites that had “discussions about asbestos
and causes.” (J. Ratcliff Dep. Dec. 14, 2016 at 284 [Doc. #476-3 at 76]). She called a telephone
number for information regarding her disease, which funneled her to a law firm handling

* Plaintiff contends that “very limited scientific literature discussing WDPM existed prior to 2005 and typically
classified WDPM as ‘benign.”’ (PI. Resp. [Doc. #518] at 12.) In support of this assertion, Plaintiff cites to the
World Health Organization 2004 Classification of Tumouts, specifically the chapter for paratesticular
structures, which is found in the 2004 edition of WHO Classification of Tumours: Pathology and Genetics of
Tumouts of the Urinary System and Male Genital Organs. Ud.) However, it is uncleat why Plaintiff points to
the classification of tumors of the male genital organs. As noted by Defendants, the WHO chapter for tumors
of the ovaty and peritoneum found in the 2003 edition of WHO Classification of Tumours: Pathology and
Genetics of Tumouts of the Breast and Female Genital Organs actually provides that peritoneal malignant
mesothelioma may be divided into “diffuse, well differentiated papillary and deciduoid types” and that “well
differentiated papillary, diffuse epithelial and deciduoid mesotheliomas appear clinically related to asbestos
exposure in some cases.” (WORLD HEALTH ORG., WHO CLASSIFICATION OF TUMOURS: PATHOLOGY AND
GENETICS OF TUMOURS OF THE BREAST:-AND FEMALE GENITAL ORGANS 197-99 (T avassol, F. & Devilee, P.
eds., 2003) [Doc. #476-6 at 2].) Plaintiff also cites to various other studies and publications, but Plaintiff does
not contend that she saw ot relied on any of these studies or publications, nor does Plaintiff point to any expert
testimony with respect to those studies.

19

asbestos-exposute mesothelioma cases. (J. Ratcliff Dep. Dec. 14, 2016 at 288 [Doc. #476-3 at
Plaintiff continued to research and in 2009 or 2010 she reached out to another attorney
to discuss WDPM to “just see[ ] if there was any case as fat as asbestos exposure and WDPM.”
J. Ratcliff Dep. Feb. 14, 2017 at 244-245 [Doc. #476-3 at 313].) Plaintiff contends that in
both encounters, the attorneys declined to take her case. However, as Defendants note, the
statute of limitations is not tolled while a plaintiff looks for a lawyer who might be willing to
take the case. Here, Plaintiff clearly had cause to suspect that her condition might be caused
by asbestos — indeed, her internet searches about her disease led her to a law firm handling
asbestos cases, and she later sought out a law firm to discuss the case."
Plaintiff nevertheless contends that she was not reasonably on notice of the cause of
het mesothelioma, given that her treating physicians did not inform her that her disease was
telated to asbestos. exposute.!* However, as noted by Defendants, Plaintiffs treating
physicians still do not believe her mesothelioma was caused by asbestos exposure, based on
the natute of the presentation and lack of any occupational exposure. (See, e.g., Levine Dep.
at 26, 86-88 [Doc. #476-5 at 10, 25].) The fact that Plaintiff's doctors do not believe that her □

™ In addition, the record reflects that Plaintiff also sought out medical experts in peritoneal mesothelioma. In
this regard, Defendants point to an October 4, 2010 e-mail from Plaintiffs aunt to Plaintiff, sending Plaintiff a
list of peritoneal mesothelioma specialists including Dr. Levine. (E-mail dated October 14, 2010 [Doc. #476-
9].) In the e-mail, Plaintiffs aunt notes that this is a “list compiled by National Institutes of Health and the
National Cancer Institute — top peritoneal meso docs in the nation — sent to me by asbestos center in florida.”
(E-mail dated October 14, 2010 [Doc. #476-9].) Thus, by 2010, Plaintiff was sufficiently on notice of the link
between her disease and asbestos to seek out specialists in peritoneal mesothelioma compiled by an “asbestos
center” in Florida.
Plaintiffs Brief asserts that Plaintiffs treating physicians repeatedly advised her that her mesothelioma was
not caused by asbestos. (Pl. Resp. [Doc. #518] at 2, 14, 18.) However, the record actually reflects that Plaintiff
does not recall ever discussing asbestos with her treating physicians. (J. Ratcliff Dep. Dec. 13, 2016 at 32, 35-
36, 157-159, 161, 164, 197-198; Dec. 14, 2016 at 288; Feb. 15, 2017 at 326-328; Feb. 14, 2017 at 237; Sept. 20,
2018 at 169 [Doc. #476-3 at 11, 12, 42-44, 52-53, 77, 244, 311, 357].)

disease was caused by asbestos exposute, in 2005 or now, does not mean that the statute of
limitations has not begun to run. Similarly, Plaintiff contends that it is unteasonable to find
that she should have been on notice of the link to asbestos, given that Defendant’s experts
opine that Plaintiffs mesothelioma was not caused by asbestos exposure. However, the
statute of limitations is not stayed until all experts agree on causation, or until causation can
be ptoved to unanimous certainty. The fact that Defendants dispute that Plaintiffs condition

was caused by asbestos exposute does not preclude the statute of limitations from running.
Indeed, it appears that under Plaintiff's view, the statute of limitations has still not begun to

run, and would not run until there was no dispute regarding the causation of her disease.
The Coutt also notes that Plaintiffs expert Dr. Bedrossian does not provide any
support for her statute of limitation contentions. Plaintiff herself states that Dr. Bedrossian’s
opinions ate “unrelated to Plaintiffs knowledge of her diagnoses, its relationship with
asbestos, ot notice of a potential claim against Defendants prior to filing the within action.”
(PL. Br. at 8 [Doc. #518].) Nevertheless, it is notable that Dr. Bedrossian opines that Plaintiffs
WDPM was caused by het exposute to asbestos, and Dr. Bedtossian explained that Plaintiffs
WDPM and epithelioid mesothelioma were “the same lesion,” caused by asbestos exposure.
(Bedrossian Report at 17 [Doc. #476-8 at 18]; Bedrossian Dep. Match 6, 2019 at 33 [Doc.
#476-4 at 10].) As such, Plaintiff is not arguing that only her epithelioid mesothelioma was
caused by asbestos exposute, ot that het WDPM was not caused by ot linked to asbestos

21

exposure.43 Thus, her theory of causation is the same as to both WDPM and epithelioid
mesothelioma.
Ultimately, Plaintiff has not presented any evidence to create a genuine issue of material
fact that would affect the statute of limitations determination, and there is no basis on which

a teasonable jury could conclude that her claim did not accrue until after Match 1, 2014.
D. Washington Case
Finally, Plaintiff contends that in her prior state case, which she filed in Washington
State and then voluntarily dismissed, the court found that there were genuine issues of material
fact precluding summaty judgment on the statute of limitations defense. However, this
contention does not fairly convey the status of the state court’s determination at the time of
Plaintiff's voluntary dismissal.
In support of her contention, Plaintiff offers a partial transcript of an August 18, 2017,
hearing on motions for summary judgment in her Washington State case (see Transcript [Doc.
##518-25]), where the judge stated that the medical record was “ambiguous” as to whether
there was an association between WDPM and asbestos, thus potentially creating an issue of
fact on whether a reasonable person would have been on notice to suspect a wrongful cause.
(PI. Resp. [Doc. #518] at 14). However, teview of that statement in context reflects that when
the court made that statement, its understanding was that Ms. Ratcliffs argument was that

With respect to causation, Dr. Bedrossian opines that “WDPM appeats to belong squarely in the category of
asbestos-induced neoplastic proliferations, occupying a less aggressive position spectrum of malignancy than a
fully developed malignant mesothelioma,” and “Ms. Ratcliff developed WDPM and epithelioid malignant □
mesothelioma from the inhalation of asbestos.” (Bedtossian Report at 15, 17 [Doc. #476-8 at 16, 18].) As
noted above, Defendants have filed Daubert motions seeking to exclude Dr. Bedrossian’s opinions on
causation. The Court need not resolve those issues because even if Dr. Bedtossian’s opinions ate considered,
Plaintiff's claims are barred by the statute of limitations.
| 22

WDPM and malignant mesothelioma wete separate and distinct diseases, and that WDPM

was not caused by asbestos but malignant mesothelioma was a sepatate disease caused by
asbestos and not diagnosed in Plaintiff until 2014. Notably, at a later Februaty 8, 2018,
summaty judgment motion heating, after receiving clarification that Ms. Ratcliff was arguing
that her WDPM was caused by asbestos, the judge stated that Plaintiff's new position on .
causation supported the defendant’s motion for summary judgment on statute of limitations
grounds. (Washington State Ct. Sum. J. Hr’g Tr. at 58-61 [Doc. #476-11 at 60-63).
Specifically, the judge ‘stated:
Well, you’te making my job very easy because I’m going to grant defendant’s
motion on summaty judgment on statute of limitations .... I mean, we have
to be consistent here, Counsel, and you walked into my courtroom seven _
months ago and said, “WDPM is not related to asbestos. Thete’s no way that
she could have known that WDPM was asbestos telated. She developed
something which was later asbestos related.” And now you're telling me
something different and ’m — you know, I’ve done a lot of reading, but ’m
happy to grant the defendants’ motion on summary — on statute of limitations
at this time. : .
(id.) Thus, at the heating in February 2018, the coutt clarified that given Plaintiffs position
that her WDPM was caused by asbestos exposure, the three-year statute of limitations had

run. (id.) Plaintiff took a voluntary dismissal in that case before any further order was entered.
Therefore, Plaintiffs citation to the Washington State case actually supports Defendants’
position that the statute of limitations bats Plaintiffs claims.
IV. CONCLUSION -

IT IS THEREFORE RECOMMENDED that Defendants’ Statute of Limitations
Motion for Summary Judgment [Doc. #475] be GRANTED and Honeywell’s Motion for

23

Summaty Judgment Pursuant to Fed. R. Civ. P. 56 [Doc. #468] be GRANTED as it relates
to Defendant’s statute of limitations defense.
Il’ IS FURTHER RECOMMENDED that Defendant Ford’s Daubert Motions to
Exclude the expert opinion testimony of Dr. David Rosner, Dr. Carlos Bedrossian, and Dr.
Arnold Brody and Motion for Summary Judgment pursuant to Rule 56 [Doc. #461, #467,
and #471]; Defendant Honeywell’s Daubert Motion to Exclude the expert opinion testimony
of Dr. Carlos Bedrossian [Doc. #463]; Defendant WCD’s Daubert Motions to Exclude
Specific Causation Opinions and Cumulative Exposure Opinion as Evidence of Causation
and Motion for Summaty Judgment [Doc. #465, #472, and #477]; and Defendant BSI’s
Motion for Partial Summary Judgment and Motion to Bifurcate [Doc. #486 and #491] be
TERMINATED as MOOT. .
This, the 27th day of September, 2019.
__/s/ Joi Blizabeth Peake
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253446. Public record. Not legal advice.