                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2009-CA-00320-SCT

LINCOLN ELECTRIC COMPANY AND THE
ESAB GROUP, INC.

v.

STANLEY MCLEMORE


DATE OF JUDGMENT:                        11/26/2008
TRIAL JUDGE:                             HON. LAMAR PICKARD
COURT FROM WHICH APPEALED:               COPIAH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                MICHAEL W. ULMER
                                         JAMES JOSEPH CRONGEYER, JR.
                                         HUGH RUSTON COMLEY
                                         JAMES MATTHEW TYRONE
                                         MARK C. CARROLL
                                         R. DAVID KAUFMAN
                                         M. PATRICK MCDOWELL
ATTORNEYS FOR APPELLEE:                  JAMES D. SHANNON
                                         JAMIE H. EDWARDS
                                         JOE ROBERT NORTON, IV
                                         JOHN E. HERRICK
                                         ELIZABETH C. WARD
NATURE OF THE CASE:                      CIVIL - PERSONAL INJURY
DISPOSITION:                             REVERSED AND RENDERED - 12/09/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      EN BANC.

      CHANDLER, JUSTICE, FOR THE COURT:

¶1.   This case involves a welder’s claim of product liability and failure to warn against

Lincoln Electric Company (Lincoln) and the ESAB Group, Inc. (ESAB), manufacturers of
welding rods (“Defendants”), for exposure to harmful welding fumes that resulted in his

eventual diagnosis of manganism, a neurological disease caused by high exposure to

manganese. The plaintiff, Stanley McLemore, alleged that he had used the Defendants’ rods,

which contained manganese, to weld materials together.

¶2.    McLemore filed a complaint in the Circuit Court of Copiah County on November 14,

2005. An amended complaint followed on March 3, 2006. In April 2007, the Defendants

filed a motion for summary judgment, claiming that McLemore had filed suit outside the

three-year statute of limitations. The trial court denied the motion for summary judgment.

The Defendants also filed a motion to exclude the expert testimony of Dr. Michael Swash,

which the trial court denied.

¶3.    The matter proceeded to trial on November 6, 2008. A jury returned a verdict in favor

of McLemore finding the Defendants liable and awarding McLemore $1,855,000. The

Defendants filed post-trial motions for judgment notwithstanding the verdict (JNOV) or, in

the alternative, for a new trial. Following the trial court’s denial of the motions, the

Defendants filed a notice of appeal raising three issues:

       I.     Whether the trial court improperly admitted McLemore’s medical
              expert’s diagnosis.

       II.    Whether McLemore proved that each Defendant’s products were a
              substantial factor in causing his injury.

       III.   Whether McLemore’s claims were barred by the statute of limitations,
              and whether the form of the verdict misstated the relevant question on the
              issue of statute of limitations.

¶4.    Finding the issue of the statute of limitations to be dispositive, this Court reverses and

renders the trial court judgment enforcing the verdict of the jury.

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                                        FACTS

¶5.   Stanley McLemore worked as a welder for almost thirty years. In the course of his

career, McLemore worked all over the country, with two long stints at Grand Gulf Nuclear

Power Station from 1980 through 1984 and from 1993 through 1998. In December 2001,

McLemore experienced difficulty welding and developed slowness in his left hand and arm.

McLemore was left-handed and relied on his left hand in his welding work.

¶6.   At first, McLemore thought that he had pinched a nerve, and he went to see a

chiropractor. The chiropractor referred McLemore to Dr. Joseph Farina, a neurologist. Dr.

Farina informed McLemore that he had Parkinsonism or Parkinsonian syndrome, and his

condition could have been related to welding. McLemore went to the office of an attorney

whom he previously had used for legal work, after Dr. Farina examined him and mentioned

the attorney’s name.

¶7.   Subsequently, McLemore saw Dr. Michael Graeber, Dr. Albert Hung, Dr. Michael

Swash, Dr. Robert Herdon, Dr. David Doorenbos, and Defendants’ medical expert, Dr. Ray

Watts. When Dr. Hung examined McLemore in Boston in December 2002, he advised

McLemore to discontinue welding.

¶8.   Dr. Swash was McLemore’s main expert witness at trial. This doctor was the only

physician to diagnose McLemore with manganism. According to Dr. Swash, manganism is

a syndrome with features of atypical Parkinsonism that is caused by exposure to manganese.

While McLemore saw a host of other physicians between December 2001 and his trial date

in 2008, they determined that he had some form of Parkinsonism. A few considered




                                            3
manganism, but ultimately decided against that diagnosis. Only Dr. Swash determined that

McLemore had manganism.

¶9.    McLemore stated that he first learned that he suffered from manganism in 2005.

However, McLemore filed various lawsuits claiming neurological injuries from exposure to

welding products as early as February 2004. The first complaint was filed on February 13,

2004, against various corporations for injuries suffered from those defendants’ sale and/or

distribution of defective welding consumables. The complaint did not name either Lincoln

Electric or ESAB, although it named John Doe Defendants 1-20. On August 31, 2004,

McLemore filed a complaint alleging “serious neurological injuries” due to exposure to

manganese in the Defendants’ welding consumables. This complaint named Lincoln Electric

and ESAB and other defendants, was not served on anyone, and was dismissed voluntarily

by McLemore on December 28, 2004. McLemore filed another complaint on November 14,

2005, alleging “serious neurological injuries” due to exposure to manganese in the

Defendants’ welding consumables. This complaint was not served on anyone. McLemore

filed an amended complaint on March 3, 2006, again alleging “serious neurological injuries”

due to exposure to manganese in the Defendants’ welding consumables. The Defendants

were served with the amended complaint no later than March 14, 2006.

                                      DISCUSSION

       I.     Statute of limitations and form of the verdict

¶10.   This Court applies a de novo standard of review to the statute of limitations. Harris

v. Darby, 17 So. 3d 1076, 1078 (Miss. 2009) (citing Ellis v. Anderson Tully Co., 727 So. 2d

716, 718 (Miss. 1998)).

                                             4
¶11.   The Defendants claim that the trial court erred on two issues concerning the statute

of limitations by (1) denying the Defendants’ motion for JNOV (and their motion for

summary judgment) for McLemore’s alleged failure to file within the three-year statute of

limitations under Mississippi Code Section 15-1-49, based on the date of discovery or date

he should have discovered his injury, and (2) giving a jury-verdict form that asked the jury

to determine when McLemore should have known about his manganism instead of the more

general inquiry of when he should have known about his injury. Finding the first of the two

issues dispositive, this Court will not address the form of the jury verdict.

       A.     Section 15-1-49

¶12.   Defendants argue that McLemore knew that he had an injury on September 3, 2002,

when Dr. Farina diagnosed him with Parkinsonism and informed him that his condition may

have been related to his occupation as a welder. Accordingly, the Defendants reason that

McLemore should have filed suit on or before September 3, 2005, yet he filed this cause of

action on November 14, 2005.

¶13.   McLemore, on the other hand, argues that his cause of action did not accrue until

October 2005, when he was diagnosed with manganism.1 Further, McLemore argues that

both parties were in agreement that welding fumes do not cause Parkinson’s disease.

However, it also was undisputed that welding fumes may cause manganism. McLemore

contends that he had no cause of action until he knew that he had manganism. Prior to his




       1
       There is some dispute between the parties concerning who informed McLemore that
he had manganism and when that diagnosis was given to McLemore. The general date
proposed by McLemore is October 2005.

                                              5
diagnosis, McLemore visited physicians in an effort to identify his condition. Until he knew

he had manganism, McLemore argued that he did not know that the welding fumes had

caused his damages.

¶14.      Mississippi Code Section 15-1-49 concerns the three-year statute of limitations and

states:

          (1) All actions for which no other period of limitation is prescribed shall be
          commenced within three (3) years next after the cause of action accrued, and
          not after.

          (2) In actions for which no other period of limitation is prescribed and which
          involve latent injury or disease, the cause of action does not accrue until the
          plaintiff has discovered, or by reasonable diligence should have discovered,
          the injury.

Miss. Code Ann. § 15-1-49 (Rev. 2003).

¶15.      Pursuant to Mississippi Code Section 15-1-49(2), a plaintiff’s cause of action accrues

at the point at which he discovered, or by reasonable diligence should have discovered, the

injury. Therefore, this Court must consider the application of the latent-injury/discovery rule

and whether McLemore’s statute of limitations began to run when either (1) he knew of his

Parkinsonism, or (2) he knew of the diagnosis of manganism.

¶16.      While McLemore’s November 2008 trial preceded this Court’s most recent

application of Section 15-1-49(2), and the litigants and trial court did not have the benefit of

this Court’s decision in Angle v. Koppers, Inc., 42 So. 3d 1 (Miss. 2010), the case

nonetheless is applicable to this appeal. In Angle, this Court determined that the plain

language of Section 15-1-49 supports an interpretation “that the cause of action accrued upon




                                                6
discovery of the injury, not discovery of the injury and its cause.” Id. at 5 (emphasis in

original).

¶17.   In Angle, the plaintiff filed suit on March 16, 2006, against various defendants

including Koppers, a wood-treatment plant, and others for injuries suffered as a result of

harmful exposure to toxic chemicals from 1984 through 2001. Id. at 2. The defendants

moved for summary judgment based on Section 15-1-49 and its three-year statute of

limitations. Id. at 3. Angle’s last injury occurred in 2001, five years before she filed the

complaint. Id.

¶18.   Without providing a known date, Angle responded that the statute of limitations began

to run when she knew that she had an injury and the cause of her injury. Id. at 3. The Court

found that the “cause of action accrued upon discovery of the injury, not discovery of the

injury and its cause.” Id. at 5 (emphasis in original). The Court found that Angle’s injury

accrued, at the latest, in 2001, when she was diagnosed with her last disease. Id. at 7.

¶19.    In reaching its decision, this Court considered a number of prior cases, including

Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704 (Miss. 1990); Schiro v. American Tobacco

Company, 611 So. 2d 962 (Miss. 1992); and PPG Architectural Finishes, Inc. v. Lowery,

909 So. 2d 47, 48 (Miss. 2005). Owens-Illinois was an asbestosis case that handed down

prior to the addition of subsection (2) to Mississippi Code Section 15-1-49, concerning the

common-law discovery rule. Owens-Illinois, 573 So. 2d at 705. The plaintiff, Edwards, a

shipbuilder, was exposed to asbestos from the 1940s through 1984. Id. at 705. Edwards’s

last exposure to asbestos occurred no later than December 31, 1976. Id. He had shortness

of breath in 1980. Id. Medical personnel told Edwards that he should be examined for the

                                             7
possibility of asbestosis in 1983; however; x-rays revealed no signs of the disease. Id.

Edwards was diagnosed finally with pulmonary pleural asbestosis on August 26, 1986. Id.

He filed suit on September 29, 1986, as part of a consolidated action. Id. The Court found

that the cause of action had accrued and the statute of limitations period began to run “when

the plaintiff can reasonably be held to have knowledge of the injury or disease.” Id. at 709.

The Court held that the plaintiff’s action accrued on August 26, 1986, the date of his

diagnosis of pulmonary pleural asbestosis.

¶20.   This Court also discussed its decision in Schiro v. American Tobacco Company, 611

So. 2d 962 (Miss. 1992). See Angle, 42 So. 3d at 6. The Schiro court cited Owens-Illinois

for the rule that “a cause of action accrues when it comes into existence as an enforceable

claim; that is, when the right to sue becomes vested.” Schiro, 611 So. 2d. at 964 (citing

Owens-Illinois, 573 So. 2d at 706). In Shiro, the plaintiff smoked for more than thirty years.

Schiro, 611 So. 2d at 963. She had a series of health problems including a diagnosis of

emphysema in the late 1960s or 1970s; an aortoiliac bypass in 1975; a few episodes of

hemoptysis (coughing up blood) in April and November 1981; detection of a small malignant

mass in December 1981; and diagnosis of the mass as cancerous in January 24, 1982. Id.

She filed suit on January 22, 1988. Id. The defense asserted that her cause of action accrued

on either the day she stopped smoking, the day she coughed up blood and believed that she

had cancer, or the day when the doctor diagnosed her with a malignant lung mass, all of

which fell outside the then-six-year limitation period. Id. The Court held that the statute of

limitations began to run on the day Schiro discovered that the mass was cancerous, because,

prior to that time, her suit would have been premature. Id. at 965. While the Schiro court

                                              8
discussed the cause of the cancer as smoking, the Angle court noted that “the proper inquiry

under the statute should have been the plaintiff’s discovery of the injury or disease . . . not

the discovery of a causative relationship between smoking and the cancer.” Angle, 42 So.

3d at 6.

¶21.   More recently, in Lowery, a plaintiff went to work shortly after the office had been

painted on October 1, 1999. PPG Architectural Finishes, Inc. v. Lowery, 909 So. 2d 47, 48

(Miss. 2005). Lowery noticed a strong paint odor when she arrived at work. Id. After a few

hours, she became sick and disoriented. Id. Lowery also contacted the poison control center

and reported the problem. Id. After passing out, Lowery went to the hospital and was

treated and released. Id. at 48-49. When Lowery returned to the emergency room three days

later, the doctor’s impression was that she had experienced toxin exposure. Id.

¶22.   Lowery filed suit on June 12, 2000, and then amended her complaint to add PPG as

a defendant on November 13, 2003. Lowery, 909 So. 2d at 49. PPG asserted the affirmative

defense of statute of limitations. Id. In Lowery, the Court explained that a latent injury is

one which is “undiscoverable by reasonable methods.” Id. at 51 (citing Donald v. Amoco

Prod. Co., 735 So. 2d 161, 168 (Miss. 1999)). The Court considered “whether the plaintiff

knew or reasonably should have known that an injury existed.” Lowery, 909 So. 2d at 51

(citing Sweeney v. Preston, 642 So. 2d 332, 336 (Miss. 1994)). To determine whether she

knew or reasonably should have known that she had an injury, this Court analyzed the

actions taken by Lowery. Lowery, 909 So. 2d at 51. The Court held that Lowery knew of

her injury on October 1, 1999, the date of exposure. Id. In fact, the Court noted that

Lowery, by her own admission, “knew when, how and by whom she had been injured on the

                                              9
night of her acute exposure.” Id. She had called the poison control center, had sought

treatment from the emergency room, and had suffered immediate problems from exposure

to the paint. Id. at 52.

¶23.   Applying Angle to the instant case, McLemore knew of his injury on September 3,

2002. At that time, Dr. Farina informed him of the correlation between his symptoms and

welding. As clarified in Angle, Section 15-1-49 does not require a plaintiff to know the

cause of the injury before accrual of the cause of action. Angle, 42 So. 3d at 6. While the

notice of this causal relationship generally is irrelevant to the accrual of the cause of action,

it shows McLemore’s knowledge of his injury at that time. Furthermore, McLemore

thereafter sought legal advice which resulted in an initial filing of a lawsuit in 2004 claiming

“serious neurological injury” from exposure to manganese products.               Consequently,

McLemore’s argument that he had no knowledge of his injury and its relation to welding

until his diagnosis of manganism fails under this Court’s holdings in Angle and Lowery.

Under Angle, knowledge of the cause of an injury is irrelevant to the analysis. Angle, 42 So.

3d at 5. The inquiry is when the party knew or should have known of an injury. Id. Further,

applying Lowery, this Court considers the actions taken by a party. Lowery, 909 So. 2d at

51.

¶24.   McLemore had difficulty using his left hand in December 2001. By September 3,

2002, Dr. Farina had informed McLemore that he had Parkinsonism and that it might have

been related to his welding work. Thereafter, McLemore sought legal advice and filed a

complaint alleging “serious neurological injury” related to manganese exposure. These




                                               10
events and actions by McLemore show that he knew, (or should have known) no later than

September 2002, that he had an injury.

       B.     Tolling

¶25.   Although not central to the disposition of this case, this Court will address the issue

of tolling for a complete analysis. In a footnote to their brief, the Defendants raised concerns

about multiple filings of this suit. As noted previously, the Defendants contend that

McLemore knew or should have known that he had an injury on September 3, 2002, after his

visit with Dr. Farina. At that medical appointment, Dr. Farina told McLemore that his

condition might be caused by welding and that he should hire a lawyer. The Defendants

contend that McLemore should have filed his complaint by September 3, 2005, but the

complaint was not filed until November 14, 2005, and an amended complaint was not served

on them until March 2006.

¶26.   In this context, the Defendants maintain that any argument by McLemore that the

filing of a prior lawsuit tolled the statute of limitations is incorrect. On August 31, 2004,

McLemore filed a complaint which named the Defendants, was not served on anyone, and

was dismissed voluntarily by McLemore on December 28, 2004.2 McLemore filed another

complaint on November 14, 2005, (which was not served on anyone) and filed an amended

complaint on March 3, 2006. The Defendants were served with the amended complaint no

later than March 14, 2006. Based on these events, the Defendants assert that (1) McLemore




       2
        McLemore also filed a suit in February 2004. The Defendants take no issue with
the February complaint and begin their tolling discussion with the August 31, 2004,
complaint.

                                              11
should have filed suit by September 3, 2005, (three years after his known injury) and did not;

and (2) any argument concerning tolling of the statute of limitations is without merit.

¶27.   McLemore argues that there was proper tolling. In the alternative, he argues that his

injury did not accrue until he was diagnosed with manganism.

¶28.   Recently, in Marshall v. Kansas City Southern Railways Company, 7 So. 3d 210,

213-214 (Miss. 2009), this Court addressed whether a voluntary dismissal of a complaint had

any effect on the tolling of the statute of limitations. We found that it did not toll the

limitations period. Id. at 213-14. In Marshall, this Court stated:

       This Court previously has held that a voluntary dismissal without prejudice:

              [D]oes not deprive the defendant of any defense he may be
              entitled to make to the new suit, nor confer any new right or
              advantage on the complainant (plaintiff), and hence it will not
              have the effect of excepting from the period prescribed by the
              statute of limitations, the time during which that suit was
              pending.

       Smith v. Copiah County, 232 Miss. 838, 100 So. 2d 614, 616 (1958) (quoting
       W.T. Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8, 9 (1926) (quoting
       Nevitt v. Bacon, 32 Miss. 212, 228 (1856) (emphasis added))).

Id. In other words, when a party chooses voluntarily to dismiss an action, the party receives

no tolling benefit.

¶29.   “Ordinarily, when a complaint is filed and properly served, that complaint tolls the

running of the statute of limitations.” Price v. Clark, 21 So. 3d 509, 521 (Miss. 2009) (citing

Owens v. Mai, 891 So. 2d 220, 223 (Miss. 2005)). We keep in mind that “[w]hile the filing

of a complaint tolls the statute of limitations, if service is not made upon the defendant within

120 days as required by M.R.C.P. 4(h), the limitations period resumes running at the end of



                                               12
the 120 days.” Owens v. Mai, 891 So. 2d 220, 223 (Miss. 2005). However, when a party

chooses voluntarily to dismiss the action, the complaint does not toll the running of the statue

of limitations. Marshall, 7 So. 3d at 213. In Koestler v. Mississippi Baptist Health Systems,

Inc., 45 So. 3d 280, 283 (Miss. 2010), this Court again held that “[t]he filing of a complaint

does not toll the statute of limitations when the plaintiff voluntarily dismisses the suit.”

¶30.   McLemore voluntarily dismissed his August 31, 2004, complaint on December 28,

2004. Because McLemore voluntarily dismissed the August 2004 complaint, his cause of

action was not tolled. McLemore filed his next complaint, which was not served, on

November 14, 2005. Assuming that the November 2005 complaint was filed and served on

a Defendant, the complaint still was filed outside the three-year statute of limitations which

began to run on September 3, 2002, and ended September 3, 2005. The March 2006

amended complaint that was filed and served on the Defendants, likewise, has no bearing on

the analysis of this case because it also was filed outside the three-year limitations period.

                                       CONCLUSION

¶31.   The judgment of the Circuit Court of Copiah County enforcing the jury verdict is

reversed and rendered. McLemore failed to file his cause of action within the applicable

statute of limitations, and his voluntary dismissal of the August 2004 complaint provided no

tolling for his action.

¶32.   REVERSED AND RENDERED.

     WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR AND
PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY GRAVES, P.J.

       KITCHENS, JUSTICE, DISSENTING:

                                              13
¶33.   For the reasons stated in my dissenting opinion in Angle v. Koppers, 42 So. 3d 1, 9-10

(Miss. 2010) (Kitchens, J., dissenting), I respectfully disagree with the majority’s holding

that the statute of limitations begins to run upon the discovery of the injury rather than upon

one’s discovery that he or she has a cause of action. However, even if I were to accept that

the statute of limitations begins to run on the date of the injury, I still would disagree with

today’s holding. The jury unanimously found that McLemore could not have discovered his

injury until October of 2005. Because the majority substitutes its judgment for that of the

jury, and because I find no reversible error, I would affirm the judgment, and I respectfully

dissent.

¶34.   This Court repeatedly has held that “the statute of limitations commences upon

discovery of an injury, and discovery is an issue of fact to be decided by a jury when there

is a genuine dispute.” Donald v. Amoco Prod. Co., 735 So. 2d 161, 167 (Miss. 1999). See

also, e.g., Weathers v. Metro. Life Ins. Co., 14 So. 3d 688, 692 (Miss. 2009) (quoting same);

Fletcher v. Lyles, 999 So. 2d 1271, 1277 (Miss. 2009) (quoting same). Only if “reasonable

minds could not differ as to the conclusion” may the question be decided by the courts.

Stringer v. Trapp, 30 So. 3d 339, 342 (Miss. 2010) (quoting Smith v. Sanders, 485 So. 2d

1051, 1052 (Miss. 1986)). In the present case, the jury was asked “[o]n what date do you

find by a preponderance of the evidence that the plaintiff discovered, or by reasonable

diligence should have discovered, his claimed neurological injury, manganism?” The jury

unanimously responded “10/05,” that is, October of 2005. Thus, based on the jury’s finding

of fact, the plaintiff had filed his action roughly one month after discovering his injury, well

within the three-year statute of limitations.

                                                14
¶35.   Today’s opinion further limits this Court’s precedent by holding that one need not

know the nature of his or her injury, only that there is some type of injury. This holding is

contrary to prior cases in which we have held that discovery of an injury cannot begin until

one has been diagnosed. See Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704, 709 (Miss.

1990) (statute of limitations began to run on date of medical diagnosis); Schiro v. Am.

Tobacco Co., 611 So. 2d 962, 963-64 (Miss. 1992) (statute of limitations began to run when

plaintiff discovered cancer, even though she had a lengthy history of other, related health

problems). Indeed, even in Angle, 42 So. 3d at 7, despite the plaintiff’s fifteen-year history

of related health problems and other diagnoses, this Court held that the plaintiff’s “cause of

action accrued at the latest in 2001, the date she was last diagnosed with an injury or

disease.” (Emphasis added.)

¶36.   In the present case, the jury was properly instructed on the discovery issue and found

that McLemore could not have discovered his injury until October 2005. Because this

question of fact was decided by the jury and that determination was not contrary to the

weight of the evidence, we should not set aside the jury’s decision, a decision which is

afforded “great deference.” Johnson v. St. Dominic-Jackson Mem’l Hosp., 967 So. 2d 20,

23 (Miss. 2007). As I find no reversible error, I would affirm the judgment.

       GRAVES, P.J., JOINS THIS OPINION.




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