Metropolitan News-Enterprise


Thursday, May 9, 2002


Page 1


C.A. Rejects Toxics Exposure Claims, Says Workers Filed Too Late


By KENNETH OFGANG, Staff Writer/Appellate Courts


A worker who knows he or she was exposed to toxic chemicals in the workplace must sue within one year of being told by a doctor of the nature of the illness, even if the specific cause has not been established, the Court of Appeal for this district has ruled.

Div. Four Tuesday affirmed a pair of summary judgments in favor of Safety-Kleen Corporation, which makes and supplies machines and solvents used in the automotive industry.

The plaintiffs, Hector Rivas and Hector Montiel, sued for kidney damage which they allege resulted from exposure to various toxic chemicals, including Safety-Kleen solvents.

Rivas worked for an auto salvage company from 1973 to 1991; his daily tasks included degreasing car parts using a Safety-Kleen parts washer machine and a Safety-Kleen solvent.

He was diagnosed with kidney failure in 1991 and gave his doctor a list of the chemicals contained in the solvent. The doctor told him to stay away from the solvent; he left his job and sought further treatment, including dialysis.

He received a kidney transplant in 1995. The following year, he applied for workers’ compensation benefits, saying he had suffered kidney damage due to “repetitive exposure to toxic fumes, gases, and liquids” at work.

He filed suit in April 1998.

Montiel worked in an automotive business from 1993 to 1996, during shiehc tine he regularly washed parts using a Safety-Kleen machine and solvent. He was diagnosed with kidney failure in 1996 at a Mexican hospital, and doctors there told him that a chemical used in his work was the likely cause.

He filed for workers’ compensation benefits on April 26, 1996, and sued Safety-Kleen and other defendants on April 29, 1997.

Los Angeles Superior Court Judge Charles Lee ruled that both claims were barred by the one-year statute of limitations because each plaintiff filed suit “more than one year after his first actual or constructive suspicion that the solvents he used at work had caused the injuries claimed . . . and that such injuries were the result of someone’s wrongdoing.”

The Court of Appeal Tuesday agreed.

Statute of Limitations

There is no rule “precluding accrual of the statute of limitations until the injured party has been explicitly informed by his doctors that a certain substance or product caused the medical disorder,” Justice Daniel Curry wrote for Div. Four.

A reasonable person, told that he has a serious illness and that he should stay away from a specific substance, would at minimum proceed with further investigation, Curry said. And certainly a person who has sought workers’ compensation benefits for toxic exposure has to be on notice of his potential tort claim, the justice said.

Curry went on to reject two other contentions raised by the plaintiffs—that their claims were timely under the three-year statute of limitations for fraud cases, and that the one-year limitations period has been preempted in toxics cases by a federal environmental law.

Fraudulent Concealment

The plaintiffs’ lawyers argued that the defendants had fraudulently concealed the fact that their products were toxic. But Curry said the argument was really nothing more than a products liability “failure to warn” claim, which is subject to the one-year statute.

He distinguished Snow v. A. H. Robins Co. (1985) 165 Cal.App.3d 120, which applied the three-year statute to a pregnant woman’s claim that she had relied on false representations of the superiority of the Dalkon Shield as a birth control device.

That plaintiff, Curry noted, was allegedly damaged not because she used the product, but because the product failed to work as intended despite specific representations by the defendant. In contrast, Curry noted, neither Montiel nor Rivas could point to any misrepresentation by any defendant, nor did either of them raise any issue about the effectiveness of the solvent.

The jurist also rejected the preemption claim, which was based on the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, known as CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986, sometimes referred to as SARA.

The acts specifically preempt state statutes of limitations if the statute period is shorter than that prescribed by federal law, and if the plaintiff’s claim is for damages caused by exposure to toxics “released” into the “environment” from a “facility.”

CERCLA, Curry explained, was not intended to protect workers asserting toxics claims against third-party manufacturers, but rather to “abate and control the vast problems associated with abandoned and inactive hazardous waste disposal sites” as Congress declared in the act.

“Entities that manufacture and distribute useful but potentially toxic products were not part of the problem Congress set out to solve in 1980 when CERCLA and the definitional provisions it contains were enacted,” the justice wrote.

The case is Rivas v. Safety-Kleen Corporation, 02 S.O.S. 2233.


Copyright 2002, Metropolitan News Company