ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
DAVID S. McCREA ROBERT L. SHUFTAN
McCrea & McCrea DAVID A. KANTER
Bloomington, Indiana MARTHA D. OWENS
DEREK C. SMITH
Wildman Harrold Allen & Dixon
KENDRA GOWDY GJERDINGEN
LONNIE D. JOHNSON
Mallor Clendening Grodner & Bohrer LLP
DONNA H. FISHER
Smith Fisher Maas & Howard
COURT OF APPEALS OF INDIANA
MARK DORMAN and TRACY DORMAN, )
vs. ) No. 53A05-0206-CV-284
OSMOSE, INC., WALKER-WILLIAMS LUMBER)
CO., and BENDER LUMBER CO., INC., )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable E. Michael Hoff, Judge
Cause No. 53C01-0006-CT-953
January 31, 2003
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Mark Dorman (“Dorman”) and Tracy Dorman (collectively, “the Dormans”)
appeal the trial court’s entry of summary judgment in favor of Osmose, Inc.
(“Osmose”), Walker-Williams Lumber Company (“Walker-Williams”), and Bender
Lumber Company (“Bender”) on their product liability and negligence claims.
The Dormans present several issues for our review, which we consolidate
and restate as whether the trial court erred when it found that the
Dormans’ claims are time-barred as a matter of law.
We reverse and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
On June 23, 1996, Dorman, an independent contractor, purchased
treated wood from Bender and began building a deck for a customer. The
wood was treated with chromated copper arsenate (“CCA”), a heavy metal
compound that includes arsenic, a known carcinogen. That afternoon, while
working on the project, Dorman accidentally struck his right shin against
the edge of a piece of freshly-cut treated wood. Dorman wiped blood from
the injured area and removed several splinters, but he continued working.
Dorman noted a burning sensation at the site of the injury. When Dorman
arrived home that evening, his wife, an emergency room technician, cleaned
the wound and removed several more splinters.
One week later, on June 29, 1996, the wound on Dorman’s right shin
was oozing fluid and had become red, swollen, and very warm to the touch.
Dorman sought emergency medical treatment at Bloomington Hospital. Dr.
Thomas Eccles examined Dorman’s leg and diagnosed him as having an
“[a]brasion with cellulitis and superficial abscess formation, left
pretibial region.” When Dorman told Dr. Eccles that he had hit his leg
on treated wood, Dr. Eccles responded that “they would fix [him] up.” Dr.
Eccles also told Dorman that “there’s some nasty stuff in that [treated
lumber].” Dr. Eccles did not elaborate on that statement, nor did Dorman
request a further explanation of what Dr. Eccles meant by “nasty stuff.”
Dorman had worked with treated wood for several years, and he believed that
the wood was salt-treated. Dr. Eccles prescribed antibiotics to treat
Dorman’s infection and discharged him from the emergency room.
More than a year later, in August 1997, Dorman sought medical
treatment when his lower right leg became red, swollen, and painful to walk
on. Dr. Jerry Headdy, Jr. examined Dorman’s leg and diagnosed him as
having “cellulitis with ascending lymphadenitis.” There is nothing in
Dr. Headdy’s report from that examination indicating the etiology of
Dorman’s symptoms, but Dr. Headdy had initially suspected blood clots.
Dorman asked Dr. Headdy if his condition could be related to “running [his]
leg into the treated lumber” in 1996. Dr. Headdy prescribed antibiotics
and admitted Dorman to the hospital for observation overnight. Dorman did
not seek additional medical attention until June 24, 1999, when he
consulted Dr. Headdy again regarding swelling in his lower right leg. Dr.
Headdy ordered a Doppler study of his leg, the results of which were
On December 10, 1999, Dorman talked with attorney David McCrea
regarding the injury he sustained in June 1996, and McCrea informed Dorman
that treated wood contains CCA. In early 2000, Dorman consulted Dr. R.
Michael Kelly regarding his injury, and Dr. Kelly issued a report on May 5,
2000, in which he concluded that “the chromium, copper and arsenic in the
treated wood were the cause of [Dorman’s] health problems[.]”
On June 30, 2000, the Dormans filed a complaint, alleging that the
defendants were strictly liable and negligent in causing Dorman’s injuries.
Each defendant moved for summary judgment, alleging that the Dormans’
claims were time-barred under the applicable statute of limitations.
Following a hearing, the trial court entered summary judgment in favor of
each of the defendants. The Dormans now appeal.
DISCUSSION AND DECISION
In determining the propriety of summary judgment, we apply the same
standard as the trial court. Jesse v. American Cmty. Mut. Ins. Co., 725
N.E.2d 420, 423 (Ind. Ct. App. 2000), trans. denied. We construe all facts
and reasonable inferences to be drawn from those facts in favor of the non-
moving party. Id. Summary judgment is appropriate when the designated
evidence demonstrates that there is no genuine issue of material fact and
that the moving party is entitled to a judgment as a matter of law. Ind.
Trial Rule 56(C). The purpose of summary judgment is to terminate
litigation about which there can be no material factual dispute and which
can be resolved as a matter of law. Zawistoski v. Gene B. Glick Co., Inc.
727 N.E.2d 790, 792 (Ind. Ct. App. 2000).
Where, as here, the material facts are essentially undisputed, our
sole task is to determine whether the trial court properly applied the law
to the facts. Laux v. Chopin Land Associates, Inc., 615 N.E.2d 902, 905
(Ind. Ct. App. 1993), trans. denied. Although the trial court entered
findings and conclusions, they are not binding upon this court. Eck &
Associates, Inc. v. Alusuisse Flexible Packaging, Inc., 700 N.E.2d 1163,
1166 (Ind. Ct. App. 1998), trans. denied. However, the findings facilitate
our review by providing valuable insight into the court’s decision. Id.
If the trial court’s summary judgment can be sustained on any theory or
basis in the record, we must affirm. Ledbetter v. Ball Mem’l Hosp., 724
N.E.2d 1113, 1116 (Ind. Ct. App. 2000), trans. denied.
Indiana Code Section 34-20-3-1, the limitations statute that governs
the Dormans’ action based on negligence and product liability theories,
provides that “any product liability action in which the theory of
liability is negligence or strict liability . . . must be commenced . . .
within two (2) years after the cause of action accrues . . . .” See also
Degussa Corp. v. Mullens, 744 N.E.2d 407, 410 (Ind. 2001). The statute is
silent on the meaning of “accrues.” Id. However, we have adopted a
discovery rule through case law for the accrual of claims arising out of
injuries allegedly caused by exposure to a foreign substance. Id. The two-
year statute of limitations begins “to run from the date the plaintiff knew
or should have discovered that she suffered an injury or impingement, and
that it was caused by the product or act of another.” Id. (quoting Barnes
v. A.H. Robins Co., 476 N.E.2d 84, 87-88 (Ind. 1985)).
In this case, the defendants contend that the statute of limitations
began to run when Dr. Eccles examined Dorman on June 29, 1996, and told him
that there was “nasty stuff” in treated wood. The defendants maintain
that, given that information, Dorman should have immediately investigated
the nature of the chemicals in the wood and should have discovered the
cause of his illness. Thus, the defendants assert, the Dormans’ complaint
was filed more than four years after the date their cause of action
accrued. The Dormans respond that the statute of limitations did not begin
to run until May 5, 2000, when they received Dr. Kelly’s report indicating
a causal link with the treated wood. And the Dormans maintain that Dorman
did not know that the wood was treated with CCA until his conversation with
McCrea in December 1999.
As our supreme court noted in Degussa, 744 N.E.2d at 410-11, when
determining the accrual of a product liability cause of action:
case law regarding medical malpractice claims is instructive because
medical and diagnostic issues are common between the two actions, the
statute of limitations for both claims is two years, and discovery is
sometimes at issue in determining whether the respective statutes of
limitation have been triggered. The question of when a plaintiff
alleging medical malpractice “discovered facts which, in the exercise
of reasonable diligence, should lead to the discovery of the medical
malpractice and resulting injury, is often a question of fact.”
(Citations omitted). The court went on to note:
a plaintiff need not know with certainty that malpractice caused his
injury, to trigger the running of the statutory time period. Once a
plaintiff’s doctor expressly informs the plaintiff that there is a
“reasonable possibility, if not a probability” that an injury was
caused by an act or product, then the statute of limitations begins to
run and the issue may become a matter of law. When a doctor so
informs a potential plaintiff, the plaintiff is deemed to have
sufficient information such that he or she should promptly seek
“additional medical or legal advice needed to resolve any remaining
uncertainty or confusion” regarding the cause of his or her injuries,
and therefore be able to file a claim within two years of being
informed of a reasonably possible or likely cause.
Although “[e]vents short of a doctor’s diagnosis can provide a
plaintiff with evidence of a reasonable possibility that another’s”
product caused his or her injuries, a plaintiff’s mere suspicion or
speculation that another’s product caused the injuries is insufficient
to trigger the statute.
Id. (emphasis added).
Recently, in Johnson v. Gupta, 762 N.E.2d 1280, 1282-83 (Ind. Ct.
App. 2002), this court addressed the discovery rule in a medical
malpractice context and examined two of the leading decisions by our
supreme court on this topic, Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999)
(holding medical malpractice statute of limitations unconstitutional as
applied to plaintiffs who cannot reasonably discover malpractice within two
years), and Van Dusen v. Stotts, 712 N.E.2d 491 (Ind. 1999) (holding
complaint timely filed where only fifteen months transpired after plaintiff
discovered facts which, in exercise of reasonable diligence, should have
led to discovery of malpractice). Quoting Van Dusen, 712 N.E.2d at 499, we
noted that the date on which a plaintiff receives “information that there
is a reasonable possibility that a specific injury was caused by a specific
act at a specific time” is the date that starts the running of the statute
of limitations. Johnson, 762 N.E.2d at 1282 (emphasis added). In
addition, we stated:
Van Dusen did not . . . establish that the statute of limitations is
tolled until the patient discovers a causal link between the
physician’s actions and the patient’s injury. In fact, [appellant]
seems to propose a test that focuses on the plaintiff’s subjective
knowledge of that causal link. Such a test misses the point of the
exception created in Martin and Van Dusen. Those cases sought to
address the situation where a patient suffers no discernible pain or
symptoms until several years after the alleged malpractice. Upon
constitutional grounds, the court concluded that a patient cannot
reasonably be expected to investigate the cause of a problem that is
not yet made manifest. As a result, according to Martin and Van
Dusen, the statute is tolled until the patient experiences symptoms
that would cause a person of reasonable diligence to take action that
would lead to the discovery of the malpractice.
Id. at 1283 (emphases added).
In this case, the undisputed evidence shows that Dorman hit his leg
on treated wood, removed several splinters from the wound, and sought
medical treatment one week later when the wound began to ooze, swell, and
feel hot to the touch. Dr. Eccles diagnosed Dorman with cellulitis. While
Dr. Eccles told Dorman that treated wood had “nasty stuff” in it, Dr.
Eccles neither explained what he meant by that statement nor associated
Dorman’s injury with any chemical element in the wood. Moreover, there is
no evidence that Dr. Eccles gave Dorman any reason to believe that he had
sustained anything other than a superficial flesh wound that would be cured
with antibiotics. Thus, we conclude, as a matter of law, that as of
June 29, 1996, Dorman did not experience “symptoms that would cause a
person of reasonable diligence to take action that would lead to the
discovery” of his cause of action. See Johnson, 762 N.E.2d at 1283. In
other words, Dorman had no reason to suspect that he had been exposed to
CCA or had sustained an injury related to such an exposure.
Indeed, the undisputed evidence indicates that Dorman did not seek
medical attention for the injury to his leg again until August 1997. At
that time, Dorman experienced redness, swelling, and pain in his lower
right leg and sought treatment with Dr. Headdy, who suspected that Dorman
might have blood clots in that leg. Dorman asked Dr. Headdy whether his
symptoms might be related to “running [his] leg into the treated lumber” in
1996. But there is no designated evidence showing that Dr. Headdy even
considered that the treated wood might be the cause, let alone that he
confirmed Dorman’s suspicions. We agree the evidence indicates that Dorman
suspected a connection between this recurrence of symptoms in his right leg
and the incident on June 23, 1996, but, as we have already noted, a
plaintiff’s mere suspicion or speculation that another’s product caused the
injuries is insufficient to trigger the statute. See Degussa, 744 N.E.2d
at 411 (holding statute of limitations not triggered where plaintiff
suspected illness stemmed from defendant’s product and treating physician
“said nothing to confirm, deny, or even strengthen her suspicions”). Under
the circumstances, we conclude that the statute of limitations was not
triggered as of August 1997.
Dorman next sought medical treatment for symptoms in his lower right
leg on June 24, 1999. Another Doppler study was performed, and the results
were normal. It is undisputed that Dorman did not seek additional
medical attention for his leg until early 2000. But in the meantime,
Dorman had consulted attorney McCrea on December 10, 1999, and learned that
the treated wood involved in his June 1996 accident contained CCA. Then,
in February 2000, Dorman consulted with Dr. Kelly, who, on May 5, 2000,
issued a report concluding that Dorman’s illness was caused by his exposure
to CCA in the treated wood.
Dorman filed his complaint on June 30, 2000. Considering the
designated evidence, we conclude that, as a matter of law, the statute of
limitations did not begin to run prior to June 30, 1998. In short,
Dorman’s alleged injury was latent in that, prior to 2000, his treating
physicians never suggested that his symptoms might have resulted from a
chemical exposure or otherwise confirmed his mere suspicions regarding a
link between the treated wood and his medical condition. We hold that the
Dormans’ complaint was timely filed.
Thus, the facts of this case are similar to those in Degussa, 744
N.E.2d at 407, and Evenson v. Osmose Wood Preserving Co. of America, Inc., 899 F.2d 701 (7th Cir. 1990). In Degussa, the plaintiff suspected that her
inhalation of defendant’s product caused her illness, but her physician did
nothing to confirm or deny that suspicion. Our supreme court held that the
plaintiff’s complaint was timely filed where her “physicians had [not] yet
informed her that there was a reasonable possibility, if not probability,
that her ailments were caused by work chemicals” two years prior to the
complaint being filed. Degussa, 744 N.E.2d at 411-12 (specifying no date
statute of limitations was triggered, but holding that it was sometime
within intervening two years) (emphasis in original).
In Evenson, the plaintiff worked in the manufacture of CCA-treated
wood and developed medical problems, which he suspected stemmed from his
exposure to CCA. In the course of his medical treatment, the plaintiff
began to suspect that his symptoms were related to CCA exposure, but his
physicians either disagreed or stated no opinion at all. The court noted
Evenson, despite his diligent efforts, received no indication anytime
prior to the two-year period before he filed his complaint that his
suspicion as to the cause of his injuries might be correct. . . .
Evenson, a mere layperson, only suspected that CCA was causing his
medical problems. Although Evenson asked various doctors over the
course of his continuous medical treatment if CCA could be the cause
of his injuries, no doctor, prior to the two-year period before he
filed his complaint, confirmed his suspicions that CCA might be the
Evenson, 899 F.2d at 704. The court held that Evenson’s complaint was not
Again, here, the designated evidence shows that Dorman, a layperson,
merely suspected that his symptoms might be related to his impact with the
treated wood on June 23, 1996, and his effort to confirm that suspicion
with his treating physician, Dr. Headdy, was unsuccessful. The defendants
are correct that a plaintiff need not know the full extent of his injury
for a cause of action to accrue, citing Mayfield v. Continental
Rehabilitation Hospital, 690 N.E.2d 738, 741 (Ind. Ct. App. 1998), trans.
denied. But where, as in this case, the true nature of the injury is
latent, no cause of action accrues until the plaintiff “experiences
symptoms that would cause a person of reasonable diligence to take action
that would lead to the discovery” of a tort and the resulting injury. See
Johnson, 762 N.E.2d at 1283; Van Dusen, 712 N.E.2d at 497. Moreover, while
defendants contend that Dorman knew or should have known that the wood was
treated with CCA as early as June 1996, they do not contend that the
Material Safety Data Sheet or any other written warning would have helped
Dorman’s treating physicians to make the correct diagnosis. In other
words, the defendants make no argument that, had the physicians known
Dorman was exposed to CCA, they would have informed him, prior to 2000, of
a “reasonable possibility” or “probability” that the exposure was the cause
of his illness. See Degussa, 744 N.E.2d at 411-12. Indeed, the treating
physicians in both Degussa and Evenson were given specific information
regarding the appellants’ work-related exposures and still failed to
confirm those appellants’ suspicions.
The Dormans’ complaint is not time-barred. We reverse the trial
court’s grant of summary judgment in favor of the defendants and remand for
Reversed and remanded for further proceedings.
FRIEDLANDER, J., and VAIDIK, J., concur.
 We note that the parties refer to Dorman’s right leg being the
affected limb, but Dr. Eccles’ report states the left leg was injured. But
none of the parties addresses this inconsistency. As such, we will assume
that the reference to Dorman’s left leg is merely a typographical error.
 In 1980, Osmose stopped manufacturing a “salt” formulation of
treated wood and switched to a formulation using chromated copper arsenate
(“CCA”). But Osmose admits that people “both inside and outside the
industry” continued to refer to treated wood as “salt-treated” even after
1980. The evidence is undisputed that Dorman was never provided with a
copy of the Material Safety Data Sheet regarding the chemicals used in the
 Cellulitis is defined as “a spreading inflammation of
subcutaneous or connective tissue,” and lymphadenitis is defined as
“inflammation of one or more lymph nodes.” See The American Heritage
Dictionary 309, 1073 (3d ed. 1992).
 In his deposition, Dorman states that Dr. Headdy responded that
he did not know whether the treated wood had anything to do with his
cellulitis. But none of the parties designated that page of Dorman’s
deposition as evidence for summary judgment purposes. As such, we cannot
consider this evidence on appeal.
 In its findings and conclusions, the trial court made inferences
against Dorman, the non-movant, namely, that Dr. Eccles knew and had told
Dorman on June 29, 1996, that he had sustained an injury as a result of
chemicals in the treated lumber. It is well-settled that any doubt about
the existence of a factual issue should be resolved against the movant,
with all properly asserted facts and reasonable inferences construed in
favor of the nonmovant. Schrader v. Eli Lilly & Co., 639 N.E.2d 258, 261
 There is no designated evidence regarding what symptoms Dorman
was experiencing at the time of the June 24, 1999 Doppler study. The only
relevant designated evidence is a short report indicating the results of
 We note that Dorman was the only named plaintiff in the original
complaint, but he moved to amend his complaint in September 2001 to add his
wife’s loss of consortium claim. The trial court granted that motion to
amend, and the amendment relates back to the date of the original complaint
under Trial Rule 15(C).