LARRY BEARUP V GENERAL MOTORS CORP
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STATE OF MICHIGAN
COURT OF APPEALS
LARRY BEARUP,
UNPUBLISHED
February 3, 2009
Plaintiff,
and
DALE PARKER, JAMES WALLACE, CHESTER
NETHING, CHERYL SCHUPPLER, SANDRA
THEDFORD, Personal Representative of the Estate
of RONNIE THEDFORD, WILLIAM SPOHN,
DEANATRIS ARMSTRONG, Personal
Representative of the Estate of RETINA
HARRISTON,1 and BETTY ROBINSON,
Plaintiffs-Appellants,
V
GENERAL MOTORS CORPORATION,
CINCINNATI MILACRON, d/b/a CINCINNATI
MILACRON MARKETING, PRODUCTS
DIVISION, and CASTROL INDUSTRIAL INC.,
No. 272654
Genesee Circuit court
LC No. 99-066364-NO
Defendants,
and
QUAKER CHEMICAL CORPORATION,
Defendant-Appellee.
ON RECONSIDERATION
LARRY BEARUP, DALE PARKER, JAMES
WALLACE, CHESTER NETHING, CHERYL
SCHUPPLER, SANDRA THEDFORD, Personal
1
This plaintiff is also referred to as “Vertina Hairston” and “Vertina Hariston” in the lower court
record.
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Representative of the Estate of RONNIE
THEDFORD, WILLIAM SPOHN, DEANATRIS
ARMSTRONG, Personal Representative of the
Estate of RETINA HARRISTON,2 and BETTY
ROBINSON,
Plaintiffs-Appellees,
V
GENERAL MOTORS CORPORATION,
CINCINNATI MILACRON, d/b/a CINCINNATI
MILACRON MARKETING, PRODUCTS
DIVISION, and CASTROL INDUSTRIAL INC.,
No. 272666
Genesee Circuit court
LC No. 99-066364-NO
Defendants,
and
QUAKER CHEMICAL CORPORATION,
Defendant-Appellant.
Before: Schuette,3 P.J., and Borrello and Gleicher, JJ.
PER CURIAM.
In Docket No. 272654, plaintiffs appealed by leave granted4 the order granting defendant
Quaker Industrial Inc.’s motion for summary disposition under MCR 2.116(C)(7) and (10) based
on the statute of limitations. In Docket No. 272666, defendant Quaker Chemical Corporation
appealed by leave granted5 the order denying its motion for summary disposition based on the
sophisticated user doctrine. On October 23, 2008, we issued our original opinion in this case,
affirming in both Docket Nos. 272654 and 272666. Plaintiffs moved for reconsideration of our
(…continued)
2
This plaintiff is also referred to as “Vertina Hairston” and “Vertina Hariston” in the lower court
record.
3
Schuette, P.J., not participating in the opinion on reconsideration, his term of office having
expired on January 1, 2009.
4
Parker v Quaker Chemical Corp, unpublished order of the Court of Appeals, entered March 9,
2007 (Docket No. 272654). In the order granting leave, this Court ordered that the case be
consolidated with Docket No. 272666.
5
Bearup v General Motors Corp, unpublished order of the Court of Appeals, entered March 9,
2007 (Docket No. 272666). In the order granting leave, this Court ordered that the case be
consolidated with Docket No. 272654.
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decision in docket no. 272654, and we granted the motion and vacated our original opinion in
both Docket Nos. 272654 and 272666.6 On reconsideration, we reverse in Docket No. 272654
and remand for proceedings consistent with this opinion. In Docket No. 272666, we reverse the
trial court’s denial of defendant’s motion for summary disposition and remand for entry of an
order granting summary disposition of plaintiffs’ product liability/failure to warn claims.
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs are former employees of defendant General Motors Corporation (GM) at its
Metal Fabricating Plant in Flint, Michigan. During the course of their work, plaintiffs worked
with and were exposed to draw compounds, which are chemicals that are sprayed or brushed
onto metal parts to lubricate the metal and aid in the removal of undesirable particulate debris.
Defendant Quaker sold a variety of different draw compounds to GM in bulk quantities. The
draw compounds were contained in large totes, which held several hundred gallons of
concentrated chemicals. Plaintiffs brought an action against defendant and others, alleging that
defendant was liable to plaintiffs for negligence and for failing to warn of the potential adverse
health effects associated with exposure to and inhalation of defendant’s metalworking fluids
(MWFs).7 According to plaintiffs, defendant’s conduct resulted in severe injury to plaintiffs,
including, but not limited to, reduced and impaired breathing capacity, respiratory problems,
reduced oxygen diffusion capacities, loss of lung function, chemical sensitivity and
hypersensitivity, reduced blood oxygen levels, and interstitial lung disease.
6
Bearup v General Motors Corp, unpublished order of the Court of Appeals, entered December
23, 2008 (Docket Nos. 272654; 272666).
7
Although plaintiffs’ amended complaint alleges that plaintiffs were exposed to metalworking
fluids (MWFs), the parties’ arguments on appeal refer to plaintiffs’ exposure to draw
compounds. The parties both appear to use the terms MWFs and draw compounds
interchangeably. In fact, while similar in composition, MWFs and draw compounds are not
identical, and they are used in different manufacturing processes. The following explains the
distinction between MWFs and draw compounds:
9. . . . The primary purposes of the draw compounds is to lubricate the
metal and to aid in the removal of undesirable particulate debris which can cause
scoring of metal body forming parts in forming operations. . . .
10. Metal working fluids is a generic term to describe chemical
compounds used in machining, grinding, boring and honing operations. While
similar to draw compounds in their chemical composition, metal working fluids
also have a variety of unique chemical compositions and are not identical to draw
compounds in their composition. Draw compounds or metal forming fluids are
used in stamping, forging, drawing, and cold heading and similar drawing
operations. It is generally recognized that while draw compounds and metal
working fluids are similar in composition, they are typically different chemical
formulations and used in entirely different manufacturing processes. [Affidavit of
Katherine N. Coughenour, ¶ ¶ 9-10.]
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Defendant Quaker filed multiple motions for summary disposition based on the
expiration of the statute of limitations. These motions argued that plaintiffs’ claims were barred
by the statute of limitations under MCR 2.116(C)(7), (C)(10), or both. According to defendant,
plaintiffs’ claims were barred because their complaint was filed after the expiration of the threeyear statute of limitations. Specifically, defendant contended that under the discovery rule,
plaintiffs’ cause of action accrued more than three years before plaintiffs filed their complaint.
According to defendant, plaintiffs either discovered or should have discovered an injury and a
causal connection between the injury and defendant more than three years before they filed their
cause of action. Plaintiffs argued that symptoms alone were not sufficient to put them on notice
of their injuries or the cause of their injuries. According to plaintiffs, their cause of action did
not accrue until they received medical diagnoses. Plaintiffs further argued that the doctrine of
equitable estoppel should be invoked to toll the statute of limitations.
Defendant Quaker also moved for summary disposition under MCR 2.116(C)(10),
arguing that it was entitled to summary disposition because GM, which purchased draw
compounds from defendant in bulk quantities, was a sophisticated user both under the common
law and statutory sophisticated user doctrines. Therefore, defendant contended, pursuant to
MCL 600.2947(4), it was not liable in a product liability action for failing to provide adequate
warnings for its draw compounds. Defendant also argued that plaintiffs failed to establish the
proximate cause element of their negligent failure to warn claim. According to defendant, there
was no admissible evidence that plaintiffs would have used the draw compounds differently if it
had provided additional warnings. In response to defendant’s motion for summary disposition,
plaintiffs argued, among other arguments, that GM’s employees, including plaintiffs, were not
sophisticated users under MCL 600.2945(j) and that Bock v General Motors Corp, 247 Mich
App 705; 637 NW2d 825 (2001), precluded defendant’s motion for summary disposition based
on the sophisticated user doctrine.
The trial court decided both of defendant’s motions in an opinion and order dated August
7, 2006. The trial court “reluctantly” granted defendant’s motion for summary disposition based
on the statute of limitations, rejecting plaintiffs’ argument that plaintiffs could not have been
reasonably expected to discover their injuries and the cause of their injuries until they received a
medical diagnosis. The trial court also rejected plaintiffs’ contention that equitable estoppel
should toll the running of the statute of limitations.
The trial court struggled in rendering a decision on defendant’s motion based on the
sophisticated user doctrine. The trial court concluded that GM was a sophisticated user under
MCL 600.2945(j); nevertheless, the trial court determined that it was bound by this Court’s
decision in Bock and denied summary disposition based on Bock. The trial court stated:
The central holding from Bock is that a commercial supplier of product to a
sophisticated user may nevertheless be held liable to the sophisticated user’s
employees for injuries suffered from exposure to the product based on an
evaluation of the reasonableness of the conduct of the sophisticated user,
including the dissemination of information about the product. Bock, at 714. The
reasonableness of the supplier’s conduct may in turn be determined by the
relationship between the sophisticated user.
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The trial court observed that the “reasonable conduct” rule from Bock was not contained in the
sophisticated user statute and could not be extrapolated from it. The trial court also observed
that defendant’s motion for summary disposition was based on the sophisticated user doctrine as
enacted by the products liability statute, MCL 600.2945 et seq., that plaintiffs’ lawsuit was filed
after the effective date of MCL 600.2945 et seq., and that Bock was a common law decision that
did not refer to the statutes. The trial court also recognized that its decision regarding whether to
rely on the statute or Bock would determine whether summary disposition based on the
sophisticated user doctrine was appropriate. The trial court summed up its dilemma cogently:
“In sum, application of Bock would require this court to deny Quaker’s motion while application
of the statute would require this court to grant Quaker’s motion for summary disposition based
on the sophisticated user defense.” (Footnote omitted.) While the trial court noted that there
were “numerous reasons to question Bock and rely on the statute for the basis for its decision,” it
stated that it was not the function of the trial court to “deem that Bock has not survived the
statute without any such indication from a higher court.” Therefore, the court denied defendant
Quaker’s motion for summary disposition under the sophisticated user doctrine because it was
“constrained to follow Bock[.]”
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition
under MCR 2.116(C)(7). DiPonio Constr Co, Inc v Rosati Masonry Co, Inc, 246 Mich App 43,
46; 631 NW2d 59 (2001). In deciding a motion brought pursuant to MCR 2.116(C)(7), a court
should consider all affidavits, pleadings, and other documentary evidence submitted by the
parties. MCR 2.116(G)(5); Holmes v Michigan Capital Med Ctr, 242 Mich App 703, 706; 620
NW2d 319 (2000). If the pleadings or documentary evidence reveal no genuine issues of
material fact, the court must decide as a matter of law whether the claim is statutorily barred.
Holmes, supra at 706.
This Court’s review of a trial court’s grant of summary disposition pursuant to MCR
2.116(C)(10) is as follows:
This Court reviews de novo a trial court’s grant or denial of summary
disposition under MCR 2.116(C)(10). Spiek v Dep’t of Transportation, 456 Mich
331, 337; 572 NW2d 201 (1998). A motion brought under MCR 2.116(C)(10)
tests the factual support for a claim. Downey v Charlevoix Co Rd Comm’rs, 227
Mich App 621, 625; 576 NW2d 712 (1998). The pleadings, affidavits,
depositions, admissions, and any other documentary evidence submitted by the
parties must be considered by the court when ruling on a motion brought under
MCR 2.116(C)(10). Downey, supra at 626; MCR 2.116(G)(5). When reviewing
a decision on a motion for summary disposition under MCR 2.116(C)(10), this
Court “must consider the documentary evidence presented to the trial court ‘in the
light most favorable to the nonmoving party.’” DeBrow v Century 21 Great
Lakes, Inc (After Remand), 463 Mich 534, 539; 620 NW2d 836 (2001), quoting
Harts v Farmers Ins Exchange, 461 Mich 1, 5; 597 NW2d 47 (1999). A trial
court has properly granted a motion for summary disposition under MCR
2.116(C)(10) “if the affidavits or other documentary evidence show that there is
no genuine issue in respect to any material fact, and the moving party is entitled to
judgment as a matter of law.” Quinto v Cross & Peters Co, 451 Mich 358, 362;
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547 NW2d 314 (1996). [Clerc v Chippewa Co War Mem Hosp, 267 Mich App
597, 601; 705 NW2d 703 (2005), remanded in part 477 Mich 1067 (2007).]
This Court reviews equitable issues de novo, although the findings of fact supporting the
decision are reviewed for clear error. Cipri v Bellingham Frozen Foods, Inc, 235 Mich App 1, 9;
596 NW2d 620 (1999).
III. ANALYSIS
A. Statute of Limitations
Plaintiffs argue that the trial court erred in granting defendant’s motion for summary
disposition based on the statute of limitations and in failing to invoke the doctrine of equitable
estoppel to toll the statute of limitations. In light of the Supreme Court’s recent decision in
Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378; 738 NW2d 664 (2007), we
agree that the trial court erred by analyzing defendant’s motion for summary disposition based
on the common law discovery rule.
The statute of limitations in negligence and product liability actions is three years. MCL
600.5805(10); MCL 600.5805(13). In general, “the period of limitations runs from the time the
claim accrues.” MCL 600.5827. Historically, the discovery rule has governed the date of
accrual for certain types of actions in which the defendant’s duty and breach predate the
plaintiff’s awareness of an injury and of its cause. See Moll v Abbott Laboratories, 444 Mich 1;
506 NW2d 816 (1993). Under the discovery rule, the statute of limitations begins to run when
the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered,
an injury and the causal connection between the plaintiff’s injury and the defendant’s breach. Id.
at 16. Application of the discovery rule has been deemed proper because of the latent nature of a
plaintiff’s injury or an inability to discover the causal connection between the injury and the
defendant’s breach. Lemmerman v Fealk, 449 Mich 56, 65-66; 534 NW2d 695 (1995). The
rationale for applying the discovery rule is to avoid the extinguishment of a cause of action
before the plaintiff is even aware of the possible cause of action. Id. at 66.
The discovery doctrine has historically been applied to the determination of when a cause
of action accrues for latent injuries in a product liability action. See Moll, supra at 13 and
Mascarenas v Union Carbide Corp, 196 Mich App 240, 244; 492 NW2d 512 (1992). However,
the Supreme Court’s recent decision in Trentadue has completely eliminated the common law
discovery doctrine in Michigan. In Trentadue, the plaintiff’s mother was raped and murdered in
1986, but the murder remained unsolved until 2002, when deoxyribonucleic acid (DNA)
evidence established the identity of the perpetrator causing the plaintiff to file a negligence
action against the perpetrator, his employer, and others. Trentadue, supra at 383. The
defendants, except the perpetrator, moved for summary disposition based on the expiration of the
three-year statute of limitations applicable to wrongful death actions, MCL 600.5805(10). Id.
The plaintiff argued that the common law discovery rule applied to toll the period of limitations.
Id. at 384. The trial court and this Court agreed, but, the Supreme Court ruled that the common
law discovery rule did not apply to toll the period of limitations in MCL 600.5805(10) and
reversed the trial court’s order denying the defendants’ motion for summary disposition under
MCR 2.116(C)(7).
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The Supreme Court’s reasoning and holding in Trentadue are as follows:
The Revised Judicature Act, at MCL 600.5838(2), 600.5838a(2),
600.5839(1), and 600.5855, provides for tolling of the period of limitations in
certain specified situations. These are actions alleging professional malpractice,
MCL 600.5838(2); actions alleging medical malpractice, MCL 600.5838a(2);
actions brought against certain defendants alleging injuries from unsafe property,
MCL 600.5839(1); and actions alleging that a person who may be liable for the
claim fraudulently concealed the existence of the claim or the identity of any
person who is liable for the claim, MCL 600.5855. Significantly, none of these
tolling provisions covers this situation—tolling until the identity of the tortfeasor
is discovered.
Plaintiff contends, however, that, notwithstanding these statutes, when the
claimant was unaware of any basis for an action, the harsh result of barring any
lawsuit because the period of limitations has expired can be avoided by the
operation of a court-created discovery rule, sometimes described as a commonlaw rule . . . . We reject this contention because the statutory scheme is exclusive
and thus precludes this common law practice of tolling accrual based on discovery
in cases where none of the statutory tolling provisions apply.
It is axiomatic that the Legislature has the authority to abrogate the
common law. Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 74; 711
NW2d 340 (2006). Further, if a statutory provision and the common law conflict,
the common law must yield. Pulver v Dundee Cement Co, 445 Mich 68, 75 n 8;
515 NW2d 728 (1994). . . .
Here, as we have explained, the relevant sections of the Revised Judicature Act
comprehensively establish limitations periods, times of accrual, and tolling for
civil cases. MCL 600.5827 explicitly states that a limitations period runs from the
time a claim accrues “[e]xcept as otherwise expressly provided.” Accordingly,
the statutes “designate specific limitations and exceptions” for tolling based on
discovery, as exemplified by MCL 600.5838, 600.5838a, 600.5839, and
600.5855. . . .
Finally, MCL 600.5855 is a good indication that the Legislature intended
the scheme to be comprehensive and exclusive. MCL 600.5855 provides for
essentially unlimited tolling based on discovery when a claim is fraudulently
concealed. If we may simply apply an extrastatutory discovery rule in any case
not addressed by the statutory scheme, we will render § 5855 effectively
meaningless. For, under a general extrastatutory discovery rule, a plaintiff could
toll the limitations period simply by claiming that he reasonably had no
knowledge of the tort or the identity of the tortfeasor. He would never need to
establish that the claim or tortfeasor had been fraudulently concealed.
Since the Legislature has exercised its power to establish tolling based on
discovery under particular circumstances, but has not provided for a general
discovery rule that tolls or delays the time of accrual if a plaintiff fails to discover
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the elements of a cause of action during the limitations period, no such tolling is
allowed. Therefore, we conclude that courts may not employ an extrastatutory
discovery rule to toll accrual in avoidance of the plain language of MCL 600.5827
and we reject this Court’s contrary conclusion in Chase v Sabin, 445 Mich 190,
191-192; 516 NW2d 60 (1994). Because the statutory scheme here is
comprehensive, the Legislature has undertaken the necessary task of balancing
plaintiffs’ and defendants’ interests and has allowed for tolling only where it sees
fit. . . . [Trentadue, supra at 388-392.]
After Trentadue, the discovery rule only applies if the legislature specifically provides for
the discovery rule, which it has done for plaintiffs injured by professional malpractice, MCL
600.5838(2), or medical malpractice, MCL 600.5838a(2), and for actions brought against certain
defendants alleging injuries from unsafe property, MCL 600.5839(1), actions alleging breach of
warranty, MCL 600.5833, and actions alleging fraudulent concealment of the existence of a
claim or the identity of any person who is liable for the claim, MCL 600.5855.8 Id. at 388.
Plaintiffs’ action against defendant is a negligence and product liability action. Because there is
no common law discovery rule after Trentadue, and the statute does not include a legislatively
created discovery rule that applies to plaintiffs’ action, plaintiffs cannot invoke the discovery
doctrine to toll the running of the statute of limitations. Trentadue, supra.9
This Court is bound by the Supreme Court’s decision in Trentadue because a majority of
justices sitting on the case were in agreement in concluding that the legislature’s enactment of
the RJA abrogated the common law discovery doctrine. People v Anderson, 389 Mich 155, 170;
205 NW2d 461 (1973), overruled in part on other grounds in People v Hickman, 470 Mich 602
(2004). Furthermore, the Supreme Court specifically stated that “prospective-only application is
inappropriate” for Trentadue. Trentadue, supra at 401. Therefore, even though the trial court
applied the discovery doctrine and granted defendant’s motion for summary disposition almost a
full year before the Supreme Court decided Trentadue, because the Supreme Court explicitly
gave Trentadue retroactive application, the trial court erred in applying the discovery doctrine.
We are not persuaded by plaintiffs’ argument that the doctrine of equitable estoppel
should preclude defendant from asserting the statute of limitations defense. The doctrine of
equitable estoppel is a judicially created exception to the general rule that statutes of limitation
run without interruption. Cincinnati Ins Co v Citizens Ins Co, 454 Mich 263, 270; 562 NW2d
648 (1997); Lothian v Detroit, 414 Mich 160, 176; 324 NW2d 9 (1982). It is essentially a
doctrine of waiver that extends the applicable period for filing a lawsuit by precluding the
8
Although plaintiffs argue in their brief on appeal that defendant assured them that the draw
compounds were safe and failed to properly warn them of the dangers associated with the draw
compounds, plaintiffs did not allege in their complaint that defendant fraudulently concealed
plaintiffs’ cause of action.
9
A legislatively created discovery rule applies to plaintiffs’ breach of warranty claims, MCL
600.5833. But for the reasons described infra, plaintiffs’ breach of warranty claims in this case
are barred by the sophisticated user doctrine.
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defendant from raising the statute of limitations as a defense to the action. Lothian, supra at
176-177. One who seeks to invoke equitable estoppel generally must establish that there has
been (1) a false representation or concealment of a material fact, (2) an expectation that the other
party will rely on the misconduct, and (3) knowledge of the actual facts on the part of the
representing or concealing party. Cincinnati Ins Co, supra at 270. The Supreme Court “has
been reluctant to recognize an estoppel absent intentional or negligent conduct designed to
induce a plaintiff to refrain from bringing a timely action.” Id. (emphasis in original).
In Trentadue, the Supreme Court rejected the argument that equitable estoppel should
have tolled the running of the statute of limitations. In so doing, the Supreme Court stated: “if
courts are free to cast aside a plain statute in the name of equity, even in such a tragic case as
this, then immeasureable damage will be caused to the separation of powers mandated by our
constitution.” Trentadue, supra at 406-407. In Trentadue, the plaintiff’s decedent was raped and
murdered and the identity of her killer was not discovered for about sixteen years. Even though
the plaintiff’s decedent filed a wrongful death action in 2002, the same year the killer’s identity
was discovered, the Supreme Court ruled that the plaintiff’s action was barred by the three-year
statute of limitations for wrongful death actions. The equities involved in Trentadue are stronger
for invoking equitable estoppel than the facts of the instant case because in Trentadue there was
absolutely no way that the plaintiff could have brought a wrongful death action when the identity
of her mother’s killer was unknown. The plaintiff’s action was barred by the statute of
limitations through no fault of her own. As Justice Kelly noted in her dissent: “plaintiff’s tort
cause of action disappeared before plaintiff could discover the tortfeasor.” Id. at 449 (Kelly, J.,
dissenting). If the facts of Trentadue did not warrant invoking equitable estoppel, then the facts
of this case do not warrant invocation of the doctrine. Moreover, the difficulty in applying
equitable estoppel in this case, irrespective of Trentadue, is that the doctrine does not apply
absent intentional or negligent conduct designed to induce a plaintiff to refrain from bringing a
timely action, and the facts of this case do not establish that defendant engaged in such conduct.
Cincinnati Ins Co, supra at 270.
Despite that Trentadue precludes plaintiffs from invoking the discovery doctrine to
extend the time for filing their claims other than breach of warranty, the trial court erred by
granting summary disposition on statute of limitations grounds. The period of limitation in a
product liability action is three years. MCL 600.5805(13). This three-year period “runs from the
time the acclaim accrues,” which is defined as “the time the wrong upon which the claim is
based was done regardless of the time when damage results.” MCL 600.5827. To determine
whether the statute of limitations has expired, the circuit court must first identify both “the wrong
upon which the claim is based,” and the date the “wrong” was done. Our Supreme Court has
explained that this calculation is intended to yield “the date on which the plaintiff was harmed by
the defendant’s negligent act, not the date on which the defendant acted negligently.” Stephens v
Dixon, 449 Mich 531, 534-535; 536 NW2d 755 (1995); see also Trentadue, supra at 388 (“The
wrong is done when the plaintiff is harmed rather than when the defendant acted.”) (internal
quotation omitted). After determining the date on which the plaintiff sustained the injury
underlying a claim, the circuit court must determine whether the plaintiff filed a lawsuit within
three years of that date. Because the circuit court employed a discovery rule analysis rather than
the plain language of MCL 600.5827, we remand for reconsideration of the applicable date of
accrual for each plaintiff, based on proper statutory criteria.
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In sum, the trial court erred in applying the discovery doctrine and granting defendant’s
motion for summary disposition. In granting summary disposition, the trial court did not
distinguish between plaintiffs’ product liability/failure to warn claims and plaintiffs’ claims
based on other theories of negligence. To the extent that the trial court granted summary
disposition of plaintiffs’ negligence claims based on the discovery doctrine, this ruling was
erroneous. We therefore remand for the trial court to determine the accrual date for each
plaintiff’s negligence10 claim or claims in light of Trentadue.11
B. Sophisticated User Doctrine
Defendant argues that the trial court erred in denying its motion for summary disposition
based on the sophisticated user doctrine. According to defendant, the trial court erred in
applying Bock rather than the statutory sophisticated user doctrine, MCL 600.2947(4), and if the
trial court had applied the statutory sophisticated user doctrine, as it should have, it would have
granted defendant’s motion for summary disposition.
The trial court relied on Bock in denying defendant’s motion for summary disposition. In
Bock, this Court held that “‘[a] manufacturer’s liability to a purchaser or a user of its product
should be assessed with reference to whether its conduct, including the dissemination of
information about the product, was reasonable under the circumstances.’” Bock, supra at 714,
quoting Antcliff v State Employees Credit Union, 414 Mich 624, 630; 327 NW2d 814 (1982).
The facts in Bock are similar to the facts of the instant case. The plaintiffs, GM employees at the
Flint engine plant, filed suit based on their exposure to MWFs. One of the defendants,
Cincinnati Milacron (CM), supplied the MWFs to GM in bulk. Notwithstanding the rule that a
commercial enterprise that uses bulk materials is a sophisticated user as a matter of law, this
Court in Bock held that the trial court properly denied Cincinnati Milacron’s motion for summary
disposition under the sophisticated user doctrine “where the circumstances surrounding the
relationship between defendant GM and defendant CM were not defined by contract, were
unclear from the record provided, and were premised on credibility assessments.” Bock, supra at
715.
On March 28, 1996, Michigan enacted tort reform legislation,12 which included the
statutory sophisticated user doctrine. The statutory sophisticated user doctrine provides that “a
manufacturer or seller is not liable in a product liability action for failure to provide an adequate
warning if the product is provided for use by a sophisticated user.” MCL 600.2947(4). A
“sophisticated user” is:
10
However, because summary disposition of plaintiffs’ product liability/failure to warn claims
was proper under the sophisticated user doctrine, see infra, we do not remand for the trial court
to determine the accrual date for those claims.
11
In light of Trentadue, we would urge the Legislature to enact statutory discovery rules for
product liability actions involving latent injuries and other cases in which a plaintiff suffers a
latent injury or is otherwise unable to discover the existence of a cause of action.
12
1995 PA 249, effective March 28, 1996.
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a person or entity that, by virtue of training, experience, a profession, or legal
obligations, is or is generally expected to be knowledgeable about a product’s
properties, including a potential hazard or adverse effect. An employee who does
not have actual knowledge of the product’s potential hazard or adverse effect that
caused the injury is not a sophisticated user. [MCL 600.2945(j).]
The trial court erred in relying on Bock rather than the statutory sophisticated user
doctrine in deciding defendant’s sophisticated user motion. Plaintiffs’ action was filed in
November 1999, well after the March 28, 1996, effective date of Michigan’s tort reform
legislation. In Greene v A P Products, Ltd, 475 Mich 502; 717 NW2d 855 (2006), which was
decided about three weeks before the trial court entered its August 7, 2006, opinion and order in
this case, the Michigan Supreme Court held that Michigan’s tort reform legislation displaced the
common law sophisticated user doctrine: “Before 1995, a manufacturer’s or seller’s duty to
warn of material risks in a product-liability action was governed by common-law principles.
Tort reform legislation enacted in 1995, however, displaced the common law.” Greene, supra at
507-508 (footnote omitted). Relying on Greene, the federal district court for the Eastern District
of Michigan also recently concluded that reliance on Bock rather than the statutory sophisticated
user doctrine is erroneous. Irrer v Milacron, Inc, 484 F Supp 2d 677 (ED MI, 2007). According
to the Irrer court: “As the Michigan Supreme Court recently observed, Michigan’s tort reform
legislation ‘displaced the common law.’ . . . Accordingly, Plaintiffs’ reliance on common law
principles applied in Bock v General Motors Corporation, 247 Mich App 705, 637 N.W.2d 825,
830-31 (2001) is misplaced as that action was filed before the March 28, 1996, effective date of
Michigan’s tort reform legislation.” Irrer, supra at 680 (footnote omitted). Because plaintiffs’
action in this case was filed in October 1999, more than three years after the tort reform
legislation was enacted on March 28, 1996, the trial court should have relied on the statutory
sophisticated user doctrine in deciding defendant’s motion for summary disposition. Greene,
supra at 507-508.
In light of Greene, the proper inquiry in this case is whether GM is a sophisticated user
under MCL 600.2945(j). As stated above, a sophisticated user is “a person or entity that, by
virtue of training, experience, a profession, or legal obligations, is or is generally expected to be
knowledgeable about a product’s properties, including a potential for hazard or adverse effect.”
MCL 600.2945(j). Although the trial court applied Bock rather than the statutory sophisticated
user doctrine, the trial court acknowledged that if the statutory sophisticated user doctrine
applied, GM was a sophisticated user, and summary disposition in favor of defendant would
have been proper. We likewise conclude that GM is a sophisticated user of draw compounds.
GM operates the largest stamping and metal forming operations in North America and is the
largest automotive manufacturer in the world. As a result of GM’s long history of manufacturing
automobiles, it has had decades of experience with draw compounds and MWFs. The Flint
Metal Fabricating Plant opened its doors in 1954, and employees there have therefore been using
draw compounds for decades. Defendant itself has been supplying draw compounds to the Flint
Metal Fabricating plant since 1985. GM uses large quantities of draw compounds on a daily
basis in the production of automobiles. Based on its position in the automobile industry and its
experience using draw compounds and MWFs, GM must generally be expected to be
knowledgeable about MWFs and draw compounds and their potential hazardous effects.
-11-
The fact that GM purchases the draw compounds from defendant in bulk also supports
the conclusion that GM is a sophisticated user. GM purchases the draw compounds from
defendant in bulk quantities; defendant delivers the draw compounds to GM in large containers
called totes, which contain several hundred gallons of chemical compounds. The draw
compounds are then pumped from the totes and applied during the stamping and metal forming
process. Commercial users of bulk materials must generally be regarded as sophisticated users
as a matter of law. Aetna Casualty & Surety Co v Ralph Wilson Plastics Co, 202 Mich App 540,
546; 509 NW2d 520 (1993).13
GM has also been a leader in studies involving the health effects of exposure to
machining fluids. In 1983, the GM-UAW Occupational Health Advisory Board (OHAB) issued
a request for proposals concerning the health effects of exposure to machining fluids. The
objective was “to determine whether current exposure of GM employees to machining and
grinding fluids such as soluble oils, non-soluble cutting oils, semi-synthetic, or synthetic cutting
fluids or coolants are associated with adverse health effects.” The Harvard School of Public
Health was awarded the contract. In the course of the study, the Harvard School of Public
Health studied “almost 50,000 workers and an exposure assessment of more than one million
jobs” at three GM production facilities. GM’s involvement with this groundbreaking study,
which is widely known in the industry as the Harvard Study, is evidence of its vast experience
with safety issues involving chemicals, such as the draw compounds at issue in the present case.
For all the reasons outlined above, we conclude that GM is a sophisticated user of draw
compounds.
Plaintiffs argue that as GM employees, they were not sophisticated users. Under MCL
600.2945(j), “[a]n employee who does not have actual knowledge of the product’s potential
hazard or adverse effect that caused the injury is not a sophisticated user.” Plaintiffs contend that
MCL 600.2945(j) carves out an exception to the definition of a sophisticated user and that
because they had no actual knowledge of the dangers of draw compounds and defendant failed to
warn them of such dangers, they were not sophisticated users. The trial court rejected this
argument, stating:
In analyzing Plaintiffs’ contention, this Court must review the wording of the
statute itself to discern legislative intent by giving each word in the statute
meaning and eschewing extended interpretation absent ambiguity in the wording
of the statute. See generally In re MCI, 460 Mich 396, 411 (1999). Having
considered the foregoing, the Court is left with the belief that the wording of the
statute delineates two different, and separate, definitions for sophisticated users.
Integral to the definitions is the status of knowledge of the non-employee and
13
Although Aetna predates the effective date of the tort reform legislation, this Court has
recognized the continued validity of the rule that commercial enterprises that use materials in
bulk are sophisticated users as a matter of law. See, e.g., Kitzner v Houghton Fluid Care,
unpublished opinion per curiam of the Court of Appeals, decided January 18, 2007 (Docket No.
265148).
-12-
employee of the hazard and effects of a product. Concerning the employee, to be
a sophisticated user the employee must have “actual knowledge” where a lesser
standard is called for regarding the non-employee’s knowledge. The Court sees
no dependency between the definitions. As Quaker does not claim GM’s
employees are sophisticated users, any claim that the employees did not have
actual knowledge is irrelevant to Quaker’s claim that GM is a sophisticated user.
Accordingly, GM may fit the definition of a sophisticated user even if its
employees do not.
The trial court properly analyzed this issue. In moving for summary disposition,
defendant argued that GM, not its employees, was a sophisticated user under MCL 600.2945(j).
The plain language of MCL 600.2945(j) encompasses two separate definitions of a sophisticated
user. The first definition applies to an entity that is not an employee, and the second definition
applies specifically to an employee. Under MCL 600.2945(j), an entity that is not an employee
is a sophisticated user if it is “generally expected to be knowledgeable about a product’s
properties, including a potential hazard or adverse effect.” An employee is a sophisticated user
only if the employee has “actual knowledge of the product’s potential hazard or adverse effect
that caused the injury[.]” MCL 600.2945(j).
MCL 600.2947(4) does not require both the employer and its employees to be
sophisticated users for the sophisticated user defense to apply. This Court will not read anything
into a statute that is not within the manifest intent of the Legislature as gleaned from the
language of the statute itself. Universal Underwriters Ins Group v Auto Club Ins Ass’n, 256
Mich App 541, 544; 666 NW2d 294 (2003). MCL 600.2947(4) provides that a manufacturer is
not liable for failing to warn “if the product is provided for use by a sophisticated user.” In this
case, defendant provided the draw compounds to GM for GM’s use in producing automobiles.
Furthermore, the rationale for the sophisticated user doctrine also undermines plaintiffs’
argument that the sophisticated user defense does not apply unless plaintiffs, employees of GM
and the ultimate users of the draw compounds, were sophisticated users. The rationale behind
the sophisticated user doctrine is that “where a purchaser is a ‘sophisticated user’ of a
manufacturer’ product, the purchaser is in the best position to warn the ultimate user of the
dangers associated with the product, thereby relieving the sellers and manufacturers from the
duty to warn the ultimate user.” Portelli v I R Constr Products Co, Inc, 218 Mich App 591, 599;
554 NW2d 591 (1996). Thus, the manufacturer markets a particular product to professionals that
are presumed to have experience in using and handling the product, and because of this special
knowledge, the sophisticated user will be relied upon by the manufacturer to disseminate
information to the ultimate users regarding the dangers associated with the product. Id. at 601.
Hence, the manufacturer is relieved of the duty to warn. Id. Because GM was a sophisticated
user and plaintiffs, as GM’s employees, were the ultimate users of the draw compounds, GM was
in the best position to disseminate information to plaintiffs, the ultimate users of the draw
compounds, of the dangers associated with the use of the draw compounds. The status of GM’s
employees as sophisticated users or not does not impact whether GM itself is a sophisticated
user. Therefore, whether plaintiffs are sophisticated users is irrelevant to whether GM is a
sophisticated user and to whether summary disposition is appropriate under the sophisticated
user doctrine.
-13-
Plaintiffs also argue that summary disposition based on the sophisticated user doctrine is
improper in light of the actual knowledge exception to the sophisticated user doctrine, MCL
600.2949a, which provides:
In a product liability action, if the court determines that at the time of manufacture
or distribution the defendant had actual knowledge that the product was defective
and that there was a substantial likelihood that the defect would cause the injury
that is the basis of the action, and the defendant willfully disregarded that
knowledge in the manufacture or distribution of the product, then sections
2946(4), 2946a, 2947(1) to (4), and 2948(2) do not apply. [Footnote omitted.]
According to plaintiffs, the sophisticated user doctrine does not apply to this case because
defendant had actual knowledge that the draw compounds at issue were defective and that there
was a substantial likelihood that that the defect in the chemicals would cause the injuries that are
the basis for plaintiffs’ action. The trial court rejected plaintiffs’ argument, stating that the
record established that the draw compounds were hazardous, but not defective. According to
plaintiffs, the deposition testimony of William Skowronek, Katherine Coughenour and Kathryn
Strang14 established defendant’s “actual knowledge.” In Skowronek’s deposition, he asserted
that he was aware of a concern in the industry that diethanolamine (DEA), which is found in
MWFs and draw compounds, could potentially be a cancer-causing carcinogen and that as a
result of that concern, “Quaker and General Motors made a conscientious decision, while we are
developing new product, let’s not include DEA in it.” In the portion of Coughenour’s deposition
cited by plaintiffs, she asserted that she was aware of a possible association between
microbacteria MWFs and hypersensitive pneumonitis. In the portion of Strang’s deposition cited
by plaintiffs, she asserts that DEA is considered toxic and that DEA can cause eye irritation and
be toxic if ingested or absorbed through the skin.
Even accepting Skowronek’s, Coughenour’s and Strang’s statements as true, they
establish at most that draw compounds and MWFs are dangerous or hazardous materials, which
defendant does not deny. The Supreme Court has recognized that a product is unreasonably
dangerous and therefore defective so that its supplier is liable for personal injuries sustained by
its use if the product is not reasonably safe for its foreseeable uses. Fredericks v General Motors
Corp, 411 Mich 712, 720; 311 NW2d 725 (1981). The language used in MCL 600.2949a
requires the defendant to have “actual knowledge that the product was defective[.]” Plaintiffs
assert that defendant had “actual knowledge . . . regarding the adverse health effects form [sic]
its draw compounds” and “actual knowledge about the dangers of its draw compounds.” This is
not sufficient to establish that plaintiffs had actual knowledge that the draw compounds were
defective, however. Furthermore, while inadequate warnings may constitute a defect, plaintiffs
have not established an issue of fact regarding whether defendant willfully disregarded any
knowledge of the dangers of DEA and MWFs in regards to any failure to warn. Thus, we find
that plaintiffs did not establish an issue of fact under MCL 600.2949a regarding whether
defendant had actual knowledge that its draw compounds were defective.
14
Skowronek, Coughenour and Strang were all employed by defendant.
-14-
In sum, for the reasons articulated above, we hold that the trial court erred in applying the
common law sophisticated user doctrine under Bock rather than the statutory sophisticated user
doctrine. Applying the statutory sophisticated user doctrine, GM was a sophisticated user of
defendant’s draw compounds.
Therefore, summary disposition of plaintiffs’ product
liability/failure to warn claims was proper on this basis. However, in applying the common law
sophisticated user doctrine, the trial court did not distinguish between plaintiff’s product
liability/failure to warn claims and plaintiffs’ claims based on other theories of negligence and
did not specifically address application of the doctrine to plaintiffs’ other negligence claims.
According to its own language, application of the sophisticated user doctrine is limited to
“product liability action[s] for failure to provide an adequate warning . . . .” MCL 600.2947(4).
To the extent that plaintiffs’ amended complaint contains negligence claims that do not
constitute product liability claims based on a failure to warn, the sophisticated user doctrine does
not bar those claims.
C. Other Issues
Defendant argues that the trial court erred in failing to apply MCL 600.2948(2) and
analyze whether that statute relieved it of liability. MCL 600.2948(2) provides that “[a]
defendant is not liable for failure to warn of a material risk that is or should be obvious to a
reasonably prudent product user or a material risk that is or should be a matter of common
knowledge to persons in the same or similar position as the person upon whose injury or death
the claim is based in a product liability action.” Although the trial court quoted the language of
MCL 600.2948(2) in its opinion, it did not address defendant’s MCL 600.2948(2) argument.
Therefore, the issue is not preserved for this Court’s review. Fast Air, Inc v Knight, 235 Mich
App 541, 549; 599 NW2d 489 (1999). In any event, any error or omission on the part of the trial
court in this regard was harmless because summary disposition in favor of defendant is proper
based on the statutory sophisticated user doctrine. MCR 2.613(A).
Defendant also argues that the trial court erred in denying its motion for summary
disposition because plaintiffs failed to offer evidence that defendant was the proximate cause of
plaintiffs’ injuries. The trial court’s opinion and order did not address this argument, however,
and it is therefore not preserved for this Court’s review. Knight, supra at 549.
IV. CONCLUSION
The trial court erred in applying the discovery doctrine and granting defendant’s motion
for summary disposition based on the statute of limitations. We therefore reverse and remand for
the trial court to determine the accrual date for each plaintiff’s negligence claim or claims in light
of Trentadue. The trial court also erred in denying summary disposition of plaintiff’s product
liability/failure to warn claims based on the sophisticated user doctrine; however, the
sophisticated user doctrine does not preclude plaintiffs’ negligence claims unrelated to product
liability or failure to warn theories. We therefore reverse and remand for entry of an order
granting summary disposition of plaintiff’s product liability/failure to warn claims based on the
sophisticated user doctrine.
-15-
Reversed and remanded. We do not retain jurisdiction.
/s/ Stephen L. Borrello
/s/ Elizabeth L. Gleicher
Schuette, J., not participating, his term of office having expired on January 1, 2009.
-16-
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