Nina Simone v. Etta James Corp. (updated) | Joseph William Singer | October 28, 2014

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Nina Simone v. Etta James Corp. (updated)

Nina Simone worked for 25 years installing asbestos insulation into buildings in Chicago, Illinois from 1955 through 1975. In 1984, she moved to Ithaca, New York where she has resided since then. In 1988, after experiencing a severe cough, she was diagnosed with asbestosis, a serious but not fatal disease. One year later, she was diagnosed with mesothelioma, a deadly form of cancer now known to be caused by prolonged exposure to asbestos.

Simone brought a claim in state trial court (called the Supreme Court) in Ithaca, New York against Etta James Corp., the manufacturer and distributor of the products Simone had installed for many years. The corporate offices of Etta James Corp. are in New York City but its manufacturing facilities are located in Illinois. James moved to dismiss the complaint on the ground that the “cause of action” had “accrued” in Illinois and thus the New York borrowing statute, N.Y. Civ. Prac. L. & R. 202, required the New York court to apply the Illinois statute of limitations. The Illinois statute of limitations is a “statute of repose” barring strict products liability claims against the seller of the product more than 10 years after the product is sold, whether or not the claim is discoverable by the victim during that period. The trial judge accepted James’s argument, citing an old decision by the New York Court of Appeals holding that, for purposes of the New York borrowing statute, a cause of action accrues where the injury occurs, and that in cases of exposure to a chemical substance, the injury occurs at the time and at the place of exposure. See Schwartz v. Heyden Newport Cehm. Corp., 188 N.E.2d 142 (N.Y. 1963).

On appeal, the Appellate Division reversed. It noted that the New York statute of limitations used to start running at the time of exposure rather than at the time the illness was discovered but that New York had changed its law by statute in 1986, adopting a discovery rule under which the statute of limitations begins to run only when the plaintiff discovers or, with reasonable diligence, should have discovered, the injury. The spirit of this statute suggested that the claim had accrued in New York and that the New York borrowing statute was thus inapplicable. Since statutes of limitation are traditionally procedural for choice of law purposes, the court applied the New York discovery rule and held that, since Simone had sued within 3 years of discovering her illness, her claim was timely under New York law. James appealed to the New York Court of Appeals (the state’s high court).

N.Y. Civ. Prac. L. & R. 202 provides:

 

An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

 

N.Y. Civ. Prac. L. & R. 214-c provides:

 

[T]he three year period within which an action to recover damages for personal injury…caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or…must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence the injury should have been discovered, whichever is earlier….

 

Ill. Rev. Stat. ch. 735 §5/13-213 provides:

 

(b) Subject to the provisions of [subsection (d)] no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period.…

(d) Notwithstanding the provisions of subsection (b)…if the injury complained of occurs within any of the periods provided by subsection (b) …, the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death or property damage, but in no event shall such action be brought more than 8 years after the date on which such personal injury, death or property damage occurred. …

 

Ill. Rev. Stat. ch. 735 §5/13-210 provides:

 

§5/13-210. Foreign limitation

When a cause of action has arisen in a state or territory out of this State, or in a foreign country, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this State.

 

In Tanges v. Heidelberg North America, Inc., 710 N.E.2d 250 (N.Y. 1999), the New York Court of Appeals held that a Connecticut statute of repose applied to immunize a machine manufacturer from liability for harm to a New York resident on the job in Connecticut. The court held that the exception in the New York borrowing statute in favor of New York residents did not apply because the exception applies only if the claim "accrues" in another state. The court reasoned that because the Connecticut ten year statute of repose prevented a claim from ever accruing at all in Connecticut, the exception in the borrowing statute did not apply and Connecticut law therefore applied as the law of the place of the tort. The reasoning in Tanges suggested that if Connecticut law had been plaintiff-favoring (thus allowing a claim to "accrue" there) that the New York borrowing statute would have required application of the New York statute of limitations in favor of a New York resident. This means that if the New York statute of limitations were longer than the Connecticut statute of limitations, that the New York resident would have the benefit of the longer New York statute and be entitled to sue at home (assuming New York courts had jurisdiction over the defendant). Thus the court appeared to conclude that the New York legislature wanted to apply the shorter statute of limitations to favor the defendant unless the plaintiff were a New York resident but that if the shorter foreign statute of limitations went so far as to bar the claim from ever arising in the first place (a statute of repose rather than a statute of limitations) that the New York legislature wanted to deprive New York residents of the advantage of the longer New York statute of limitations.

The reasoning in Tanges is problematic because it creates a policy contradiction within the statute based on a formalistic interpretation of the word "accrued" rather than assuming that the statute should be interpreted in light of the policies it was intended to achieve. You should assume therefore that the parties in this case raised these criticisms of the Tanges decision and that the interpretation of the New York borrowing statute adopted in Tanges is open to reconsideration in this case; thus, it would be appropriate to argue that Tanges should be overruled. Tanges is also arguably distinguishable from this case (Simone v. James) because in this case the injury (manifestation of the illness) arguably occurred in New York and not at the place of the conduct (Illinois).

Further, in Global Financial Corp. v. Triarc Corp., 715 N.E.2d 482 (N.Y. 1999), the New York Court of Appeals held that the borrowing statute should be interpreted to mean that "accrual" of a claim occurs at the time and place of the "events" giving rise to the "injury" and that this determination should not be made by reference to ordinary choice-of-law analysis. This opinion has also been subjected to criticism and thus you should similarly assume that Triarc is also open for reconsideration and overruling in this case. Triarc is also arguably distinguishable from this case because it did not involve the questions relating to latent undiscoverable injuries.

On appeal of the case of Simone v. James to the New York Court of Appeals, two questions have been accepted for argument and resolution:

 

1. Does the New York borrowing statute require application of the Illinois statute of limitations (statute of repose), thus barring the plaintiff’s claim or is the New York borrowing statute inapplicable to plaintiff’s claim in this case?

 

2. If the New York borrowing statute does not apply of its own force to bar the claim because the “cause of action accrued” in the state of New York, is the claim nonetheless barred under the common law of conflict of laws by the Illinois statute of repose or is the claim timely under the New York statute of limitations?

 

π = Nina Simone

∆ = Etta James Corp.

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October 28, 2014

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Joseph William Singer

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