![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]>
Not a Lexis+ subscriber? Try it out for free.
LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
JACKSON, Miss. - (Mealey's) A divided Mississippi Supreme Court overturned a $1.8 million judgment for a welder Dec. 9 because his complaint alleging that exposure to welding fumes caused neurological injuries was not timely filed (Lincoln Electric Co., et al. v. Stanley McLemore, No. 09-320, Miss. Sup.).
Stanley McLemore was awarded $1.8 million Nov. 26, 2008, in the Copiah County Circuit Court. McLemore alleges claims against The Lincoln Electric Co., The ESAB Group Inc. and Hobart Brothers for failing to warn of the risks of manganese in welding consumables.
The companies appealed.
The only question reached by the court was the timeliness of McLemore's complaint.
McLemore was diagnosed with manganism by Dr. Michael Swash, a neurologist at the Royal London Hospital in the United Kingdom. Swash was McLemore's main witness at trial, according to the record.
McLemore was diagnosed in September 2002 with Parkinsonism by neurologist Joseph Farina, M.D., according to the record. Farina informed McLemore that the Parkinsonism may be related to welding.
McLemore avers that he learned that he had manganism in 2005, according to the record. But he filed several lawsuits starting in February 2003. The defendants were not served with a complaint until March 2006.
Angle v. Koppers Inc. (42 So. 3d 1 ;Miss. 2010]) is the controlling authority, Justice David A. Chandler wrote for the majority.
"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," according to the majority. "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 under his diagnosis fails under this Court's holdings in Angle and Lowery [PPG Architectural Finishes Inc. v. Lowery, 909 So. 2d 47 (Miss. 2005)]."
Justices George C. Carlson Jr., Jess H. Dickinson, Michael K. Randolph, Ann H. Lamar, Randy G. Pierce and Chief Justice William L. Waller Jr. joined the majority opinion.
Justice James W. Kitchens filed a dissent, citing his dissent in Angle. "However, even if I were to accept that the statute of limitations begins to run on the date of injury, I still would disagree with today's holding," according to Justice Kitchens. "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."
Judge James E. Graves Jr. joined the dissent.
[Editor's Note: Full coverage will be in the December 2010 issue of Mealey's Litigation Report: Welding Rods. In the meantime, the opinion is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844. Document #70-101214-007Z. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]
Download the document now:
Mealeysonline.com - Document #70-101214-007Z
For more information, call editor Bill G. Lowe at 610-215-7733, or e-mail him at firstname.lastname@example.org.