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Jury to decide which state statute of limitations applies, said 8th Circuit

On the question of whether Missouri’s statute of limitations applies to the premises liability claim of a Missouri trucker who experienced arm numbness in Illinois, an 8th U.S. Circuit Court of Appeals Nov. 15 opinion leaves that decision up to a jury.

Gregory Burdess is a car hauler for Cottrell, a Wentzville, Missouri company. In 2013, 18 hours after operating Cottrell’s ratchet system to secure cars to be hauled in transit, he woke up in an Illinois hotel with arm numbness. He was diagnosed in Missouri three weeks later of bilateral shoulder impingement syndrome. Four years later, he brought his claim against Cottrell, claiming Cottrell’s ratchet system caused his symptoms.

Medical records from Burdess’ employer revealed that he had reported multiple past injuries since working there in 2001. The U.S. District Court for the Eastern District of Missouri determined that Burdess’ pain originated in Illinois and that the state’s two-year statute of limitations, not Missouri’s five years, applied in his case.

Cottrell claims the Illinois statute of limitations applies to Burdess’ claim because he first experienced pain and numbness in Illinois, and Missouri’s borrowing statute prohibits people from “forum shopping” to take advantage of the five-year statute of limitations in a Missouri court.

The Missouri Supreme Court’s 2006 decision in Powel v. Chaminade College Prepatory outlined a test determining how to judge whether a case can rely on Missouri’s statute of limitations based on the borrowing statute. The court determined that a claim must be “potentially actionable” and that a “reasonable person” bringing forth a claim must know that a claim is possible.

The district court granted summary judgment favoring Cottrell’s argument, relying on the borrowing statute’s requirements outlined in Powel for a claim to be “potentially actionable” to apply Missouri’s statute of limitations, but not the second requirement.

Burdess, who is joined in the suit by his wife, appealed while calling for Missouri’s statute of limitations to be applied based on his diagnosis three weeks after he woke up with symptoms.  The 8th Circuit reversed the summary judgment, relying on the second standard outlined in Powel, but not the first.

“Historically, Missouri courts have looked to when a reasonably prudent person would have connected the damages to the cause thereof to determine when a plaintiff’s cause of action originated,” Judge Bobby Shepherd wrote.

Judges Jane Kelly and L. Steven Grasz concurred.

The opinion did not see Powel as altering the test, though it did not reference Missouri case law determining that a plaintiff’s statute of limitations began until that plaintiff was aware of their condition and cause.

“In Powel, the Supreme Court of Missouri did not discuss this line of cases, but it did rely on its decisions from the prior 40 years in clarifying Missouri’s capable-of-ascertainment standard,” Grasz wrote.

The 8th Circuit left the decision to apply either Missouri or Illinois statute of limitations to a jury. It relied on case law crowned with its own 2019 decision in Levitt v. Merck & Co., in which it determined a jury must decide when multiple valid legal conclusions can spring from the same evidence.

The court also remanded the case with instructions for the court on those possible conclusions.

“There is nothing (notwithstanding his prior work-related injuries discussed below) in the record to definitively show any specific connection between the use of the Cottrell ratchet system and the injury to his shoulders,” Shepherd wrote.

The 8th Circuit noted that a 2002 injury was attributed to the same ratchet system, but the effects of the 2002 injury were immediate in comparison to Burdess’ injury at issue, during which he experienced delayed symptoms almost 18 hours after he had used the ratchet system to secure cars.

“We hold only that, when reviewing all of the facts in this record in the light most favorable to Burdess, the law does not compel us to find, as a matter of law, that this causal connection was capable of ascertainment in Burdess’s Illinois motel room on April 5, 2013,” Shepherd wrote.

The case returns to a jury before the district court with Judge John Ross presiding.

Daniel J. Carpenter of Carpenter Moser in St. Louis represents Cottrell in the matter. He declined to comment on the case at this time.

Brian M. Wendler of Wendler & Zinzilieta in Edwardsville, Illinois represents the Burdesses. He has faced Carpenter’s representation of Cottrell in similar premises liability cases regarding the same product in multiple states, and he said he was pleased to be able to return to business as usual before a jury.

“This particular defendant is rather notorious for delaying things,” Wendler said. “So I suspect that if there is a way of delaying things further by way of asking for an en banc review or something like that, they will probably do that.”

The case is Gregory Burdess v. Cottrell, Inc., 21-2028.