SANDOR SZABO AND JOAN SZABO, HIS WIFE, APPELLANTS,
v.
ASHLAND OIL COMPANY, EXXON CORPORATION, ALLEN CHEMICAL COMPANY, AND BOSTICK CHEMICAL, A DIVISION OF USM CORPORATION, APPELLEES

Fla. 3d DCA | 1984-03-27
No. 83-9
Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
448 So. 2d 549 Florida District Court of Appeal, Third District (1984) Caution
Cited by 4 cases

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Holding

The court held that the plaintiff's deposition testimony regarding when he learned of a potential causal link between his illness and chemical exposure was not dispositive of the statute of limitations issue, and his physician's affidavit raised a material factual issue.


Headnotes

[1] A party's deposition testimony regarding the timing of a physician's statement about a potential causal relationship between workplace exposure and illness is not disposi…

[2] A physician's affidavit stating when medical science first established a causal relationship between specific products and a disease can constitute the only evidence on a…

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Facts & Procedural History

Plaintiff sued multiple defendants for employment-related chemical exposure injuries, with the action filed after the statute of limitations expired. …

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Opinion of the Court
FERGUSON, Judge.

FERGUSON, Judge.

Plaintiff brought suit against nine defendants, alleging injury in the course of his employment from exposure to chemical products manufactured by the defendants. Motions for summary judgment were made by four of the defendants on the ground that the action was barred by the statute of limitations.1 The defendants’ motions were supported by plaintiff’s own testimony on deposition wherein he .stated, with uncertainty, when he first learned that his injuries might be causally related to these chemical products. The testimony was as follows:

Q. Approximately when was it that Dr. Schwartzman told you that he thought that you had some form of illness that was associated or that this numbness was caused by something that you were being exposed to at work?

A. (No response.)

Q. When did he tell you that?

A. I cannot tell you exact time.

Q. Give me a year. A. I would say ’74 or ’75.

This action, which is governed by a four-year statute of limitations,2 was not filed until June, 1981. Based upon plaintiff’s testimony, the court entered summary judgment for defendants.

Plaintiff relied on an affidavit by his physician, which was attached to a motion for rehearing of the summary judgment motions, as setting up a factual issue requiring the trial court to reverse its judgment. In that affidavit, Dr. Schwartzman avers that it was not until approximately December, 1977, that he informed the plaintiff of a causal relationship between the chemical products used by the plaintiff in his employment and the disease which is the subject of the lawsuit. Dr. Schwartz-man further alleges that it was in 1977 that medical science first established a causal relationship between the use of such products and the disease.

Defendants, citing Kramer v. Landau, 113 So. 2d 756 (Fla. 3d DCA 1959), contend that plaintiff’s testimony is binding on him and that he should not be permitted, by the affidavit of another person, to repudiate his previous deposition testimony so as to create a jury issue without an attempt to excuse or explain the discrepancy. Conceding a material variance between the testimony of the plaintiff and the affidavit of the physician, plaintiff relies on Willage v. Law Offices of Wallace and Breslow, 415 So. 2d 767 (Fla. 3d DCA 1982). Willage holds that a party may give a subsequent affidavit for the purpose of explaining testimony given in a prior affidavit or deposition, as long as the explanation is credible.

The principles of law from Kramer and Willage, although their application is made tempting by the parties, would serve only to cloud the real issue.

The cited cases are inapposite because Dr. Schwartzman’s affidavit does not dispute plaintiff’s earlier testimony on a material issue. The question propounded to plaintiff did not address the ultimate question — when plaintiff knew or reasonably should have known that he had a cause of action against the named defendants. Rather, the question was when did Dr. Schwartzman tell plaintiff that he thought there was a causal relationship between the illness and “something that [plaintiff was] being exposed to at work.” The answer to the propounded question may be probative of, but is not dispositive of, the ultimate question. Dr. Schwartzman’s affidavit was, more precisely, the only evidence on a material issue, i.e., when did medical science first establish to a reasonable certainty, a cause and effect relationship between the subject solvents and peripheral poly-neutritis. See Brown v. Armstrong World Industries, 441 So. 2d 1098 (Fla. 3d DCA 1983) (defendants who rely on statute of limitations must show that cause and effect relationship between product and injury could have been established to a reasonable medical certainty before time for bringing action had expired).

The record shows that, on the statute of limitations question, the defendants simply failed in their burden to demonstrate conclusively the absence of a genuine issue of material fact. See Perez v. Universal Engineering Corp., 413 So. 2d 75 (Fla. 3d DCA 1982) (summary judgment was inappropriate where movants failed to show conclusively that plaintiff knew or should have known earlier of existence of cause of action).

We do, however, affirm the summary judgment in favor of appellee Allen Chemical Company for reasons advanced below but not ruled upon by the trial judge. See Hester v. Gatlin, 332 So. 2d 660, 663 (Fla. 2d DCA 1976) and cases cited therein. Allen’s sworn statement that it was not a manufacturer, distributor, or seller of the products in question was not disputed in the trial court, nor is it challenged here on appeal. We have reviewed the additional contentions of the other appellees, and find that they are without merit.

Affirmed in part; reversed in part, and remanded.

. The defendants also asserted other grounds as a basis for summary judgment. While noting that these other grounds appeared to have merit, the trial court ruled only on the statute of limitations defense.

. § 95.11(3), Fla.Stat. (1981).


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Cited By

  • Landis v. Allstate Ins. Co., 546 So. 2d 1051 (Fla. 1989)
    …to the correctness of the decision of the lower court, regardless of the reasons or theories assigned therefor. In re Estate of Yohn, 238 So. 2d 290, 295 (Fla.1970). This rule applies in cases of summary judgments as well. Szabo v. Ashland Oil Co., 448 So. 2d 549 (Fla. 3d DCA), review denied, 453 So. 2d 43 (Fla. 1984); Hester v. Gatlin, 332 So. 2d 660 (Fla. 2d DCA 1976). Therefore, the district court correctly addressed the issue of the intentional acts exclusion despite the trial court’s reliance on the bus…
  • Sandor Szabo and Joan Szabo v. Essex Chem. Corp., 461 So. 2d 128 (Fla. 3d DCA 1984)
    …] effect the service, impaired the sufficiency of process and did not toll the statute of limitation, nor did service relate back to the date of filing of the complaint. All parties to this appeal agree that our holding in Szabo v. Ashland Oil Co., 448 So. 2d 549 (Fla. 3d DCA 1984), is dispos-itive of the first issue — whether the trial court erred in granting summary judgment in favor of Essex on the grounds that the action was barred by the statute of limitations. Therein we held that a certain affidavit f…
  • Landis v. Allstate Ins. Co., 516 So. 2d 305 (Fla. 3d DCA 1987)
    …record, whether or [*307] not it was relied upon below. In Re Estate of Yohn, 238 So. 2d 290 (Fla.1970). Contrary to the appellant’s contention, this principle fully applies to summary judgment proceedings such as this one. Szabo v. Ashland Oil Co., 448 So. 2d 549 (Fla. 3d DCA 1984), pet. for review denied sub nom. Exxon Corp. v. Szabo, 453 So. 2d 43 (Fla.1984); Crown Life Ins. Co. v. Garcia, 424 So. 2d 893 (Fla. 3d DCA 1982); Hester v. Gatlin, 332 So. 2d 660 (Fla. 2d DCA 1976). The case cited for the contrar…

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