United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
matter is presently before the Court on defendants'
motion to dismiss [docket entry 9]. Plaintiff has filed a
response in opposition. Pursuant to E.D. Mich. 7.1(f)(2), the
Court shall decide this motion without a hearing.
a product liability, negligence, and wrongful death action.
Plaintiff, on her own behalf and as the administrator of the
estate of Lawrence Kelsey, alleges that decedent contracted
cancer and died as a result of his exposure to
“solvents, inks, and blends of inks for use in the
printing industry . . . made by defendants.” Am. Compl.
¶ 18. Decedent was diagnosed in March 2013, and he died
in May 2014. Plaintiff commenced the instant action in
argue that the complaint should be dismissed because it was
filed after expiration of the applicable three-year
limitations period. They point to Mich. Comp. Laws §
600.5827, which states that with exceptions not applicable
here, a “claim accrues at the time the wrong upon which
the claim is based was done regardless of the time when
damage results.” Defendants further argue that the
wrong alleged in this case was done, at the latest, when
decedent was diagnosed or when he died. Because the complaint
was filed more than three years after either of these events,
defendants suggest that the complaint must be dismissed as
response, plaintiff appears to concede that Michigan law
applies and that her claims are subject to a three-year
limitations period. The dispute is over the event that
triggers commencement of that period. Plaintiff argues that
it was not until December 2017 that she first learned that
defendants may have supplied inks to one of decedent's
employers. Plaintiff indicates that on December 5, 2017, she
deposed Kevin Miles, the manager of a plant where decedent
once worked, and that Miles “identified Flint Ink as a
supplier of ink” that was used in a printing press
decedent operated. Pl.'s Resp. at 2-3. Citing Yustick
v. Eli Lilly & Co., 573 F.Supp. 1558 (E.D. Mich.
1983), plaintiff argues that her claims did not accrue until
she obtained Miles' testimony because “the
defendant must be identified as responsible for the product
which caused the injury before a cause of action
accrues.” Pl.'s Resp. at 4.
Yustick, this Court held that plaintiff's
products liability claim “did not accrue within the
meaning of the Connelly test until plaintiff
discovered the identity of the 600.5805(10). The same
limitations period applies to product liability actions.
See Mich. Comp. Laws § 600.5805(13).
tort-feasor.” Id. at 1562. Connelly,
in turn, was a product liability action in which the Michigan
Supreme Court stated that “the cause of action accrues
when all of the elements of the cause of action have occurred
and can be alleged in a proper complaint, ” i.e., duty,
breach, causation, and damages. Connelly v. Paul
Ruddy's Equip. Repair & Serv. Co., 388 Mich.
146, 150 (1972). In Yustick, the Court believed that
“the defendant must be identified as responsible for
the product which caused the injury before a cause of action
accrues.” 573 F.Supp. at 1562.
cannot be reconciled with a more recent decision of the
Michigan Supreme Court that spoke directly to the issue
raised in the instant motion, i.e., whether a claim accrues
when defendant harms plaintiff or when plaintiff learns the
wrongdoer's identity. In Trentadue v. Gorton,
479 Mich. 378 (2007), plaintiff's decedent was murdered
in 1986, but the murderer's identity was not learned
until DNA testing was performed in 2002. Plaintiff then
promptly filed suit against the murderer for wrongful death
and various others for negligence. The issue on appeal was
whether the negligence claims were barred by the three-year
statute of limitations. Both the trial court and the Michigan
Court of Appeals held that the common law discovery rule
tolled the limitations period until the murderer's
identity was learned because only then could plaintiff know
of his claims and whom to sue. The Michigan Supreme Court
reversed, holding that the common law discovery rule (which
states that “a claim does not accrue until a plaintiff
knows, or objectively should know, that he has a cause of
action and can allege it in a proper complaint”) has
been abrogated by § 600.5827, except as that statute
specifically indicates or as allowed by another statute, e.g.,
§ 600.5839 (claims against architects, engineers, and
contractors) or in the event of fraudulent concealment. The
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 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 N.W.2d 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. This is a power the Legislature has
because such a statute of limitations bears a reasonable
relationship to the permissible legislative objective of
protecting defendants from stale or fraudulent claims.
Id. at 672.
of Trentadue to the present case is straightforward.
Plaintiff's product liability and wrongful death claims
accrued in March 2013 and May 2014, respectively, because
those are the dates when decedent allegedly was harmed by the
inks and solvents manufactured or supplied by defendants.
Plaintiff had three years from those dates, not from the date
when she discovered defendants' involvement, to file suit
because the common law discovery rule has been abolished in
Michigan except as to certain types of claims which are not
alleged in this case. Nor does plaintiff suggest that the
limitations period should be tolled due to defendants'
fraudulent concealment of the existence of her claims or of
claims are plainly time-barred. When, as here, “the
allegations show that relief is barred by the applicable
statute of limitations, dismissal is proper under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim.”
G.G. Marck & Assocs. v. Peng, No. 18-3399, 2019
WL 460404, at *3 (6th Cir. Feb. 6, 2019). Accordingly, IT IS
ORDERED that defendants' motion to dismiss is granted.