Donald C. WILLIAMS, Sr., Plaintiff-Appellant, v. E.I. DUPONT DE NEMOURS AND COMPANY, Defendant-Appellee, 11 F.3d 464

OPINION WIDENER, Circuit Judge: The appellant, Donald Williams, brought this action against E.I. DuPont de Nemours and Company (DuPont) alleging that he sustained injuries as a result of his use of DuPont’s paint products. Williams’s theory of liability was that DuPont had negligently failed to warn him of the hazards of its products and that DuPont had breached its express and implied warranties. The district court granted

summary judgment as a matter of law in favor of DuPont because it found that Williams had filed his lawsuit more than two years after the cause of action had accrued, and that it was therefore time barred under Virginia law. We affirm in part, vacate in part, and remand. The facts are taken at this stage of the proceeding most favorably to Williams. Williams worked as a spray painter with Baker Equipment Engineering from May 15, 1989 until July 26,1989.

In that employment he spray painted every day with DuPont paint products and claims exposure to those DuPont products for a period beginning May 15, 1989 and ending on or about June 13, 1989. Within a few days after beginning to use these products, Williams experienced dizziness, coughing, and chest tightness. Subsequently during this period of employment, Williams got sick six more times. Sometime prior to June 13, 1989, Williams complained to his supervisor of headaches, vertigo, coughing, and chest tightness.

He testified that such evidences of injury first occurred not more than two weeks after his initial exposure, and that they have persisted to this day. Sometime in 1990, Williams began to experience eye problems, which he claims have been diagnosed as optic nerve dissolution caused by exposure to the paint products. On June 13, 1991, Williams filed a motion for judgment in the Circuit Court of the City of Richmond, Virginia. The ease was removed to the United States District Court for the Eastern District of Virginia by motion of DuPont on June 25, 1992. DuPont thereafter filed a motion for

summary judgment, contending that Williams’s cause of action was time barred under Virginia’s statute of limitations because it was filed more than two years after Williams’s cause of action accrued. Williams responded by asserting that because he was continuously injured throughout the time period he was exposed to DuPont’s products, from May 15th to June 13th, his action should not be time barred.

Applying Va.Code § 8.01-230 which provides that a personal injury cause of action accrues “from the date the injury is sustained,” the district court found that Williams’s cause of action accrued at the date of his injury, which it determined was no later than May 29, 1989. Therefore, the district court held that the plaintiffs cause of action was time barred under Va.Code § 8.01-243(A), which provides that “aetion[s] for personal injuries” must be “brought within two years after the cause of action accrues,” and entered judgment for DuPont as a matter of law. The district court relied primarily on Locke v.

Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900 (1981) and Large v. Bucyrus-Erie Co., 524 F.Supp. 285 (E.D.Va.1981), aff'd, 707 F.2d 94 (4th Cir.1983). This appeal followed. Locke was a case in which the plaintiff had breathed asbestos fibers from 1948 until 1972 and involved mesothelioma, a type of cancer caused by exposure to asbestos. Such tumors do not begin to form contemporaneously with exposure to asbestos dust, and many people exposed to asbestos particles never develop mesothelioma.

There was no clinical or medical evidence of any injury until after the lapse of some time after the last exposure, just how much time not having been revealed in the record. The times of exposure to asbestos bear no medical relationship to when and if the malignant tumor will occur. Prior to 1978, there was no medical evidence plaintiff had any lung related abnormality or disease.

He filed his suit July 24, 1978, having first experienced impairment of lung function in November, 1977, having had an x-ray abnormality revealed in May of 1978, and having had mesothelioma diagnosed in June of 1978. 275 S.E.2d at 901-905. On these facts, the Virginia Court held that “the statute of limitations began to run from the time plaintiff was hurt.” 275 S.E.2d at 905.

And the Court continued, “The ‘time plaintiff was hurt’ is to be established from available competent evidence, produced by a plaintiff or a defendant, that pinpoints the precise date of injury with a reasonable degree of medical certainty.” 275 S.E.2d at 905. Absent other evidence, and the Court described the evidence before it as “scant,” the decision stated that the statute would have started to run either in November, 1977, when the plaintiff first experienced impairment of lung function, or in May, 1978, when an x-ray revealed a lung impairment.

But the Court concluded that since “the accrual point is when damage occurs,” 275 S.E.2d at 905, it was conceivable that the disease had manifested itself by symptoms such as pain, discomfort or impairment of function, and that expert medical testimony might demonstrate the injury occurred weeks, months or even years before the onset of the symptoms. Thus, the cause of action would have accrued and the statute would have begun to run from the earlier, and not the later, time although there had been no diagnosis communicated to the victim, or even made. 275 S.E.2d at 905.

The Court remanded the case to the trial court to reconsider its decision that the statute of limitations had run. It continued to reject the discovery rule, as it had in the past, in cases in which injury or damage came into existence at the time of the wrongful act, and distinguished the case before it because there was “no injury at the time of the wrongful act.” 275 S.E.2d at 906. We applied Locke in Large.

Large was a case in which a construction worker who had operated power shovels had been exposed for some 16 years, between 1962 and 1978, to noise and dust which he claimed were at excessively high levels due to the faulty design of the machinery. The last exposure of the plaintiff was on November 17, 1978, and the plaintiff had filed his suit on November 3, 1980, so that he was exposed to the noise and dust during the last two weeks of the two-year limitation period, from November 3 until November 17, 1978.

The district court held that “[b]ecause the two week exposure did not cause any injury” the action was time barred. 707 F.2d at 96. As might have been expected from the Virginia Court’s decision in Locke, the case depended on the medical evidence of expert witnesses. That evidence revealed that plaintiff ‘“was suffering from no pulmonary disease or process which was not evident in August, 1978 or before’ ” and that “all of the respiratory injuries complained of occurred more than two years before the suit was filed.” 707 F.2d at 96.

The expert testimony on the hearing loss was that plaintiff “ ‘experiences moderate to severe sensori-neural hearing losses in both ears and that he has experienced these problems since at least April, 1977.’ ” And further, “ ‘as of January 4, 1982 [plaintiff] was experiencing no process, disability or impairment of the ears, auditory nerves or other system related tó hearing which was not evident in April, 1977.’ ” 707 F.2d at 96. On these facts, we held that since all of plaintiffs injuries occurred outside the two-year period of the statute of limitations, the suit was time barred.

With respect to the two-week period of exposure within the two-year period of limitations, we held that “the uncontroverted medical evidence proved that the injuries all occurred and were complete more than two years before plaintiff filed his cause of action.” 707 F.2d at 98. On that account, we affirmed. Before continuing further, another principle of Virginia law which runs through many of the cases should be mentioned, as noted in Scarpa v. Melzig, 237 Va. 509, 379 S.E.2d 307, 309 (1989), citing Richmond, Development & H.A. v. Laburnum Const.

Corp., 195 Va. 827, 80 S.E.2d 574 (1954), “Moreover, when any injury, though slight, is sustained as the consequence of an alleged wrong, the right of action for a personal injury accrues and the statute of limitations begins to run at once. [Citation omitted.] It is immaterial that all the damages resulting from the wrong may not have been sustained at the time of the negligent act; the running of the statute of limitations is not postponed by the fact that substantial damages do not occur until a later date.” The Court construed that rule in Starnes v.

Cayouette, 244 Va. 202, 419 S.E.2d 669, 671 (1992) as follows: “... when a tort causes a contemporaneous personal injury the fact that the victim suffered greater physical or mental hurt from that tort at a later date does not defer the date of accrual of the cause of action.” In Starnes, which was a suit by an adult survivor of child abuse, the court held that the plaintiff had suffered an injury each time the defendant committed a wrongful act against her, and her cause of action accrued on that date. In the case before us, we have not been favored with any medical evidence.

Not even any reports of injury or records from Stuart Circle or MCV hospitals have been filed, much less depositions or affidavits from physicians who may have examined the plaintiff, either for treatment or in connection with this case. On this record, it being apparent that the plaintiff claims he was injured from each exposure to the paint products, his each exposure to the DuPont paint products prior to June 13, 1989, is subject to the bar of the statute of limitations, and so far as that goes, the result obtained by the district court is correct, but under the rule we have stated from Starnes.

As to the exposure, however, on June 13, 1989, the result is different. The record reveals the following from Williams’s deposition: Q. All right. Sir, let me show you this document, which appears to be a report of the accident or incident. It says incident date, 6/13/89. A. Uh-huh. Q. Then it says: Williams was spray painting truck body. He noticed he was inhaling paint fumes. He stopped painting and found that the mask was damaged. Now, that relates to this paper mask; is that correct? A. Yes, sir. Q. Okay. And that was — occurred on June 13, 1989; is that correct? A. Yes, sir. (A.38) Q.

Now, sir, what I was trying to establish was, on June 13, 1989, you were spray painting and noticed that you were inhaling fumes because of a rip of some sort in the paper mask, which is Exhibit 7, and you went to Stuart Circle as the result of that; is that correct? A. Yes, sir. (A.44). Unlike in Large, there is not any evidence in this record, medical or otherwise, that Williams’s exposure on June 13, 1989, for which he went to the emergency room at Stuart Circle Hospital, did not injure him.

Indeed, the ordinary construction of the testimony in his deposition, which we have just related, to the effect that he breathed paint spray on June 13th and went to the hospital “as a result” would only lead to the conclusion that such was a contemporaneous injury from exposure to the paint spray. Certainly that is a permissible construction which is all that is required to successfully oppose a motion for

summary judgment. To repeat, in Large, all of the plaintiffs injuries occurred prior to the two-week period during which the plaintiff worked and was exposed within the two-year period of the statute of limitations. In the case at hand, there is not any evidence that all of this plaintiffs injuries occurred prior to June 13, 1989; and on that last day the plaintiff, indeed, went to the hospital, claiming just the injury he has sued for here. Williams claims he “was hurt” on June 13,1989. Locke, 275 S.E.2d at 905, and the record justifies making that claim.

The judgment of the district court is accordingly affirmed in part and vacated in part, and the ease is remanded for proceedings not inconsistent with this opinion. AFFIRMED IN PART, VACATED IN PART, AND REMANDED. . Indeed, a particular incident of exposure occurred June 13, 1989 when Williams's mask tore and exposed him to the spray. He went to Stuart Circle Hospital on that account on that date. . The papers filed by the parties are illegible as to the filing date of the complaint.

An examination of the records of the Clerk of the Circuit Court of the City of Richmond discloses that this suit was filed on June 13, 1991. Therefore, only one day of exposure is within the two year period. The parties and the district court placed the filing date as June 9, 1991. . Medical College of Virginia. . Footnote 1 on page 468 of the dissenting opinion, of course, is not the opinion of the majority in this case.