Stuart Calwell

Attorney Stuart Calwell of Charleston advertised that his firm would represent painters with breathing problems.

Retired automobile painter John Edward Goodwin responded to the pitch, but got nothing because the Calwell firm waited too long to sue.

The West Virginia Supreme Court of Appeals ruled Dec. 1 that the statute of limitations ran out on Goodwin before his personal injury suit reached the Kanawha County courthouse.

"His own testimony leaves nothing to question," the Court's opinion stated.

Three of five Justices sided with Circuit Judge Jennifer Bailey Walker, who last year dismissed Goodwin's complaint against paint manufacturers and other companies.

In West Virginia, a personal injury victim must sue within two years of discovering the injury. In Goodwin's case, attorneys disagreed about when that clock started ticking.

Calwell's law office filed the suit Oct. 22, 2001, against Bayer Corporation, DuPont, Sherwin-Williams, Rust-Oleum, Refinishing Material Specialists and White Dodge.

Calwell would argue later that the suit beat the two year deadline because the statute of limitations started running on Nov. 8, 1999.

The defendants argued that Goodwin's clock started ticking in 1997. They relied on statements he made in a sworn deposition last year.

In the deposition Goodwin said he started painting in 1969 at an auto body shop his father owned, and he ran, after his father retired.

He said that around 1988 he noticed a funny taste in his mouth and tightness in his chest while he painted. He said he bought a respirator and used it religiously.

The business closed in 1991.

In 1997, he said he watched his son-in-law paint a bus. He did not use a respirator and noticed chest pain and shortness of breath, he said.

Goodwin saw his family physician, Victor Selvaraj, on June 3, 1997.

"I told him that I had been in paint, and he didn't say anything," Goodwin said. "He just started treating me for breathing."

A defense attorney at the deposition, unidentified in the Supreme Court of Appeals opinion, asked Goodwin if he felt the problem related to paint. Goodwin answered, "Yes."

The defense attorney asked if his doctor told him he thought it related to paint. Goodwin said, "No, not really."

Selvaraj's record of the visit noted that Goodwin "has been painting causing breathing problems." Selvaraj diagnosed the condition as chronic obstructive pulmonary disease.

He referred Goodwin for further tests, which revealed asthma.

In 1998, Goodwin contacted Calwell's firm in response to an advertisement seeking painters with breathing problems.

Calwell's firm applied to the Social Security Administration on Goodwin's behalf April 21, 1998, seeking supplemental security benefits for hernias and asthma.

That September, physician Nilima Bihrud reported to Social Security that Goodwin began having breathing problems two years earlier.

Social Security denied Goodwin's application.

In June 1999, Calwell received Goodwin's medical records from Selvaraj. The Calwell firm decided to obtain a second opinion on Goodwin's condition.

The firm referred Goodwin to physician Roger Abrahams, who reached a diagnosis of occupational asthma as a result of exposure to paint in the auto body repair business.

Abrahams relayed the diagnosis to Calwell's firm in a letter dated Nov. 8, 1999.

Twenty-three and a half months later, the Calwell firm filed Goodwin's complaint.

The defendants, unaware of the events of 1997, did not challenge the suit under the statute of limitations at first. They handled it like any other personal injury suit.

One defendant apparently settled. Goodwin dismissed White Dodge from the case.

Attorneys for the remaining defendants deposed Goodwin in March 2004. His account convinced them that he sued four years after he was aware of an injury.

The defendants moved Judge Walker to grant summary judgment in their favor and dismiss the complaint under the statute of limitations.

Calwell's firm opposed the motion in a memorandum arguing that the diagnosis by Abrahams was the first connection between the occupation and the illness.

The memorandum raised a new claim, alleging that paint fumes caused a separate neuropsychological injury. It stated that a psychologist diagnosed the injury in 2003.

Judge Walker rejected the new claim and granted summary judgment Aug. 25, 2004.

More than a year later, Calwell's firm submitted the case to the Supreme Court of Appeals. Attorney Vincent Trivelli joined Stuart Calwell in presenting the firm's case.

In the Court's Dec. 1 opinion, Justices Brent Benjamin, Robin Davis, and Elliott "Spike" Maynard affirmed Walker's decision to dismiss the suit.

Justices Joseph Albright and Larry Starcher dissented.

The majority wrote that some plaintiffs might not be aware of an injury, or some might know about an injury without knowing its cause.

"Here, Goodwin's testimony provides an unrebutted record of when Goodwin first believed he had been injured and what had caused him this harm," the majority wrote.

"Goodwin testified that by 1997 he knew he had been injured by his exposure to paint," they wrote. "Furthermore, all of his actions support that conclusion."

"This Court has repeatedly stated that the statute of limitations begins to run when a plaintiff has knowledge of the fact that something is wrong and not when he or she knows of the particular nature of the injury," they wrote.

They quoted the Court's "discovery rule," under which the statute of limitations begins to run in a product liability case when a plaintiff knows he was injured, identifies the maker of the product, and connects the product to the injury.

"While it is unclear to us why there was such a significant delay in the filing of the underlying action," they wrote, "it is clear that the discovery rule was never intended to excuse such a delay, nor will this Court allow the discovery rule to be modified, manipulated or expanded to now be used to remedy such a delay."

The majority knocked down the claim of neuropsychological injury, noting that Goodwin did not amend his complaint to include the claim.

"The issue before us is when Goodwin knew that he had suffered harm from breathing paint fumes," the majority wrote. "There is simply no credible argument upon which Goodwin can rely to avoid the operation of the statute of limitations under these facts."

"Goodwin engaged counsel who advertised an expertise and experience in paint exposure claims. Waiting some five more years to consider potential neuropsychological harm under such circumstances is simply unreasonable," they wrote.

Albright and Starcher reserved the right to file dissenting opinions.

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