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In re Dow Corning Corp.

United States Court of Appeals, Sixth Circuit

February 20, 2015

In re: DOW CORNING CORPORATION, Reorganized Debtor. PAMELA D. SUTHERLAND, Plaintiff-Appellant,
v.
DCC LITIGATION FACILITY, INC., Defendant-Appellee

Argued January 30, 2014.

Page 546

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. I:05-cv-30276--Denise Page Hood, District Judge.

ARGUED:

Mark R. Bendure, BENDURE & THOMAS, Detroit, Michigan, for Appellant.

Robert D. Goldstein, GARAN LUCOW MILLER, P.C., Grand Blanc, Michigan, for Appellee.

ON BRIEF:

Mark R. Bendure, BENDURE & THOMAS, Detroit, Michigan, for Appellant.

Robert D. Goldstein, Timothy J. Jordan, GARAN LUCOW MILLER, P.C., Grand Blanc, Michigan, for Appellee.

Before: MERRITT, SUTTON, and STRANCH, Circuit Judges. STRANCH, J., delivered the opinion of the court in which MERRITT, J., joined. SUTTON, J., delivered a separate dissenting opinion.

OPINION

Page 547

JANE BRANSTETTER STRANCH, Circuit Judge:

In 1988 Pamela Sutherland received breast implants in North Carolina. She filed suit in the Middle District of North Carolina five years later, after learning that the silicone in her implants could be causing a variety of serious medical problems. The Silicone's manufacturer, Dow Corning, filed for bankruptcy in the Eastern District of Michigan, and Sutherland's suit was transferred there. In 2012, twenty-four years after Sutherland received the implants, the district court concluded that Sutherland's claim was barred by Michigan's statute of limitations and granted summary judgment to the defendant. The district court should have applied North Carolina's law instead of Michigan's, and should have concluded that there was a genuine factual issue as to whether Sutherland's claim was timely-filed under North Carolina law. We therefore REVERSE the district court and remand for proceedings consistent with this opinion.

I. PROCEDURAL HISTORY

In 1988 Pamela Sutherland, a Virginia resident, received breast implants at Duke University Hospital in North Carolina. The silicone-based filling in the implants was produced by Dow Corning, whose corporate headquarters is in Michigan. In 1993 Sutherland filed suit in the Middle District of North Carolina alleging that the silicone in her implants was causing a wide range of serious health problems. Sutherland's was one of tens of thousands of silicone-related cases brought against Dow Corning. A multidistrict litigation panel

Page 548

transferred the cases to the Northern District of Alabama where, in 1994, a class settlement was reached. Sutherland opted out of the class. In 1995 Dow Corning filed for bankruptcy in the Eastern District of Michigan and Sutherland's claim was transferred to that district as " related to" the bankruptcy, pursuant to 28 U.S.C. § 157(b)(5). See In re Dow Corning Corp., 86 F.3d 482, 485-88 (6th Cir. 1996); In re Dow Corning Corp., 113 F.3d 565 (6th Cir. 1997). After a series of appeals, see id., the district court asserted jurisdiction over all silicone-related tort claims against Dow Corning. The district court established the procedures for opt-out claimants in a series of global case management orders. As part of the bankruptcy reorganization, Dow Corning agreed to create and fund a DCC Settlement Facility to handle the class action and a DCC Litigation Facility (" DCC" ) to deal with opt-out claims.

In 2009, after settlement negotiations failed, DCC moved to certify the case for trial. The district court certified the case and ordered Sutherland to file a new complaint, which Sutherland filed on January 5, 2010, and DCC answered on January 19. The case moved towards trial. Sutherland was deposed on November 2, 2011, roughly 23 years after she received the implants and 18 years after first filing suit. In May 2012 DCC filed five separate motions for summary judgment, two of which are relevant to this appeal: One motion argued that Sutherland's claim was time-barred by the relevant statute of limitations; the other argued that Sutherland had failed to provide evidence of general causation.

The district court granted summary judgment to DCC on statute-of-limitations grounds and explicitly declined to address as unnecessary any of DCC's other arguments. The court concluded that, although North Carolina, Virginia, and Michigan law might apply to Sutherland's claim, a choice of law analysis was unnecessary and applied Michigan law. There was, the district court found, no question that Sutherland's claim accrued shortly after she received the implants, and no question that her claim was untimely. This appeal followed.

II. STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo. Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is appropriate if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). As the party seeking summary judgment, DCC must show there are no genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All facts, including inferences, are viewed in the light most favorable to Sutherland, the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is whether the evidence presents a sufficient disagreement regarding whether Sutherland's claims are time-barred to require submission of Sutherland's claims to a jury or whether the evidence is so one-sided that DCC must prevail as a matter of law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In resolving issues of state law, the panel looks to " the final decisions of that state's highest court, and if there is no decision directly on point, then we must make an Erie guess to determine how that court, if presented with the issue, would resolve it." Conlin v. Mortg. Elec. Registration Sys., Inc., 714 ...


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