Nolan v. Johns-Manville Asbestos

• Decision Date: 20 February 1981
• Docket Number: No. 52484,JOHNS-MANVILLE,52484
• Parties: , 52 Ill.Dec. 1 Billie Irene NOLAN, Adm'x, Appellee, v.ASBESTOS et al., Appellants.
• Court: Illinois Supreme Court

Page 864

421 N.E.2d 864

85 Ill.2d 161, 52 Ill.Dec. 1

Billie Irene NOLAN, Adm'x, Appellee, v. JOHNS-MANVILLE ASBESTOS et al., Appellants.

No. 52484.

Supreme Court of Illinois.

Feb. 20, 1981.

As Modified June 17, 1981.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller and Baker & McKenzie, Chicago (Thomas J. Weithers, Stanley J. Davidson, Frederick S. Mueller, Francis D. Morrissey, Harry J. O'Kane, and Daniel J. Cheely, Chicago, of counsel), for appellants.

William J. Harte, Ltd., Chicago (William J. Harte, Janet Gerske, and John J. Lowrey, Chicago, of counsel), for appellee.

CLARK, Justice:

The plaintiff's decedent, Edwin L. Nolan, Jr., filed a complaint, sounding in strict liability, in the circuit court of Cook County on May 9, 1975. The complaint alleged, inter alia, that the defendants manufactured, sold and distributed asbestos, fiberglass and related products which were unreasonably dangerous because the containers were not adequately labeled so as to warn of foreseeable and known dangers associated with their use, because the defendants failed to warn of the known likelihood of contracting asbestosis due to prolonged exposure and use of the products, and because the defendants failed to provide protective equipment. On a motion joined by all the defendants, and after notice and hearing, the circuit court granted summary judgment for all defendants, on the basis that Nolan's cause of action was barred by the two-year statute of limitations (Ill.Rev.Stat.1977, ch. 83, par. 15).

Nolan appealed. During the pendency of that appeal, he died. His wife was substituted as special administratrix to prosecute the appeal. The Appellate Court for the First District reversed the judgment of the circuit court and remanded the cause for further proceedings. (74 Ill.App.3d 778, 30 Ill.Dec. 871, 392 N.E.2d 1352.) We allowed leave to appeal. (73 Ill.2d R. 315.) We affirm.

The facts are amply set forth in the appellate court opinion. A summary will suffice here. Edwin L. Nolan, Jr., was employed as an asbestos insulator from 1941 to May 11, 1973, with the exception of time spent in military service from 1943 to 1946. In 1957, Nolan became aware of shortness of breath and increasing difficulty climbing stairs. He underwent a chest X ray administered by the Suburban Tuberculosis Sanitarium, which showed he did not have tuberculosis, but indicated that he had "lung problems." Nolan consulted his family doctor, Robert Muench. Dr. Muench examined Nolan, ordered some X rays taken, and confirmed the sanitarium's statement that Nolan had lung problems, but he did not elaborate further. Dr. Muench referred Nolan to a psychiatrist, Dr. Monty Meldmann. Meldmann conducted a physical examination and ordered more X rays taken. He also told Nolan that he had lung problems, but told Nolan he thought his problem was partly psychological as well.

Nolan again sought Dr. Muench's advice in 1965, when he noticed that his earlier complaints were becoming more pronounced. Nolan was admitted to St. Joseph's Hospital in Elgin, where he underwent a physical examination, pulmonary function tests, and chest X rays. During Dr. Muench's deposition, he read the reported findings of the hospital's X-ray department:

"The findings suggest a generalized pulmonary fibrosis or interstitial inflammatory process. Pneumoconiosis is a consideration to be correlated with the occupational history. Chronic interstitial pneumonia, sarcoidosis, and pulmonary fungus disease are other considerations to be correlated with the clinical and laboratory data.

The accentuated findings at the left anterior lower lung field may represent a supraimposed acute inflammation. Comparison to previous chest x-rays will be of value."

Dr. Muench testified during the course of the deposition that, while usually test findings and their causes are discussed with patients, he could not recall whether he had discussed the foregoing findings with Nolan. Nolan testified that Dr. Muench told him he had pulmonary fibrosis, but did not indicate any causal connection between his condition and his occupation. Nolan testified further that Dr. Muench told him there was nothing the doctor could do for him.

Nolan sought further medical attention from the Veteran's Administration Hospital after his discharge from St. Joseph's Hospital. He was told he was receiving competent treatment from Dr. Muench and was refused admittance to the hospital.

Sometime after 1968, the international union to which Nolan belonged began to publish "green sheets" as a supplement to its quarterly magazine, The Asbestos Worker. The green sheets detailed the findings of a physician, Dr. Irving Selikoff, concerning the relationship between exposure to asbestos materials and lung problems. Nolan was not sure when he first read the green sheets.

During May 1973 Nolan consulted an internist, Dr. Robert C. Kloempken. Nolan's symptoms consisted of a serious case of diarrhea, a weight loss of 13 pounds, shortness of breath, discomfort in the abdomen, and swelling of the feet.

Dr. Kloempken noted in his records that "He (Nolan) was told around 1957 that he had pulmonary fibrosis secondary to asbestosis." The doctor stated that this was medical terminology. He also stated under questioning by different counsel, alternatively, that he did not know whether the precise words used were Nolan's, and later, that Nolan did tell him so in those words. Finally, the doctor testified he was paraphrasing what Nolan told him.

On May 15, 1973, Dr. Kloempken diagnosed Nolan's condition as asbestosis and tuberculosis. Nolan had ceased working on May 11, 1973, and never did return to work. The complaint in this cause was filed May 9, 1975.

The issue in this case is whether the two-year statute of limitations which governs personal injury actions (Ill.Rev.Stat.1977, ch. 83, par. 15) bars this action. As a preliminary contention the defendants argue that the discovery rule, which this court has applied to a number of actions, has no application in a strict liability action of this sort. In Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305, where this court applied the discovery rule to a strict tort liability action it was stated:

"(W)e have held that an action to recover for personal injuries resulting from a sudden traumatic event accrues when plaintiff first knew of his right to sue, i. e., at the time when the injury occurred. (Citations.) Although we have not specifically held this rule applicable to a products liability claim (citation), refusal to do so would emasculate much of the consumer protection afforded by Suvada (v. White Motor Co. (1965), 32 Ill.2d 612, (210 N.E.2d 182)." 45 Ill.2d 418, 432, 261 N.E.2d 305.

In Berry v. G. D. Searle & Co. (1974), 56 Ill.2d 548, 309 N.E.2d 550, a cause of action in strict tort liability involving the sale of a contraceptive pill was said to accrue when the plaintiff suffered a stroke. "From plaintiff's description of the severity of her condition in the complaint and her reply brief it is inconceivable that her injury was not occasioned by a traumatic event and that she knew of this injury more than two years prior to the filing of her complaint." 56 Ill.2d 548, 559, 309 N.E.2d 550.

It is important to recognize that in Williams this court rejected the contention that the statute of limitations began to run when the allegedly defective trenching machine left the manufacturer's control. In Berry we held that the cause of action in tort accrued when the plaintiff suffered a stroke and not when the pill was manufactured, sold or consumed. (56 Ill.2d 548, 559, 309 N.E.2d 550; see Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill.2d 129, 135, 334 N.E.2d 160.) Thus in Williams and Berry, with reference to the strict tort liability counts, the statute was held to commence to run when the plaintiffs knew or should have known of their injuries, which were suffered as part of traumatic events.

In Rozny v. Marnul (1969), 43 Ill.2d 54, 70, 250 N.E.2d 656, this court said that whether to apply the discovery rule to a particular type of action involves "balancing the increase in difficulty of proof which accompanies the passage of time against the hardship to the plaintiff who neither knows nor should have known of the existence of his right to sue. There are some actions in which the passage of time, from the instant when the facts giving rise to liability occurred, so greatly increases the problems of proof that it has been deemed necessary to bar plaintiffs who had not become aware of their rights of action within the statutory period as measured from the time such facts occurred. (See Skinner v. Anderson, 38 Ill.2d 455, 458, 231 N.E.2d 588; New Market Poultry Farms, Inc. v. Fellows, 51 N.J. 419, 241 A.2d 633.) But where the passage of time does little to increase the problems of proof, the ends of justice are served by permitting plaintiff to sue within the statutory period computed from the time at which he knew or should have known of the existence of the right to sue." We think the instant case is a prime example of where, though the passage of time does create problems of proof, those problems are outweighed by the hardship to the plaintiff who neither knows nor reasonably should know that he is being injured. In the instant case, the defendants deposed Nolan to discover the particulars of when and where he used their products. Also, records relative to the sale of these products should still be extant in many cases. Additionally, in a case such as this, it is difficult to pinpoint a precise time when an injury occurred. As was stated in Urie v. Thompson (1949), 337 U.S. 163, 169, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282, 1292, where the plaintiff, a railroad fireman, had contracted silicosis:

"If Urie were held barred from prosecuting this action because he must be said, as a matter of law, to have contracted silicosis prior...