684 F.2d 111 (D.C. Cir. 1982), 81-2019, Wilson v. Johns-Manville Sales Corp.

Docket Nº:81-2019.
Citation:684 F.2d 111
Party Name:Blannie S. WILSON, Administratrix of the Estate of Henry J. Wilson, Deceased, Appellant, v. JOHNS-MANVILLE SALES CORPORATION, et al.
Case Date:July 30, 1982
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 111

684 F.2d 111 (D.C. Cir. 1982)

Blannie S. WILSON, Administratrix of the Estate of Henry J.

Wilson, Deceased, Appellant,



No. 81-2019.

United States Court of Appeals, District of Columbia Circuit

July 30, 1982

Argued April 20, 1982.

Page 112

Appeal from the United States District Court for the District of Columbia (Civil Action No. 79-01337).

Peter C. DePaolis, Washington, D. C., with whom Joseph H. Koonz, Jr., and Roger C. Johnson, Washington, D. C., were on the brief, for appellant.

Leslie H. Wiesenfelder, Washington, D. C., with whom John P. Schnitker for GAF Corp., Washington, D. C., John F. Mahoney, Jr., for Owens-Corning Fiberglas Corporation, Washington, D. C., Robert E. Scott, Jr., for Johns-Manville Sales Corporation, James R. Bucher for Eagle-Picher Industries, Inc., Washington, D. C., Robert P. Watkins for Raybestos Manhattan, Inc., Washington, D. C., James W. Greene for Pittsburgh Corning Corp., Washington, D. C., Francis X. Quinn for Keene Corp., Washington, D. C., Kevin R. McCarthy for Forty-Eight Insulations, Inc., Washington, D. C., Francis J. Ford for Armstrong Cork Co., Washington, D. C., John Jude O'Donnell for Unarco Industries, Inc., Washington, D. C., and Paul F. Sheridan for Fibreboard Corp., Washington, D. C., were on the joint brief for appellees.

James C. Gregg, Washington, D. C., for Pittsburgh Corning Corp.

Randell Hunt Norton, Washington, D. C., for Unarco Industries, Inc.

Before GINSBURG and BORK [*], Circuit Judges, and EDMUND L. PALMIERI [**], Senior United States District Judge for the Southern District of New York.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

This case presents a novel and difficult legal issue in the context of the mounting volume of litigation relating to deaths or injuries caused by exposure to asbestos products. 1 We are asked to decide whether manifestation of any asbestos-related disease (in this case, asbestosis) triggers the running of the statute of limitations on all separate, distinct, and later-manifested diseases (here, malignant mesothelioma, an extremely lethal form of cancer) engendered by the same asbestos exposure. 2 We hold that time to commence litigation does not begin to run on a separate and distinct disease until that disease becomes manifest.

I. Introduction

  1. The Facts

    Beginning in 1941, Henry J. Wilson was steadily employed as an insulation worker at various construction sites in the metropolitan Washington, D. C. area. As an integral

    Page 113

    element of this employment, Wilson regularly handled and was otherwise exposed to asbestos and asbestos products.

    On February 14, 1973, Wilson was x-rayed as part of his local union's routine program instituted to determine which workers, if any, had contracted asbestosis. 3 Evaluation of these x-rays revealed that Wilson was indeed suffering from "mild asbestosis." 4 Following his receipt of this diagnosis, 5 Wilson began a new job, still in the insulation trade, but involving little, if any, exposure to asbestos. 6

    Subsequent to 1973, Wilson's health rapidly deteriorated. He suffered two heart attacks in June 1974 and a collapsed lung in February 1975, and was hospitalized on each occasion. Because of these episodes and on the advice of his physician, Wilson retired.

    Complaining of sharp pains in his chest, Wilson was again hospitalized in February 1978. On this occasion, Wilson was diagnosed as having mesothelioma, a cancer of the mesothelial cells 7 with a poor prognosis for recovery. Wilson died on May 17, 1978. 8

  2. The District Court Proceedings

    On May 16, 1979, just short of one year after Wilson's death, his widow, Blannie S. Wilson ("Appellant"), 9 instituted the instant diversity action. Named as defendants (collectively "Johns-Manville") 10 were designers, manufacturers, and distributors of asbestos

    Page 114

    and asbestos products, which, allegedly, Wilson frequently used, installed, removed, or otherwise encountered. Proceeding under the District of Columbia's 11 Survival 12 and Wrongful Death 13 statutes, Appellant asserted that Johns-Manville's actions were the direct and proximate cause of her husband's pulmonary illnesses and death. Various theories of product liability, including negligence, breach of express and implied warranty, and strict liability in tort, formed the basis of Appellant's claim for compensatory and punitive damages.

    After extensive discovery by the parties, Johns-Manville moved for summary judgment on both statutory counts. Johns-Manville asserted that Henry Wilson had one, and only one, indivisible cause of action for all past, present, and future injuries resulting from his exposure to asbestos products. This cause of action, Johns-Manville claimed, accrued, at the latest, when Wilson first knew or should have known that he was suffering from any asbestos-related disease, i.e., in February 1973, when Wilson was diagnosed as suffering from asbestosis. Therefore, Johns-Manville concluded, the applicable three-year statute of limitations 14 barred the 1979 Survival action. Furthermore, Johns-Manville argued, Appellant's Wrongful Death action was also time-barred; as a wholly derivative claim, Johns-Manville maintained, a Wrongful Death action may not proceed unless the decedent at the time of his death could have initiated a timely action for personal injuries had he lived. 15

    Page 115

    Without a written opinion or memorandum explanation, 16 but apparently with some insecurity, 17 the district court granted Johns-Manville's motion and dismissed Appellant's complaint with prejudice. 18 This appeal followed.

    II. Analysis

    The applicable statute of limitations, D.C.Code § 12-301(8), 19 provides that a Survival claim "may not be brought after (3 years) from the time the right to maintain the action accrues." Appellant's Survival claim, therefore, is timely only if Henry Wilson had a right of action which "accrued" after May 17, 1976. 20

  3. The Discovery Rule

    The accrual date of a claim for relief based on a disease with a long incubation period, such as asbestosis or mesothelioma, 21 is an issue on which judicial opinion is in flux. Some courts adhere to the traditional view that " 'the cause of action accrues at the time of invasion of (plaintiff's) body.' " Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 1010, 430 N.E.2d 1297, 1299, 446 N.Y.S.2d 244, 246 (1981) (quoting Thornton v. Roosevelt Hospital, 47 N.Y.2d 780, 781, 391 N.E.2d 1002, 1003, 417 N.Y.S.2d 920, 921 (1979)). 22 Other courts 23 employ the "discovery" rule under which a

    Page 116

    "cause of action accrues when the plaintiff knows or through the exercise of due diligence should have known of the injury." See Burns v. Bell, 409 A.2d 614, 617 (D.C.App.1979). 24 Johns-Manville points out that to date "the District of Columbia Court of Appeals has not extended the 'discovery' rule to cases beyond the area of professional malpractice." 25 We are persuaded, however, that, if faced with the issue, the District of Columbia courts would apply the discovery rule to latent disease cases.

    In Burns, the District of Columbia Court of Appeals held that the discovery rule applies to all medical malpractice claims. 409 A.2d at 617. 26 Nothing in the court's opinion implies that the rule should be limited to claims for relief alleging professional malpractice. 27 To the contrary, the court indicated that malpractice cases are merely examples of tort claims in which the fact of injury may not be readily discernible. 28 With respect to an injury that was not immediately apparent, the Burns court characterized the "time of the act" rule as "unduly harsh," id. at 616, and the discovery rule as "just and equitable." Id. at 617. 29

    We note too that the District of Columbia Court of Appeals, in analogous cases, has followed the trend of decisions away from traditional judge-made rules that operate harshly or are not suited to changed conditions. 30 In latent disease cases the trend is clearly toward application of the discovery rule. 31 Further, federal district judges, called upon to apply District of Columbia law in diversity suits, have employed the discovery rule in latent injury cases. Fearson v. Johns-Manville Sales Corp., 525 F.Supp. 671, 674 (D.D.C.1981); Grigsby v. Sterling Drug, Inc., 428 F.Supp. 242, 243 (D.D.C.1975), aff'd mem., 543 F.2d 417 (D.C.Cir.1976).

    Page 117

    Finally, we believe the discovery rule is sensibly based. 32 Courts have long recognized that "(the) policy of repose, designed to protect defendants, is frequently outweighed ... where the interests of justice require vindication of the plaintiff's rights." Burnett v. New York Central Railroad, 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965). Latent disease claims fit comfortably within this generalization. As Justice Rutledge observed, application of the invasion-of-the-body rule to such cases, which involve "unknown and inherently unknowable" harm, would provide the injured party with only a "delusive" remedy. Urie v. Thompson, 337 U.S. 163, 169, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282 (1949). See also Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809, 813 (2d Cir. 1960) (time-of-the-act rule "would nullify any right to recover for many serious but slowly and insidiously developing diseases"); Harig, 284 Md. at 80, 394 A.2d at 305.

    Johns-Manville principally argues, however, that even if the discovery rule is applicable to the instant case, Appellant's claim is nonetheless barred by the three-year limitations period. Henry Wilson, Johns-Manville urges most strenuously, had only one indivisible cause of action for asbestos-related injuries and that cause of action accrued five years before he...

To continue reading