Kaiser v. Armstrong World Industries, Inc.

• Decision Date: 12 January 1989
• Docket Number: No. 88-1215,88-1215
• Citation: 872 F.2d 512
• Parties: , 57 USLW 2660, Prod.Liab.Rep.(CCH)P 12,105 Sol KAISER, et al., Plaintiffs, Appellants, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 512

872 F.2d 512

1990 A.M.C. 1215, 57 USLW 2660,

Prod.Liab.Rep.(CCH)P 12,105

Sol KAISER, et al., Plaintiffs, Appellants, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants, Appellees.

No. 88-1215.

United States Court of Appeals, First Circuit.

Heard Jan. 12, 1989.

Decided April 13, 1989.

John J. McConnell, Jr., with whom, Maria H. Sandoval and Law Offices of Nachman & Fernandez-Sein, San Juan, P.R., were on brief, for plaintiffs, appellants.

Kevin E. Young with whom, Lawrence G. Cetrulo and Burns & Levinson, Boston, Mass., were on brief, for defendants, appellees Armstrong World Industries, Inc., Eagle-Picher Industries, Inc., H.K. Porter Co., Fibreboard Corp., Owens-Illinois, Inc., GAF Corp., and The Celotex Corp.

David Rive Rivera, Old San Juan, P.R., and Vargas & Rive, on brief, for defendant, appellee Foster Wheeler.

Before CAMPBELL, Chief Judge, SELYA, Circuit Judge, and PETTINE, ^* Senior District Judge.

LEVIN H. CAMPBELL, Chief Judge.

Plaintiffs appeal from the district court's grant of summary judgment for defendants, dismissing as time barred plaintiffs' complaint against several asbestos manufacturers ¹ for damages arising out of Sol Kaiser's injuries from asbestos exposure. 678 F.Supp. 29. We agree with the district court that Kaiser's suit is barred by Puerto Rico's one-year statute of limitations because Kaiser knew of his injury and of its cause more than one year before bringing suit.

I.

A court of appeals lacks power to entertain an appeal from a party who is not specified in the notice of appeal. Torres v. Oakland Scavenger Co., --- U.S. ----, 108 S.Ct. 2405, 2408-09, 101 L.Ed.2d 285 (1988); Gonzalez Vega v. Hernandez Colon, 866 F.2d 519, 519 (1st Cir.1989); Santos Martinez v. Soto Santiago, 863 F.2d 174, 175 (1st Cir.1988). See Fed.R.App.P. 3(c) (the notice of appeal "shall specify the party or parties taking the appeal"). In this case the notice of appeal submitted on January 14, 1988, was captioned:

Sol Kaiser, et al., Plaintiffs

The text of the notice provided

NOTICE IS HEREBY GIVEN that plaintiffs, hereby appeal to the United States Court of Appeals for the First Circuit, from the final judgment entered in this action on December 15, 1987, dismissing the complaint....

Nowhere in the notice of appeal appear the names of Sol Kaiser's wife and children, Alida Veve de Kaiser, Lia Kaiser, and Clinton Kaiser, who sued for damages to them as a result of Kaiser's disability. The question is raised, therefore, whether we have appellate jurisdiction over the appeals of these members of Sol Kaiser's family. See Torres, 108 S.Ct. at 2409 ("et al." fails to indicate that persons not otherwise designated intend to appeal).

Kaiser contends that we have jurisdiction over the appeals of his children since their representative character makes them wholly dependent on his own appeal, as to which jurisdiction is clear. He relies for this proposition upon a recent decision of the Fifth Circuit, King v. Otasco, Inc., 861 F.2d 438 (5th Cir.1988), holding that where a father brought suit in his individual capacity and on his children's behalf, the notice of appeal naming only the father provided the court with jurisdiction over the children's appeals.

We need not decide whether to adopt the approach taken by the Fifth Circuit. As we sustain the district court's holding that Sol Kaiser's action is time barred, and as no argument was raised below that his wife's and children's claims stood on any different footing vis-a-vis the statute of limitations than his own, it is academic whether we have jurisdiction over the latter appeals. We shall accordingly assume for purposes of argument, but without deciding, that we have jurisdiction over them. See Norton v. Mathews, 427 U.S. 524, 530-32, 96 S.Ct. 2771, 2774-76, 49 L.Ed.2d 672 (1976) (when relief is to be denied whether or not court has jurisdiction, the jurisdictional question need not necessarily be decided).

II.

The summary judgment materials show the following. Sol Kaiser served in the United States Navy from 1948 to 1952. His duties included repairing insulated pipes on destroyers. This required cutting and tearing asbestos cloth from the pipes. Asbestos dust so pervaded his work area on the ship that at times he had to remove asbestos particles from his nostrils. He and the other boiler technicians frequently drank coffee with asbestos dust floating in it, knowing nothing of the danger from asbestos exposure. Eight years after leaving the Navy, Kaiser began to experience what was to become a lifetime of respiratory ailments. In 1960, while living in Puerto Rico, he was hospitalized for breathing difficulties diagnosed as acute bronchitis and bronchial asthma. By 1980, Kaiser was completely disabled as a result of respiratory problems, and successfully petitioned for a social security disability pension. He was hospitalized for attacks diagnosed as bronchial asthma nine times over the next two years. In 1982, on the advice of his physician, Kaiser moved his family from Puerto Rico to Arizona, where the climate was better for his pulmonary disease.

Kaiser's medical records from the University of Arizona contain several references to Kaiser's asbestos exposure and to asbestos-related diseases. His medical history, taken when he first visited the hospital in 1982, included a reference under "occupational history" to Kaiser's asbestos exposure when he served in the Navy as a boiler repairman. The "problem sheet" prepared on Kaiser's first visit to the University of Arizona Health Sciences Center lists "asthma" and "asbestos pleural disease." Three chest x-ray reports prepared in 1983 indicate that Kaiser's lungs contained "calcific pleural changes" and "pleural calcifications." These reports reference Kaiser's history of asbestos exposure. One states that the x-ray "may well reflect changes related to asbestos exposure." The latest chest x-ray characterizes Kaiser's history as "old asbestos pleural disease."

Records of Kaiser's office visits while he lived in Arizona demonstrate that physicians made progressively more certain diagnoses of asbestos-related disease. A doctor's "assessment" dated March 16, 1983, included "asthma," but also questioned whether certain problems were not consistent with Kaiser's history of smoking and asbestos exposure. This same record contained a report of Kaiser's "subjective" condition, including "wonders if asbestos has anything to do [with] his asthma." On August 17 of the same year, 1983, a doctor's "assessment" reads "asthma/asbestosis."

On April 15, 1985, just before Kaiser and his family moved back to Puerto Rico, Kaiser's primary physician at the University of Arizona, Dr. Burrows, prepared a letter "To Whom It May Concern" describing Kaiser's medical condition and treatment. The letter stated that Kaiser was treated primarily for "persistent asthma symptomatology." The letter also includes a statement that "[h]is past history is of interest in that he had definite exposure to asbestos while working as a boiler repairman in the navy back in the 1950's." Dr. Burrows's letter also recounted that "periodic chest x-rays have been obtained since his initial film revealed some pleural calcification compatible with his past history of asbestos exposure. Regular re-evaluation of the chest is certainly indicated in view of his increased risk for lung cancer or mesothelioma." Kaiser recounts that in 1985 Dr. Burrows "suggested I explore with my doctor upon my return to Puerto Rico the fact that I had been exposed to asbestos while in the Navy."

Kaiser's likely awareness while in Arizona that his sickness was asbestos related is reinforced by evidence from members of his family. Kaiser's brother-in-law, Charles Joseph, stated in a deposition that sometime after Kaiser returned to Puerto Rico, Kaiser recounted to him that Kaiser's doctor in Arizona had told him about the asbestos fibers in his lungs. Both Kaiser's children stated that while they were living in Arizona they heard their father say that his time in the Navy was the cause of his breathing problems. Notwithstanding, Kaiser testified in his own deposition that no one at the University of Arizona ever told him his breathing problems possibly were caused by his exposure to asbestos. He also denied ever inquiring of his doctors in Arizona about the relationship between his asthma and asbestos exposure.

After Kaiser and his family returned to Puerto Rico in 1985, Charles Joseph showed Kaiser an article about asbestos-related litigation in the June 24, 1985, issue of a national magazine. Kaiser deposed that it was from this article that he first learned that asbestos exposure could injure one's lungs. Kaiser's deposition contains differing statements about when he read the article. At one point, he states that he read the article "right after the summer," but at another he states that he read it "in the summertime."

In any event, Kaiser contacted an attorney right after reading the article. The summary judgment materials include a letter from Kaiser's attorney dated July 19, 1985, requesting from the University of Arizona Health Sciences Center Kaiser's medical records. Kaiser also contacted a doctor, who told him sometime in late 1985 or early 1986 that he suffered from asbestosis. The Kaisers filed this lawsuit seeking general and special damages for Kaiser's asbestos-related injuries on August 15, 1986.

III.

All parties accept in their briefs and argument that the applicable statute of limitations in this diversity action brought in the United States District Court for the District of Puerto Rico is that of Puerto Rico. We shall accordingly assume, without further inquiry, that this is so. The statute of limitations governing a civil negligence action in Puerto Rico is "one year ... from the time the aggrieved person has knowledge" of the injury. P.R. Laws Ann. tit. 31, Sec. 5298 (1968). The Supreme Court of Puerto Rico has defined "knowledge...