Grabowski v. Turner & Newall, Civ. A. No. 78-3046 and 79-4337 to 79-4342.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: Donald J. P. Sweeney, Philadelphia, Pa., for Special Asbestos Co., Inc
• Citation: 516 F. Supp. 114
• Parties: Louis GRABOWSKI and Helen Grabowski v. TURNER & NEWALL, et al. Carl A. DaMATO and Rose DaMato v. BELL ASBESTOS MINES, LTD., et al. Pearl LINDAHL, Admn. of the Estate of Fred S. Lindahl, Deceased v. BELL ASBESTOS MINES, LTD., et al. Margo L. GRAVATT, Admn. of the Estate of Clifford Henry Gravatt, Jr., Deceased v. BELL ASBESTOS MINES, LTD., et al. Modesta C. MARINCOLA, Admn. of the Estate of Paul G. Marincola, Deceased v. TURNER & NEWALL, LTD., et al. Albert SAYLOR, Admn. of the Estate of Jennie Saylor v. TURNER & NEWALL, et al. Jennie I. PEARSON, Admn. of the Estate of Richard D. Pearson, Deceased v. BELL ASBESTOS MINES, LTD., et al.
• Docket Number: Civ. A. No. 78-3046 and 79-4337 to 79-4342.
• Decision Date: 27 October 1980

516 F. Supp. 114

Louis GRABOWSKI and Helen Grabowski v. TURNER & NEWALL, et al.

Carl A. DaMATO and Rose DaMato v. BELL ASBESTOS MINES, LTD., et al.

Pearl LINDAHL, Admn. of the Estate of Fred S. Lindahl, Deceased v. BELL ASBESTOS MINES, LTD., et al.

Margo L. GRAVATT, Admn. of the Estate of Clifford Henry Gravatt, Jr., Deceased v. BELL ASBESTOS MINES, LTD., et al.

Modesta C. MARINCOLA, Admn. of the Estate of Paul G. Marincola, Deceased v. TURNER & NEWALL, LTD., et al.

Albert SAYLOR, Admn. of the Estate of Jennie Saylor v. TURNER & NEWALL, et al.

Jennie I. PEARSON, Admn. of the Estate of Richard D. Pearson, Deceased v. BELL ASBESTOS MINES, LTD., et al.

Civ. A. Nos. 78-3046 and 79-4337 to 79-4342.

United States District Court, E. D. Pennsylvania.

October 27, 1980.

Edward Rubin, Hamburg, Rubin, Mullin & Maxwell, Lansdale, Pa., Thomas Mullaney, Jr., Norristown, Pa., for plaintiffs.

Robert M. Britton, Post & Schell, P. A., Philadelphia, Pa., for Bell Asbestos Mines, Ltd.

Donald J. P. Sweeney, Philadelphia, Pa., for Special Asbestos Co., Inc.

John P. Mason, Philadelphia, Pa., for Turner & Newall, Ltd.

Edward Greer, Mesirov, Gelman, Jaffe, Cramer & Jamieson, Philadelphia, Pa., for GAF Corp.

Swartz, Campbell & Detweiler, Philadelphia, Pa., for Certain-Teed Corp.

Patrick T. Ryan, Ward T. Williams, Drinker, Biddle & Reath, Philadelphia, Pa., David Booth Beers, Shea & Gardner, Washington, D. C., for Cassiar Asbestos Corp., Ltd.

Theodore W. Flowers, Richard M. Jordon, White & Williams, Philadelphia, Pa., for Huxley Development Corp.

MEMORANDUM AND ORDER

NEWCOMER, District Judge.

Defendants move for summary judgment in these cases, asserting that plaintiffs in each case did not file suit within the period allowed by the appropriate statute of limitations. Because of the similarity of legal issues among these cases, the Court will consolidate its rulings with one memorandum of law.

Plaintiffs are workers, or the representatives of decedent workers' estates, who were injured by prolonged exposure to asbestos. They have brought actions sounding in tort for the injuries sustained against the defendants, suppliers of asbestos.

Rule 56 of the Federal Rules of Civil Procedure provides in pertinent part:

(c) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

See Bryson v. Brand Insulation, Inc., 621 F.2d 556 (3d Cir. 1980); Mortensen v. First National Savings and Loan Association, 549 F.2d 884, 891 (3d Cir. 1977). The facts relevant to the timeliness of plaintiffs' actions recited below are not in dispute and summary judgment is therefore appropriate in some of the cases enumerated below.

Discussion

A. Louis Grabowski and Helen Grabowski v. Turner & Newall, et al. No. 78-3046

1. Plaintiff was examined by Dr. David L. Forde on April 5, and April 8, 1976, and on May 1, 1978.

Dr. Forde's examination in 1976 revealed "abnormal pleural densities... compatible with asbestos exposure." Dr. Forde's examination in 1978 revealed a condition "quite compatible with his asbestos exposure."

2. Plaintiff testified in a deposition that Dr. Forde told him in "the spring of 1976" that "it was asbestos getting into the sides of the walls of the lungs" that caused plaintiff's symptoms. Plaintiff testified, "I don't understand medical terms too well, but he tried to explain if in some way that it was relative to asbestos, I believe. I believe he mentioned it was relative to asbestos."

3. In the same deposition, plaintiff testified as follows:

Q. When did anyone definitely tell you that you had problems directly associated with breathing asbestos, for the first time?

A. Dr. Galgon.

Q. When was that; when did you see Galgon?

A. '78.

Q. Did Dr. Ford ever tell you, specifically, that you had problems associated with breathing asbestos?

A. Well, he told me, I had asbestosis.

Q. When was that?

A. In '78.

Q. Was that the first time you were told by a physician that you had a problem relating to breathing asbestos?

A. Yes.

4. Plaintiff filed suit on September 12, 1978.

B. Carl A. DaMato and Rose DaMato v. Bell Asbestos Mines, Ltd., et al., C. A. No. 79-4337

1. Hospital records of May 13, 1975 show that plaintiff complained of persistent cough, shortness of breath, and claimed he had suffered from asbestosis for several years.

2. Records of May 1974 show that plaintiff's physician after rendering a diagnosis of plaintiff's illness advised plaintiff to avoid "dusty" work.

3. On April 12, 1976, plaintiff filed two Petitions for Compensation under both the Occupational Disease Act and the Workmen's Compensation Act.

4. On October 12, 1976 the Workmen's Compensation Board referee found that

plaintiff had been 70% disabled "due to Asbestosis," and awarded compensation.

5. Plaintiff filed suit in April 1979.

C. Pearl Lindahl, adm. of Estate of Fred S. Lindahl, deceased v. Bell Asbestos Mines, Ltd., et al., C. A. No. 79-4338

1. Fred Lindahl, plaintiff's decedent, began to lose weight, had difficulty breathing, and consulted a doctor in September, 1971. Plaintiff testified that these were symptoms of asbestosis, but it is not clear that she was aware of the cause in 1971.

2. Plaintiff's decedent applied for workmen's compensation in 1972, seeking benefits for disablement caused by asbestosis.

3. Plaintiff's decedent died on or about May 3, 1973. Plaintiff testified she believed at that time that plaintiff's decedent had died of cancer caused by exposure to asbestos.

4. Plaintiff filed this action on April 30, 1979.

D. Margo L. Gravatt, adm. of Estate of Clifford Henry Gravatt, Jr., deceased v. Bell Asbestos Mines, Ltd. et al., C. A. No. 79-4339

1. Plaintiff's decedent, Clifford Gravatt was admitted to Lankenau Hospital on May 4, 1975. The admissions documents contain an entry "final diagnosis" under which is entered "mesotheliomic". Decedent's Discharge Summary, dated May 20, 1975 repeats the earlier diagnosis, mesotheliomic, and contains the notation, "he has worked as an asbestos worker for approximately eight months during the Second World War, back in 1941."

2. On February 13, 1976 Christopher Holyroyde, M.D. wrote to Hunter S. Neal, M.D. a letter explaining decedent's condition. Dr. Holyroyde wrote "In view of his clear cut history of asbestos exposure, I see little merit in alternate treatment... and have explained this to the family .... I believe a trial of chemotherapy is worthwhile. This has been explained again to the patient and his family...."

3. Plaintiff's decedent was admitted to Lankenau Hospital on May 3, 1976. Diagnosis was entered as "carcinoma and pleura mesothelioma."

4. Plaintiff's decedent died on May 22, 1976.

5. A discharge summary from Lankenau Hospital, dated May 22, 1976 states in part:

This was the second Lankenau Hospital admission for this 54-year-old man with a known malignant mesothelioma of the left lung and pleura.... Following lengthy discussion with relatives and with the patient himself, the decision was made to keep Mr. Gravatt as comfortable as possible.

6. Suit was filed in 1979.

E. Modesta c. Marincola, Admn. of Estate of Paul G. Marincola, deceased v. Turner & Newall, Ltd., et al., C.A. No. 79-4340

1. Decedent died in February 1966.

2. Decedent's Discharge Summary from Hahnemann Hospital in Philadelphia of February 15, 1966, contains an entry "Final Diagnosis," under which is typed "metastatic carcinoma to the brain and meninges, primary from bronchogenic carcinoma on the left upper lobe."

3. Plaintiff testified that Dr. Hand at Hahnemann Hospital told her that her husband died of lung cancer.

4. Plaintiff filed suit on April 30, 1979.

F. Albert Saylor, Admn. of Estate of Jennie Saylor v. Turner & Newall, et al., C.A. No. 79-4341

1. Plaintiff's decedent died on September 26, 1967.

2. Decedent's death certificate states that she died as a result of "Pulmonary insufficiency due to asbestosis."

3. Plaintiff testified that decedent's doctor told him that decedent's death was caused by asbestosis which resulted from working near asbestos. Plaintiff also testified that he understood in 1967 that decedent's

illness was caused by fiber which she came into contact with at her place of work.

4. Plaintiff filed suit on April 30, 1979.

G. Jennie I. Pearson, Admin. of the Estate of Richard D. Pearson, decedent v. Bell Asbestos Mines, Ltd., et al. C. A. No. 78-4342

1. Decedent's hospital records from Lee Memorial Hospital, Fort Meyers, Florida, include a "Progress Record" form on which are printed instructions for the treating physician. These instructions state, "Record Progress of Case, Complications, Change in Diagnosis, Condition on Discharge, Instructions to Patient." An entry of "6/7/72" states "malignant mesothelioma would be a possibility." An entry of "6/10/72" states "I told he sic and his wife of diagnosis and what problem is." That entry is signed by "J. B. O'Bryan," the treating physician.

2. Plaintiff testified that in 1973 Dr. O'Bryan told her that her husband died as a result of contact with asbestos fibers.

3. Suit was filed April 30, 1979.

Jurisdiction in these cases is based on diversity of citizenship among the parties, and, as the claims arose in Pennsylvania, Pennsylvania law is controlling.

Actions for personal injury and actions brought under the Pennsylvania Survival Act must commence within two years, Pa. Stat.Ann. tit. 12, § 34 (Purdon), replaced by 42 Pa.Cons.Stat.Ann. § 5524.¹ Before 1976, actions brought under the Wrongful Death Act, Pa.Stat.Ann. tit. 12, § 1601 (Purdons) were required to be brought within one year. Pa.Stat.Ann. tit. 12, § 37 (Purdons).²

It is settled law in Pennsylvania that in the case of injury or disease for which the causes are not readily apparent, the statute of limitations does...