Biesterfeld v. Asbestos Corp. of America

• Decision Date: 02 April 1991
• Docket Number: No. 900321,900321
• Citation: 467 N.W.2d 730
• Parties: Prod.Liab.Rep. (CCH) P 12,796 Helen BIESTERFELD and Viola Langseth, personal representatives of the Estate of Raymond E. Baron, deceased, Plaintiffs and Appellants, v. ASBESTOS CORPORATION OF AMERICA; Asbestos Corporation, Ltd., a foreign corporation; Carey Canada, Inc., a foreign corporation; The Celotex Corporation, a Delaware corporation; Combustion Engineering, Inc., a Delaware corporation; Keene Corporation, a New Jersey corporation; MacArthur Company, a Minnesota corporation, Defendants, Asbestospray Corporation, a New York corporation; Certain-Teed Products Corporation, a Maryland corporation; Crane-Johnson Lumber, a North Dakota corporation; GAF Corporation, a Delaware corporation; H & A Construction Corporation, a New York corporation; Victor H. Leeby Co., a North Dakota corporation; National Gypsum Company, a Delaware corporation; Proko Industries, a Texas corporation; Spraycraft Corporation; Union Carbide, a New York corporation; U.S. Gypsum, a Delaware corporation; W.R. Grace Company, a New Jersey corporation, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 730

467 N.W.2d 730

Prod.Liab.Rep. (CCH) P 12,796

Helen BIESTERFELD and Viola Langseth, personal representatives of the Estate of Raymond E. Baron deceased, Plaintiffs and Appellants, v. ASBESTOS CORPORATION OF AMERICA; Asbestos Corporation Ltd., a foreign corporation; Carey Canada, Inc., a foreign corporation; The Celotex Corporation, a Delaware corporation; Combustion Engineering, Inc., a Delaware corporation; Keene Corporation, a New Jersey corporation MacArthur Company, a Minnesota corporation, Defendants Asbestospray Corporation, a New York corporation; Certain-Teed Products Corporation, a Maryland corporation; Crane-Johnson Lumber, a North Dakota corporation; GAF Corporation, a Delaware corporation; H & A Construction Corporation, a New York corporation; Victor H. Leeby Co., a North Dakota corporation; National Gypsum Company, a Delaware corporation; Proko Industries, a Texas corporation; Spraycraft Corporation; Union Carbide, a New York corporation; U.S. Gypsum, a Delaware corporation; W.R. Grace Company, a New Jersey corporation, Defendants and Appellees.

Civ. No. 900321.

Supreme Court of North Dakota.

April 2, 1991.

Daniel Plambeck of Stefanson, Landberg & Plambeck, Moorhead, for defendant and appellee Victor H. Leeby Co. Joined in brief of Maureen Holman.

Daniel L. Hovland of Fleck, Mather & Strutz, Ltd., Bismarck, for defendant and appellee W.R. Grace Co. Submitted brief and adopted legal arguments in brief of Maureen Holman.

David C. Thompson (argued) of Craft, Thompson & Boechler, P.C., Fargo, for plaintiffs and appellants.

Maureen Holman (argued on behalf of all appellees) of Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, and Foley & Lardner, Milwaukee, Wisc., for defendants and appellees Certain-Teed Products Corp., GAF Corp., Nat. Gypsum Co., Union Carbide, and U.S. Gypsum.

Sheryl Ramstad Hvass and Louise Dovre of Rider-Bennett, Minneapolis, Minn., for defendant and appellee Proko Industries. Joined in brief of Maureen Holman.

Garylle B. Stewart of Solberg, Stewart, Boulger, Miller & Johnson, Fargo, for defendant and appellee Crane Johnson Lumber. Joined in brief of Maureen Holman.

Susan Hansen of Stich, Angell, Kreidler & Muth, P.A., Minneapolis, Minn., and Richie & Associates, Fargo, for defendants and appellees Asbestospray Corp., Spraycraft Corp., and H & A Const. Corp. Submitted brief and joined in brief of Maureen Holman.

ERICKSTAD, Chief Justice.

Helen Biesterfeld and Viola Langseth, as personal representatives of the estate of Raymond E. Baron, appeal from a judgment dated August 3, 1990, issued by the District Court for the East Central Judicial District. Plaintiffs assert that the district court erred in granting the defendants' ¹ motions for summary judgment on the basis that the time permitted under the statute of limitations for the action had expired. We reverse and remand for jury trial.

In September of 1987, Baron commenced this action against the defendant manufacturers, miners, processors, importers, converters, and/or retailers of asbestos products. The action was based upon the alternate theories of negligence, strict liability, breach of warranty, and fraudulent concealment. On March 24, 1988, a stipulation was entered into releasing Combustion Engineering, Inc. On March 14, 1989, a judgment was entered dismissing the Asbestos Corporation of America for lack of personal jurisdiction, and a stipulation was entered into releasing the MacArthur Company. On August 22, 1989, Asbestospray Corporation, Spraycraft Corporation, H & A Construction, Proko Industries, Inc., Celotex Corporation, Carey-Canada, Inc., W.R. Grace & Co., Asbestos Corporation, Ltd., Victor H. Leeby Co., and Crane Johnson Co., Inc., were dismissed from the action following their motions for summary judgment based upon the expiration of the statute of limitations.

Baron died on November 5, 1989. On December 8, 1989, a document titled "Suggestion on Record of Party's Death" was filed in the district court. On March 9, 1990, a motion for substitution of representatives as plaintiffs, accompanied by an affidavit, was filed in the district court. The record on appeal does not disclose that the district court took any action on the motion but the parties have apparently recognized the need to substitute the personal representatives for the decedent, Raymond E. Baron. In light of that apparent agreement, we approve the substitution but shall, for the sake of simplicity, refer to the plaintiffs as Baron.

On August 3, 1990, a second judgment was entered which dismissed Proko Industries, Inc., Celotex Corporation, Carey-Canada, Inc., Certain-Teed Corporation, GAF Corporation, Keene Corporation, National Gypsum Corporation, Union Carbide, and U.S. Gypsum on the basis of the expiration of the statute of limitations. The August 3, 1990, judgment refers to both the order for the initial dismissals which occurred in August of 1989, and the second order which includes the second set of dismissals. The August 3, 1990, judgment specifically lists six of the ten defendants listed in the August 22, 1989, judgment for dismissal, and makes reference to the stipulations which dismissed Combustion Engineering and the MacArthur Company. On August 31, 1990, a notice of appeal was filed by Baron from the August 3, 1990, judgment. On September 6, 1990, a notice of entry of judgment was filed concerning the August 22, 1989, judgment. The service of the notice of the entry of that judgment was made upon Baron on September 6, 1990.

Baron was exposed to asbestos from 1938 to 1984, during his work as a plasterer and spray texturer. In 1970, he began to have difficulty with his breathing. During the mid 1970's, he became aware of the potential dangers associated with asbestos, and by the late 1970's, he began to wear a facial mask on at least a partial basis while working with asbestos products.

In 1982, Baron attended a meeting concerning asbestos problems at the law office of Shelly Lashkowitz. Sometime after this meeting, chest x-rays of Baron were sent to Dr. Irving J. Selikoff at the Mt. Sinai Medical Center in New York. After examining the x-rays, Dr. Selikoff sent a letter to Shelly Lashkowitz dated April 16, 1982, which said that the x-rays revealed that the "appearances are consistent with asbestosis." Baron received a copy of Dr. Selikoff's letter sometime during mid-1982.

On July 16, 1982, Baron initiated a claim with the North Dakota Worker's Compensation Bureau. In response to a number of questions on the worker's compensation claim form, Baron answered as follows: he was injured while working with the application of asbestos containing products, the parts of the body which were injured were the lungs, the nature of the injury was asbestosis, and that his first treating physician was Dr. Selikoff.

In February of 1983, Shelly Lashkowitz instructed Baron to travel to the Morgan Clinic in Bismarck, North Dakota, in order to have a pulmonary function test performed. The tests were performed by Dr. J. Greene who concluded that Baron suffered from "a severe obstructive lung disease." Dr. Greene did not indicate whether or not Baron's lung problems were asbestos related. The Pulmonary Function Report provided by Dr. Greene reveals that Dr. Greene believed Baron was uncooperative and that Baron had attempted to "falsify test results."

While the record is not completely clear, it does suggest that sometime during 1982 or 1983 Baron was encouraged by Dr. Hugh Thorfinnson to have diagnostic tests performed, and that Dr. Thorfinnson told Baron that his problems appeared to be asbestos related. This was all in connection with Baron's painting of the doctor's home. Dr. Thorfinnson did not personally examine Baron at this time.

By 1984, Baron's breathing problems had intensified. In August of 1984, Baron collapsed and passed out while at work. A similar event occurred approximately one month later and Baron was subsequently hospitalized from September 9 through September 12 of 1984 at St. Luke's Hospital in Fargo, North Dakota. During this hospitalization, Baron was treated by Dr. Barrie L. March. Dr. March discharged Baron on September 12, 1984, with the following diagnosis: "Chronic obstructive airways disease, severe. Pleural changes consistent with asbestosis. Essential hypertension. Probable alcoholism. [Emphasis added.]"

Baron was hospitalized again at St. Luke's in early October 1984. On October 11, 1984, Dr. March reported that Baron's past medical history was, in part, as follows: "He has a history of asbestos exposure and has known pleural plaques but no evidence of pulmonary asbestosis. [Emphasis added.]"

Baron's discharge record from St. Luke's, dated November 2, 1984, contains this statement of medical history: "asbestos exposure with positive plaques on the diaphragms. [Emphasis added.]" However, in the same medical record under the heading of "DISCHARGE MEDICATIONS" the following appears:

"He did have pulmonary function tests done which showed severe chronic obstructive pulmonary disease but no restrictive disease that could be attributable to his asbestos [sic]. His asbestos [sic] is most likely asymptomatic an [sic] is strictly and [sic] exposure without any clinical significance. [Emphasis added.]"

These medical notes were apparently made by Dr. D. Martindale, but were signed by Dr. Patrick Stoy. ² Dr. Stoy continued to treat Baron until June 3, 1986.

On December 28, 1984, Baron's worker's compensation claim was dismissed. While the actual dismissal provides very little information, it does contain a finding of fact that "[t]here is no evidence the claimant sustained an injury or contracted a disease as a result of exposure to asbestosis [sic]"; and the following conclusions: "The claimant failed to prove he sustained a compensable injury"; and "The claimant failed to prove he is entitled to any benefits under the North Dakota Workmen's Compensation Act."

In March of 1987,...