Blue (Estate of Washburn) v. Johns-Manville, Corp.
| Decision Date | 12 October 1983 |
| Docket Number | 4001 (127) |
| Citation | 10 Phila. 23 |
| Parties | Christine Blue, Executrix of the Estate of John Charles Washburn, Deceased, and Victoria Washburn, in her own right v. Johns-Manville Corporation et al |
| Court | Pennsylvania Commonwealth Court |
(1) A new limitation period does not start to run each time a new disease develops from the same tortious conduct of the defendant
(2) If the statute of limitations has run for asbestosis, the statute has also run for lung cancer, a separate disease arising from the same asbestos exposure
(3) The effect of this rule of law requiring plaintiffs to initiate suit at the first sign of lung scarring or injury creates injustice and imposes an intolerable burden on the court system
(4) Pennsylvania should adopt the rule that the running of the Statute of Limitations for failure to sue for minimal asbestosis (or pleural scarring) does not bar suit if the plaintiff later develops asbestos-related cancer.
Lee B. Balefsky, Esquire, Martin Greitzer, Esquire and Marc Weingarten, Esquire, for the Plaintiffs
James Willhite, Esquire, for Defendant Raymark Industries
Joseph Ryan, Esquire, for Defendant Pittsburgh Corning
Albert J. Cepparulo, Esquire, for Defendant AC& S
Joseph M. O'Neill, Esquire, for Defendant Armstrong Cork Co.
Barbara Pennell, Esquire, for Defendant Eagle-Picher
David J. Parsells, Esquire, for Defendant Keene Corporation
Michael Cannon, Esquire, for Defendant Fibreboard Corp.
Andrew J. Trevelise, Esquire, for Defendant Celotex Corporation
Lawrence J. Bunis, Esquire, for Defendant GAF Corporation
Brian D. Rosenthal, Esquire, for Defendant Garlock, Inc.
Craig L. Staples, Esquire, for Defendant Pacor, Inc.
Margaret Skelly, Esquire, for Defendant H.K. Porter Co., Southern Asbestos Co. and 48 Insulations
KLEIN, R. B., J.
John Washburn filed suit against numerous asbestos manufacturers in October, 1978, asking for damages for asbestosis and fear of cancer. After filing suit, he contracted lung cancer (alleged to be asbestos-related) and died. Mr. Washburn had worked as an insulator from 1948-77. His daughter, Christine Blue, continued the suit as his Executrix. His wife, Victoria Washburn, also sued in her own right.
The first issue before the Court is whether the asbestosis from which Mr. Washburn suffered was " knowable" by him prior to October, 1976, in which case under Pennsylvania law his claim is barred by the two-year Statute of Limitations. It is the opinion of the Court that the uncontradicted facts demonstrate that Mr. Washburn should be charged with knowledge prior to October, 1976, that asbestos caused a disease of his lungs, and that his claim is therefore barred.
A second question is whether a plaintiff whose claim for asbestosis is barred by the Statute of Limitations can sue for another asbestos-related disease, cancer. Under present Pennsylvania law, the plaintiff cannot. However, in my opinion, this rule should be reversed.
Summary judgment can only be granted when there is no genuine issue as to any material fact, taking the evidence in a light most favorable to the person opposing the entry of the summary judgment and resolving all doubts against the entry of judgment. Acker v. Palena, 260 Pa.Super 214, 216, 393 A.2d 1230, 1232 (1978).
In Volpe v. Johns-Manville Corp., 4 Phila. 290, 295-296 (1980), adopted by the Superior Court in Staiano v. Johns-Manville Corp., Pa.Super , 450 A.2d 681, 684 (1982), Judge TAKIFF set forth the time at which the limitations period begins to run, as follows:
With the question of " reasonableness" as a constant qualification running through the decisional law, the principle emerges that three independent phases of knowledge must be known or knowable to plaintiff before the limitations period commences: (1) knowledge of the injury; (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct.
It is true, as plaintiff contends and defendants concede, that there is a genuine issue of fact as to whether Mr. Washburn actually knew that his lung problem was due to asbestos inhalation before a doctor actually told him in 1977. Regardless of Mr. Washburn's subjective awareness, the uncontradicted facts establish that such information was " knowable" by him before 1976. Therefore, his claim is barred by the Statute of Limitations.
The following facts are uncontradicted:
(1) 1970 -- Mr. Washburn developed pulmonary problems, such as chest pains, shortness of breath, tiring easily (Discovery deposition of 1/27/81, pp. 165-166, incorporated into the record at N.T. 2/22/83, p. 47).
(2) 1971 -- Mr. Washburn was treated by his family doctor, Dr. Paradee, for bronchiolar pneumonia, was advised that the problem could be work-related (he told the doctor he worked with fiberglass), and was advised to wear a mask (N.T. 2/22/83, p. 28, Exhibit D-8).
(3) 1972 -- Mr. Washburn was an insulator from 1948-77, working with asbestos and belonging to the insulators' union (Discovery deposition of 1/27/81, p. 10). He learned from his union journal and from talking to co-workers that asbestos exposure could cause lung disease (Discovery deposition of 1/27/81, p. 165, incorporated into the record at N.T. 2/22/83, p. 47, Exhibit D-10). Also, in the early '70s, Mr. Washburn went with other union officials to visit Dr. Irving Selikoff, the country's leading authority on asbestos disease, in New Jersey (Discovery deposition of 1/23/81, pp. 154-158, incorporated into the record at N.T. 2/22/83, pp. 37-42).
(4) 1973 -- Mr. Washburn went to Peter Green, Esquire, a workmen's compensation specialist, to see if there was a work-related claim Mr. Washburn could file against the government (Discovery deposition of 1/23/81, pp. 11-17, incorporated into the record at pp. 32-33).
(5) 1973 -- At the request of attorney Green, Mr. Washburn went to see E. Spencer Paisley, M.D., a specialist in pulmonary medicine, for a pulmonary condition related to his employment as an insulator using mainly asbestos (N.T. 2/22/83, pp. 51-52). Although Dr. Paisley did not communicate his diagnosis directly to Mr. Washburn, Dr. Paisley wrote to Peter Green and diagnosed Mr. Washburn as having " Pneumoconiosis, asbestosis, occupational" (N.T. 2/22/83, pp. 52-57).
(6) 1975 -- Mr. Washburn filed a release of records form for a health insurance claim. Dr. Lawrence Shefter filled out the form (either before or after the authorization was signed), and filled in a diagnosis after his office visit of " Chronic Asbestosis -- C.O.P.D." (N.T. 2/22/83, pp. 29, 48, Exhibit D-7).
(7) Oct. 1976 -- Two Years before Suit Filed.
Therefore, the facts establish that six years before filing suit Mr. Washburn knew that he had both a pulmonary problem and that asbestos could cause the kind of symptoms that he had. He went to a lawyer to file a claim for employment-related lung problems five years prior to filing suit. Two separate doctors he visited recorded diagnoses of asbestosis three years prior to filing suit. As an insulator, Mr. Washburn either knew or should have known of his exposure to asbestos at his workplace.
Perhaps a jury could conclude that Mr. Washburn never found out what was wrong with him, never asked either of the doctors he consulted and never asked the lawyer he consulted to file a claim for work-related injuries.
But a jury could not reasonably conclude that this information was not " knowable" by Mr. Washburn. All he had to do was ask his doctors or his lawyer.
The law of Pennsylvania is that a person cannot avoid learning about his injury.
In the oft-cited opinion, Volpe, supra, Judge TAKIFF noted the qualification of " reasonableness" to be applied to a plaintiff's diligence in discovering his injury.
In the lead case of Anthony v. Koppers Co., Inc., 284 Pa.Super 81, 425 A.2d 428 (1980), reversed on other grounds, 496 Pa. 119, 436 A.2d 181 (1981), the Superior Court quoted Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963), as follows:
Under the law of Pennsylvania, it is the duty of one asserting a cause of action against another to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute the suit within the prescribed statutory period.
If a person goes to a lawyer to file a suit and goes to two doctors to find out what is wrong with him, how can it be due diligence not to find out what they would say? If a person knows that asbestos causes the symptoms he has and knows that he has been exposed to asbestos, and has gone to two doctors to find out the answer, how can he claim he should not have checked to see that two plus two indeed did equal four?
In Staiano, the Superior Court said the Statute of Limitations begins to run at either of two happenings, when " the tortious injury is discovered or is reasonably discoverable by the plaintiff." [Emphasis supplied.] Supra, at p. 683. The Federal Courts, interpreting Pennsylvania law, have reached the same conclusion. See O'Brien v. Eli Lilly & Co., 668 F.2d 704 (3rd Cir. 1981), and the cases cited therein.
If actual knowledge of an asbestos-related disease were the applicable standard, plaintiff's state of awareness prior to October, 1976 would be a matter of fact for the jury and summary judgment would not be proper. However, if the standards of " knowable" or " reasonably discoverable" are to mean anything, the undisputed facts show Mr. Washburn should have known of his asbestosis prior to 1976. By knowing that he had symptoms that asbestos could cause those...
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