Clutter v. Johns-Manville Sales Corp.

• Citation: 646 F.2d 1151
• Decision Date: 07 April 1981
• Docket Number: Nos. 79-3004,79-3114 and 79-3531,JOHNS-MANVILLE,s. 79-3004
• Parties: Mary Lou CLUTTER, Executrix of the Estate of Russell L. Clutter, Plaintiff-Appellant, v.SALES CORP. et al., Defendants-Appellees. George DWIGGINS, Plaintiff-Appellant, v. COMBUSTION ENGINEERING, INC. et al., Defendants-Appellees. Martin J. McGREEVEY, Plaintiff-Appellant, v. COMBUSTION ENGINEERING, INC. et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1151

646 F.2d 1151

Mary Lou CLUTTER, Executrix of the Estate of Russell L.

Clutter, Plaintiff-Appellant, v. JOHNS-MANVILLE SALES CORP. et al., Defendants-Appellees.

George DWIGGINS, Plaintiff-Appellant, v. COMBUSTION ENGINEERING, INC. et al., Defendants-Appellees.

Martin J. McGREEVEY, Plaintiff-Appellant, v. COMBUSTION ENGINEERING, INC. et al., Defendants-Appellees.

Nos. 79-3004, 79-3114 and 79-3531.

United States Court of Appeals Sixth Circuit.

Argued Dec. 9, 1980.

Decided April 7, 1981.

Timothy M. Bittel, Sweeney, Mahon & Vlad, Thomas W. White, Robert E. Sweeney, Thomas Terry, Cleveland, Ohio, for plaintiff-appellant.

Thomas P. Meaney, Jr., Cleveland, Ohio, for Asbestos Corp., Ltd.

James P. Conroy, Cleveland, Ohio, for Bell Asbestos Mines, Ltd.

Charles W. Kitchen, Cleveland, Ohio, for Lake Asbestos of Quebec.

Richard E. Guster, Geo. Rooney, Jr., Akron, Ohio, for Cassiar Asbestos Corp.

Harley J. McNeal, Cleveland, Ohio, for Carey-Canadian Mines, Hedman Mines, H. K. Porter Co. and Unarco Industries.

Paul C. Wagner, Jr., McNamara, Gemperlin & Wagner and Albert J. Rhoa, Cleveland, Ohio, for Molded Material Div. of Carlisle Corp.

James L. McCrystal, Jr., Cleveland, Ohio, for World Bestos.

David Booth Beers, Shea & Gardner, Washington, D. C., for Cassiar Asbestos.

Lively M. Wilson, Stitts, McElwain & Fowler, Louisville, Ky., for defendants-appellees.

L. Edward York, York, Bonezzi & Thomas Co., LPA, Cleveland, Ohio, for Forty-Eight Insulation Co.

Robert B. Preston, Arter & Hadden, Cleveland, Ohio, for Combustion Eng.

Richard F. Stevens, Meyers, Stevens & Rea, Cleveland, Ohio, for Johns-Manville Sales Corp.

Parker M. Orr, Frank J. Cumberland, Baker & Hostetler, Cleveland, Ohio, for GAF Corp.

Michael M. Hughes, Thompson, Hine & Flory, William H. Wallace, Barbara J. Arison, Cleveland, Ohio, for Flinkote Co.

Thomas A. Dugan, Ulmer, Berne, Laronge, Glickmar & Curtis, Cleveland, Ohio, for Nicolet Indus.

William D. Bonezzi, Lakewood, Ohio, for Keene Corp., Keene Building Products and P. T. Brake Lining and Auto Friction Corp. Robert D. Archibald, McNeal, Schick & Archibald, Cleveland, Ohio, for Unarco and Standard Asbestos.

Robert F. Hesser, Richard J. Disantis, Hesser, Armstrong, Toomey & Disantis Co., L. P. A., Cleveland, Ohio, for Raybestos-Manhattan, Inc.

Philip J. Hermann, Hermann & Hermann, James C. Cahn, Cleveland, Ohio, for Pittsburgh Corning Corp.

Robert G. Quandt, Quandt, Giffels & Buck, Cleveland, Ohio, for Armstrong Cork Co.

James P. Conroy, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, Ohio, for Rock Wool & Atlas Asbestos.

Jerome S. Kalur, James L. Malone, Reminger & Reminger, Cleveland, Ohio, for Celotex Corp. and Gatke Corp.

Thomas G. Herman, Squire, Sanders & Dempsey, H. Vincent E. Mitchell, Cleveland, Ohio, for Bendix Corp. and Owens-Corning Fiberglas.

Before MERRITT and KENNEDY, Circuit Judges, and MARKEY ^*, Chief Judge.

CORNELIA G. KENNEDY, Circuit Judge.

The sole question in this consolidated appeal is when, under the law of Ohio, a cause of action against a manufacturer of asbestos for injury due to exposure accrues.

Each of the three plaintiffs-appellants sued appellees, manufacturers of products containing asbestos, in separate actions before different District Court judges, claiming injury due to exposure to asbestos. Appellant Clutter was exposed to asbestos prior to 1962 when he helped dismantle a chemical plant and between 1962 and 1964 when he worked with asbestos-containing brake shoe linings. In February 1977, he was diagnosed as having pleural mesothelioma. He filed suit March 8, 1978. He died August 17, 1978. (His widow continued his suit as a survival action and added a wrongful death claim. The wrongful death claim is not before this Court.) Appellant Dwiggins was last exposed to asbestos January 1976. He was disabled as of May 1976, when a tissue sample was taken from his lung. At that time asbestosis was not diagnosed. However, a recut from the same tissue was analyzed February 24, 1978 as showing asbestosis. He filed suit February 24, 1978. Appellant McGreevey worked as an asbestos insulation mechanic 1939-1973. He was first diagnosed as having asbestosis July 1977 and filed suit October 13, 1977.

The courts below held that these claims were governed by the statute of limitations found in Ohio Rev.Code § 2305.10. That section provides that an action for bodily injury shall be brought within two years after the cause thereof arose. The District Courts held that under Ohio law, plaintiffs-appellants' causes of action arose when the injury occurred, which in the present cases was when the last exposure to asbestos occurred. The courts refused to apply the date when the disease manifested itself.

The District Court relied upon Wyler v. Tripi, 25 Ohio St.2d 164, 267 N.E.2d 419 (1971), in which the Ohio Supreme Court refused to apply a discovery rule ¹ in a malpractice case. Although the Ohio Supreme Court later articulated an exception to Wyler and applied the discovery rule to a suit alleging the doctor had negligently left a foreign object inside the patient, see Melnyk v. Cleveland Clinic, 32 Ohio St.2d 198, 290 N.E.2d 916 (1972), the District Courts believed the exception was only for foreign object medical malpractice cases.

Appellants argue that the District Courts misinterpreted the Ohio statute of limitations. They claim that on each occasion on which the Ohio Supreme Court has considered a statute of limitations question, the court has given the statute a more liberal interpretation to allow the parties to proceed to the merits. They distinguish Wyler and Melnyk as involving a different statute which deals with medical malpractice which is shorter for public policy reasons. They further argue that the interpretation applied by the District Courts is arbitrary and capricious, creates a special privilege and immunity, and deprives them of due process guaranteed by the Fourteenth Amendment of the United States Constitution and the right of access to the courts provided by the Ohio Constitution.

Appellees contend that the lower courts' interpretation is correct given Wyler, Melnyk, and recent Ohio appellate court decisions, and that the Supreme Court of Ohio does not always liberalize the statute of limitations when it reaches the issue. They argue that when the causal connection has been sufficiently established between an exposure and an injury such that it is fair to apply a discovery rule should be up to the legislature; that this is not a clear case like Melnyk as proof of cause of injury is complex and, given the long latency period of the disease, the danger of stale claims is great. They contend the interpretation applied below is not so arbitrary as to offend due process and, furthermore, the constitutional claims were not raised below which precludes this Court from considering them.

By a recent amendment to § 2305.10, enacted after these cases had been filed, the Ohio legislature has provided a discovery rule for asbestosis.

For purposes of this section, a cause of action for bodily injury caused by exposure to asbestos or to chromium in any of its chemical forms arises upon the date on which the plaintiff is informed by competent medical authority that he has been injured by such exposure, or upon the date on which, by the exercise of reasonable diligence, he should have become aware that he had been injured by the exposure, whichever date occurs first.

See Act of June 12, 1980, File 216, Ohio Rev.Code (Page's): 1980 Legislative Bulletin, at 124. It does not, however, benefit plaintiffs. The Ohio Constitution, statutes, and case law clearly indicate that the amended statute does not apply to cases already filed before the amendment was enacted. Section 28 of the Ohio Constitution states that the "general assembly shall have no power to pass retroactive laws, " Section 1.58(A)(1) of the Ohio Rev.Code states that a reenactment, amendment or repeal of a statute does not affect the prior operation of the statute or any prior action taken thereunder. The Ohio courts have refused to apply an amendment to statutes affecting the operation of a statute of limitations whether the amendment would have tolled the running of the statute, see Pickering v. Peskind, 43 Ohio App. 401, 183 N.E. 301 (1930), or would have shortened the period thereby barring the plaintiff's cause of action, see Gregory v. Flowers, 32 Ohio St.2d 48, 290 N.E.2d 181 (1972); Ham v. Kunzi, 56 Ohio St. 531, 47 N.E. 536 (1897). This Court need not decide whether or not the amendment would apply to a cause of action from exposure to asbestos which was diagnosed before the statute was amended but suit was not filed until after, as that case is not before us.

A federal court sitting in diversity must apply the law of the state's highest court. If the highest court has not spoken, the federal court must ascertain from all available data what the state law is and apply it. If the state appellate court announces a principle and relies upon it, that is a datum not to be disregarded by the federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise. See West v. American Telephone & Telegraph Co., 311 U.S. 223, 236-37, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940); Ruth v. Bituminous Casualty Corp., 427 F.2d 290, 292 (6th Cir. 1970).

The record does not indicate any dispute that asbestosis is an insidious disease which sometimes manifests itself many years after exposure to asbestos. This Court has already considered Ohio law as it applies to the accrual of a claim against a manufacturer for injury from an insidious disease in Brush Beryllium Co. v. Meckley, 284 F.2d 797 (6th Cir. 1960). There, the plaintiff had sued for injury from berylliosis which was manifested almost ten years after her last exposure to beryllium. This Court found that there was no applicable Ohio law to govern the issue and held her claim...