Cochrane v. Owens-Corning Fiberglas Corp.

• Decision Date: 28 September 1995
• Docket Number: OWENS-CORNING
• Citation: 631 N.Y.S.2d 358,219 A.D.2d 557
• Parties: , Prod.Liab.Rep. (CCH) P 14,373 William COCHRANE, et al., Plaintiffs-Appellants, v.FIBERGLAS CORPORATION, et al., Defendants-Respondents, and Keene Corporation, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 358

631 N.Y.S.2d 358

219 A.D.2d 557, Prod.Liab.Rep. (CCH) P 14,373

William COCHRANE, et al., Plaintiffs-Appellants, v. OWENS-CORNING FIBERGLAS CORPORATION, et al., Defendants-Respondents and Keene Corporation, et al., Defendants.

Supreme Court, Appellate Division First Department.

Sept. 28, 1995.

A. Golanski, for plaintiffs-appellants.

J. Silbert, R. Toews, J. Schmitt, for defendants-respondents.

Before SULLIVAN, J.P., and RUBIN, KUPFERMAN and NARDELLI, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Helen E. Freedman, J.), entered December 14, 1994, which granted defendants-respondents' motions for summary judgment and which dismissed the complaint as time-barred, reversed, on the law, the motions denied and the complaint reinstated, without costs.

The issue presented by this appeal is whether plaintiff discovered or should, in the exercise of reasonable diligence, have discovered injury resulting from exposure to asbestos on or before December 8, 1989, i.e., three years prior to commencement of this action (CPLR 214-c). The record indicates that plaintiff was exposed to asbestos during a four-year period while working in the City of New York for Consolidated Edison. Plaintiff has a history of shortness of breath with diminished respiratory excursion, for which he was seen at the emergency room of Mercy Hospital Medical Center in Des Moines, Iowa on December 5, 1985 and on November 18, 1987. On both occasions, he was examined by Martin Aronow, D.O. and diagnosed as suffering from paroxysmal atrial fibrillation.

Chest x-rays taken at each visit revealed pleuroparenchymal scarring, and the radiology reports raise a question of exposure to asbestos. Based upon these reports, defendants maintain that plaintiff should have known that he had lung disease caused by occupational exposure to asbestos by November of 1987. Plaintiff, however, avers that he was not told that he might have been injured by asbestos exposure until January 1990, when he was diagnosed by Greg Hicklin, M.D. as suffering from "asbestos-related diffuse pleural thickening."

Supreme Court concluded, "In view of the ample documentary evidence to the contrary, plaintiff's claim that he did not know he had an asbestos related condition until Dr. Hicklin told him in 1990 is not credible." While there is certainly evidence in the Mercy Hospital radiological studies suggestive of pulmonary impairment resulting from "exposure to asbestos or drugs which could have induced extensive disease", it remains that no definitive diagnosis was reached by doctors at that institution. Indeed, a preoperative evaluation dated April 16, 1989 undertaken for Dr. Aronow recites a history of "hypertension and paroxysmal tachycardia" as well as "chronic bronchitis". The report further notes that plaintiff is 6 feet 4 inches tall and weighs 345 pounds. That plaintiff's physical condition may have complicated diagnosis is reflected in a radiology report from Diagnostic Imaging Associates, located in Des Moines, which states: "This examination shows pleural based densities bilaterally. In this large individual * * * this most likely represents large amount of extra pleural fat."

Whether the physicians at Mercy Hospital knew or should have known that plaintiff's condition might be related to exposure to a toxic substance is not the issue. The operative question is when sufficient information was communicated to plaintiff so as to induce a reasonable person to associate his physical condition with exposure to a toxic substance. In this regard, the record is far from clear. At his deposition, Dr. Aronow stated that he did not discuss--or could not remember discussing--the radiology reports with plaintiff at Mercy Hospital's emergency room.

What constitutes discovery of an injury pursuant to CPLR 214-c is a matter of some complexity. This Court has accorded the statute a liberal interpretation consistent with the legislative purpose "to remedy the fundamental injustice to victims suffering latent injuries" (Di Marco v. Hudson Valley Blood Servs., 147 A.D.2d 156, 160, 542 N.Y.S.2d 521 [Ellerin, J.]. As noted by a leading commentator: "It is hard to believe that the first onset of symptoms would trigger the statute since this would...