Conneen v. Amatek, Inc., CONSOLIDATED UNDER MDL 875

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: EDUARDO C. ROBRENO, J.
• Citation: 238 F.Supp.3d 652
• Parties: Joseph CONNEEN and Kathleen Conneen, Plaintiffs, v. AMATEK, INC., et al., Defendants.
• Docket Number: CONSOLIDATED UNDER MDL 875,E.D. Pa. Civil Action No. 2:15–cv–1063–ER
• Decision Date: 28 February 2017

238 F.Supp.3d 652

Joseph CONNEEN and Kathleen Conneen, Plaintiffs,
v.
AMATEK, INC., et al., Defendants.

CONSOLIDATED UNDER MDL 875
E.D. Pa. Civil Action No. 2:15–cv–1063–ER

United States District Court, E.D. Pennsylvania.

Signed February 28, 2017
Filed March 2, 2017

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Christopher B. Norris, Richard Nemeroff, Nemeroff Law Firm, Dallas, TX, Carla Jo Guttilla, The Nemeroff Law Firm, Pittsburgh, PA, for Plaintiffs.

John A. Turlik, Segal McCambridge Singer & Mahoney, John P. McShea, McShea Law Firm PC, Michael J. Block, David C. Weinberg, Mark Douglas Eisler, Wilbraham, Lawler & Buba, P.C., Francis McGill Hadden, Gibbons P.C., David P. Lodge, Susan M. Valinis, Reilly Janiczek & McDevitt P.C., Tiffany F. Turner, Dickie McCamey & Chilcote, G. Daniel Bruch, Jr., Swartz Campbell, LLC, W. Matthew Reber, Leroy J. Janiczek, Catherine N. Jasons, Robert N. Spinelli, Kelley Jasons McGowan Spinelli & Hanna, LLP, Michael L. Turner, Joshua D. Scheets, Joan P. Depfer, Marshall Dennehey Warner Coleman & Goggin, Kevin J. O'Brien, Marks, O'Neill, O'Brien, Doherty & Kelly P.C., John C. McMeekin, Rawle & Henderson, Joseph I. Fontak, Leader &Berkon LLP, Philadelphia, PA, Joel D. Gusky, Frankford, DE, Joseph R. Schaper, Maron Bradley & Anderson PA, Pittsburgh, PA, for Defendants.

MEMORANDUM

EDUARDO C. ROBRENO, J.

This case was removed in March of 2015 from the Court of Common Pleas of Philadelphia to the United States District Court for the Eastern District of Pennsylvania as part of MDL–875.

Plaintiffs assert that Mr. Conneen developed lung cancer as a result of, inter alia , his exposure to asbestos released from products manufactured and/or supplied by Defendant Goulds Pumps, Inc. ("Goulds" or "Defendant") and/or about which Defendant owed and breached a duty of care. (See Exhibit I to Pl. Opp., ECF No. 114 at 46–49, ¶¶ 7–16.)

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Plaintiffs have brought claims against various defendants. Defendant Goulds has moved for summary judgment, arguing that Plaintiffs' claims are barred by the applicable statute of limitations.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiffs allege that Joseph Conneen ("Decedent" or "Mr. Conneen") was exposed to asbestos while, inter alia , working as a pipefitter and plumber at various locations in Pennsylvania during the period from 1962 to 1980. Defendant Goulds manufactured pumps. The locations of the alleged asbestos exposure identified in Plaintiffs' Complaint are:

• Philadelphia Naval Shipyard

• Rohm and Haas Chemicals—Bristol, PA

• Rohm and Haas chemical plant—Philadelphia, PA (Bridesburg neighborhood)

(Exhibit I to Pl. Opp., ECF No. 114 at 48, ¶ 5.)

Defendant Goulds has moved for summary judgment, arguing that Plaintiffs' claims are barred by Pennsylvania's two-year-long statute of limitations. Although Plaintiffs appear to agree with Defendant that Pennsylvania law governs their claims against Defendant (and that a two-year-long statute of limitations is applicable), Plaintiffs contend that their Complaint was timely filed.

In connection with Plaintiffs' opposition, Mr. Conneen has provided an affidavit setting forth the events surrounding his diagnosis and his discovery of asbestos as a potential cause of his lung cancer. (See Exhibit A to Pl. Opp., ECF No. 114 at 13–15.) According to Plaintiffs, Mr. Conneen did not learn that asbestos was potentially a cause of his illness until February 12, 2013. Plaintiffs contend that this renders the Complaint timely because the statute of limitations did not begin to run until February 12, 2013 (when he first learned that his lung cancer may have been caused by asbestos) and that, to the extent that it can be said to have begun to run when he learned of his lung cancer diagnosis (in December of 2012), tolling of the statute of limitations is warranted because he did not know at that time that asbestos may have been a cause of the illness (i.e., he had no reason or basis for bringing an asbestos action at that time).

By way of a preliminary scheduling order, discovery in this case was limited to discovery on the issue of statute of limitations. (See ECF No. 73.) While Defendants were permitted to conduct discovery—including deposition of Mr. Conneen—on this matter, it appears from the record that Mr. Conneen has not been deposed. Rather, in seeking summary judgment, Defendants rely exclusively upon medical records from a series of medical procedures and doctors' visits that occurred in December of 2012.

It is undisputed that the Complaint in this case was filed on January 20, 2015.

II. LEGAL STANDARD

A. Summary Judgment Standard

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A motion for summary judgment will not be defeated by ‘the mere existence’ of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd. , 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A fact is "material" if proof of its existence or non-existence

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might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505.

In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth. of N.Y. & N.J. , 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v. Moessner , 121 F.3d 895, 900 (3d Cir. 1997) ). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must "set forth specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 250, 106 S.Ct. 2505.

B. The Applicable Law

The alleged asbestos exposures at issue occurred at several locations in Pennsylvania, some of which were clearly land-based exposures (i.e., at Rohm and Haas facilities in Bristol and the Bridesburg neighborhood of Philadelphia). When the parties to a case involving land-based exposure agree to application of a particular state's law, this Court has routinely applied that state's law. See , e.g. , Brindowski v. Alco Valves, Inc. , No. 10-64684, 2012 WL 975083, *1 n. 1 (E.D. Pa. Jan 19, 2012) (Robreno, J.).

However, there were also alleged asbestos exposures at the Philadelphia Naval Shipyard, which may have been land-based exposures (i.e., occurring at a location within the shipyard not onboard a ship, such as a repair shop), but were more likely on-ship (i.e., sea-based) exposures. See Conner v. Alfa Laval, Inc. , 799 F.Supp.2d 455 (E.D. Pa. 2011) (Robreno, J.) (applicability of maritime law generally); Deuber v. Asbestos Corp. Ltd. , No. 10-78931, 2011 WL 6415339 (E.D. Pa. Dec. 2, 2011) (Robreno, J.) (distinguishing between land-based and ship-based exposures within a shipyard facility). As this Court has routinely held, where a case sounds in admiralty, application of a state's law would be inappropriate. See , e.g. , Mack v. General Elec. Co. , 896 F.Supp.2d 333, 336 (E.D. Pa. 2012) (Robreno, J.) (citing Gibbs ex rel. Gibbs v. Carnival Cruise Lines , 314 F.3d 125, 131–32 (3d Cir. 2002) ). Therefore, if some of the claims at issue are governed by maritime law (i.e., arise from alleged sea-based asbestos exposure), they could not be barred by the Pennsylvania statute of limitations—and the Court could instead grant summary judgment on those claims only if they are barred by the maritime law statute of limitations.

For the reasons that follow below, the outcome of Defendant's motion is the same regardless of whether Pennsylvania law or maritime law is applied¹ —and regardless

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of whether only one or both laws are applicable to all or part of Plaintiffs' claims. (In other words, neither statute of limitations would bar any of Plaintiffs' claims.) Therefore, the Court need not scour the record for indications as to whether the alleged asbestos exposures at the Naval Shipyard are properly governed by maritime law or Pennsylvania state law.²

C. Statute of Limitations (Under Pennsylvania Law)

Under Pennsylvania law, the statute of limitations for an asbestos-related injury is, generally, two years from the date on which a claim may be brought (i.e., the date on which an injury occurs). See Abrams v. Pneumo Abex Corp. , 602 Pa. 627, 981 A.2d 198 (2009) (asbestos case); Bone v. American Standard , No. 2468 EDA 2012, 2013 WL 5038573 (Pa. Super. 2013) (same); 42 Pa. C.S.A. § 5524(8) (and see § 5524(2) ); see also Fine v . Checcio , 582 Pa. 253, 266, 870 A.2d 850, 857 (2005) (discussing, generally, in a non-asbestos case, the running of the statute of limitations under...