DiMedio v. Consolidated Rail Corp.

• Decision Date: 15 December 1986
• Docket Number: Civ. A. No. 85-580 JJF,Master File No. Misc. 85-100.
• Citation: 649 F. Supp. 1340
• Court: U.S. District Court — District of Delaware
• Parties: In re Asbestos Litigation, Limited to Concetta DIMEDIO, Administratrix of the Estate of Gabriel DiMedio, Deceased, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Penn Central Corporation, Allied Corporation, Armstrong World Industries, Carey Canada, Inc., Certainteed Corporation, Eagle Picher Industries, Keene Corporation, Nosroc Corporation, Owens-Illinois, Inc., Raymark Industries, Tannetics, Inc., TNT Liquidating Company, Union Rubber, Inc., and W.R. Grace Co., Defendants, v. ANCHOR PACKING COMPANY, Celotex Corporation, successor in interest to Philip Carey Corporation, Briggs Manufacturing Company and/or Panacon Corporation, Durox Equipment Corporation, Flintkote Company, Garlock, Inc., John Crane-Houdaille, Inc., Nicolet, Inc., Owens-Corning Fiberglass Corporation, J.W. Roberts, Ltd., Studebaker-Worthington, Inc., Turner & Newall PLC., and Turner Asbestos Fibers Ltd., Third-Party Defendants.

649 F. Supp. 1340

In re Asbestos Litigation, Limited to Concetta DIMEDIO, Administratrix of the Estate of Gabriel DiMedio, Deceased, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Penn Central Corporation, Allied Corporation, Armstrong World Industries, Carey Canada, Inc., Certainteed Corporation, Eagle Picher Industries, Keene Corporation, Nosroc Corporation, Owens-Illinois, Inc., Raymark Industries, Tannetics, Inc., TNT Liquidating Company, Union Rubber, Inc., and W.R. Grace Co., Defendants, v. ANCHOR PACKING COMPANY, Celotex Corporation, successor in interest to Philip Carey Corporation, Briggs Manufacturing Company and/or Panacon Corporation, Durox Equipment Corporation, Flintkote Company, Garlock, Inc., John Crane-Houdaille, Inc., Nicolet, Inc., Owens-Corning Fiberglass Corporation, J.W. Roberts, Ltd., Studebaker-Worthington, Inc., Turner & Newall PLC., and Turner Asbestos Fibers Ltd., Third-Party Defendants.

Civ. A. No. 85-580 JJF, Master File No. Misc. 85-100.

United States District Court, D. Delaware.

December 15, 1986.

Douglas B. Canfield of Jacobs & Crumplar, P.A., Wilmington, Del., for plaintiff DiMedio.

Somers S. Price, Jr. of Potter, Anderson & Corroon, Wilmington, Del., for Consol. Rail Corp., Penn Cent. Corp. and co-counsel for Armstrong World Industries.

Richard K. Herrmann of Bayard, Handelman & Murdoch, P.A., Wilmington, Del., for Allied Corp. and TNT Liquidating.

C. Scott Reese of Cooch and Taylor, Wilmington, Del., for Raymark Industries.

Douglas B. Catts of Schmittinger & Rodriguez, P.A., Dover, Del., co-counsel for Carey Canada and Celotex Corp.

Richard P.S. Hannum of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for W.R. Grace Co.

Howard M. Berg of Howard M. Berg & Associates, Wilmington, Del., for Nicolet, Inc. Roderick R. McKelvie of Ashby, McKelvie & Geddes, Wilmington, Del., for John Crane-Houdaille, Inc.

Michael B. McCauley of Palmer, Biezup & Henderson, Wilmington, Del., for Anchor Packing Corp.

David L. Baumberger of Tybout, Redfearn, Casarino & Pell, Wilmington, Del., for Celotex, Certainteed Corp., Durox Equipment Corp., Eagle-Picher Industries, Flintkote Co., Keene Corp., Nosroc Corp., Owens-Illinois, Inc., Owens-Corning Fiberglass Corp., J.W. Roberts, Ltd., Turner & Newall PLC., Turner Asbestos Fibers Ltd., and co-counsel for Armstrong Industries and Carey Canada, Inc.

James F. Bailey, Jr. of Elzufon & Bailey, P.A., Wilmington, Del., for Studebaker-Worthington, Inc.

Michael J. Goodrick of Theisen, Lank, Mulford & Goldberg, P.A., Wilmington, Del., for Union Rubber, Inc.

OPINION

MURRAY M. SCHWARTZ, Chief Judge.

Defendant Owens-Illinois, Inc., has moved for judgment on the pleadings.¹ Defendant asserts that plaintiff Concetta DiMedio's wrongful death and survival claims are time-barred as a matter of law. Although the Magistrate to whom this case was referred has crafted a well-written recommendation that the motion be granted, I disagree on the resolution of the controlling question of law and consequently will deny the motion.

I. FACTS

Plaintiff Concetta DiMedio, administratrix of the estate of Gabriel DiMedio, alleges in this diversity action that her decedent suffered illness and death as a result of exposure within the scope of his employment to asbestos that was manufactured or supplied by the defendant. The complaint states that the plaintiff's decedent died on October 6, 1982. This case was commenced on October 2, 1985. The defendant urges that the wrongful death and survival claims — including counts of negligence, misrepresentation, and failure to warn — are barred by the applicable two-year statutes of limitations.² The plaintiff responds that neither she nor the decedent were chargeable with knowledge before the decedent's death that his illness resulted from exposure to asbestos.³ Thus, her argument goes, the judicially-created "discovery rule" should operate to delay the running of the statutes of limitations until the plaintiff knew or should have known of the connection between asbestos and the decedent's illness.

II. DISCUSSION

A. Evidence of State Law

A federal court exercising diversity jurisdiction must apply the substantive law of the state in which it sits. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Substantive law includes statutes of limitations. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Accordingly, authoritative interpretations of the relevant statutes of limitations by Delaware's highest court are outcome-determinative. See Erie, 304 U.S. at 78, 58 S.Ct. at 822; Safeco Insurance Co. v. Wetherill, 622 F.2d 685, 687 (3d Cir.1980).

Unfortunately, neither the Delaware Supreme Court nor any other Delaware court has addressed whether the discovery rule can delay until some time after the death of the injured person the running of the statute of limitations in wrongful death or survival actions. This Court must therefore predict how the Delaware Supreme Court would decide the issue. See Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967); McGowan v. University of Scranton, 759 F.2d 287, 291 (3d Cir.1985). In attempting to forecast state law, a federal court "must consider relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand." McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 663 (3d Cir.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980). Also pertinent are court decisions in other jurisdictions. Brown v. Caterpillar Tractor Co., 696 F.2d 246, 250 (3d Cir.1982).

B. The Wrongful Death Claim⁴

Under 10 Del.C. § 8107, "no action to recover damages for wrongful death or for injury to personal property shall be brought after the expiration of 2 years from the accruing of the cause of such action." Section 8107 does not state whether a cause of action for wrongful death may "accrue" at some point after the death of the plaintiff's decedent — for example, at the time that the plaintiff discovers a connection between the death and an actionable wrong. The defendant argues that the Delaware Supreme Court would hold that a wrongful death action based on exposure to asbestos accrues at the time the asbestos-related disease first manifests itself and becomes ascertainable or at the time of death, whichever is earlier. Thus, the discovery rule would toll the statute of limitations in favor of the injured person, but not in favor of his survivors.

Although no Delaware cases have addressed whether the discovery rule extends to wrongful death cases, it is well established in Delaware that the rule may operate to delay the running of the statute of limitations in personal injury cases.⁵ In the seminal case of Layton v. Allen, 246 A.2d 794 (Del.1968), the Delaware Supreme Court held that in an action for medical malpractice,

when an inherently unknowable injury, such as is here involved, has been suffered by one blamelessly ignorant of the act or omission and injury complained of, and the harmful effect thereof develops gradually over a period of time, the injury is "sustained" under § 8118 when the harmful effect first manifests itself and becomes physically ascertainable.⁶

Id. at 798. The Court stated that it would be unreasonable "to assume that the General Assembly intended to grant a remedy for a wrong but to bar the remedy before the wrong was physically ascertainable by due diligence." Id. at 797.

In Bendix Corp. v. Stagg, 486 A.2d 1150 (Del.1984), the Court extended the discovery rule announced in Layton to latent occupational diseases resulting from asbestos exposure. The Court held that the statute of limitations for a personal injury action in such a case begins to run when the harmful effect first manifests itself and becomes physically ascertainable. Id. at 1153. In Sheppard v. A.C. & S. Co., 498 A.2d 1126 (Del.Super.Ct.1985), Judge Poppiti held that the statute of limitations begins to run not simply when the harmful effect first manifests itself, but when the plaintiff is "chargeable with knowledge that his physical condition was attributable to asbestos exposure." Id. at 1132 (quoting Stagg v. Bendix Corp., 472 A.2d 40, 43 (Del.Super.Ct.), aff'd, 486 A.2d 1150 (Del. 1984)). The Delaware Supreme Court affirmed this refinement of the discovery rule. See Keene Corp. v. Sheppard, 503 A.2d 192 (Del.1986); see also Nutt v. A.C. & S. Co., C.A. No. 80-C-FE-8, slip op. (Del.Super.Ct. July 19, 1984) (discussing the information that must be available before a person is chargeable with knowledge that his physical condition is attributable to asbestos exposure).

The Supreme Court has also applied the discovery rule to actions controlled by 10 Del.C. § 8106, the general three-year statute of limitations. In Isaacson, Stolper & Co. v. Artisan's Savings Bank, 330 A.2d 130 (Del.1974), the Court relied on Layton in holding that section 8106 does not begin to run in an action for professional malpractice until the plaintiff is put on notice of the defendant's "inherently unknowable" act or omission. Id. at 133. Significantly, the operative language of section 8106 is identical to the language of section 8107, the wrongful death statute of limitations.⁷ See also Pioneer National Title Insurance Co. v. Child, 401 A.2d 68 (Del.1979) (cause of action for negligent title search does not accrue until plaintiff contracts to sell the property).

Courts in at least eight states have extended to wrongful death actions the discovery rule applicable in personal injury and other tort cases. For example, in White v. Johns-Manville Corp., 103 Wash.2d 344, 693 P.2d 687 (1985), the Supreme Court of Washington held that a cause of action for wrongful death accrued "at the time the wrongful death claimant knew or should have known that the death of...