Higginbotham v. Fibreboard Corp.

• Decision Date: 15 July 1993
• Citation: 428 Pa. Superior Ct. 26,630 A.2d 14
• Parties: Nathan HIGGINBOTHAM and Jean Higginbotham, H/W v. FIBREBOARD CORPORATION, Keene Corporation, Owens-Illinois, Inc., GAF Corporation and Armstrong World Industries, Inc. Appeal of FIBREBOARD CORPORATION.
• Court: Pennsylvania Superior Court

428 Pa. Superior Ct. 26

630 A.2d 14

Nathan HIGGINBOTHAM and Jean Higginbotham, H/W v. FIBREBOARD CORPORATION, Keene Corporation, Owens-Illinois, Inc., GAF Corporation and Armstrong World Industries, Inc Appeal of FIBREBOARD CORPORATION.

Superior Court of Pennsylvania.

Argued March 30, 1993.

Filed July 15, 1993.

Reargument Denied September 23, 1993.

[428 Pa. Superior Ct. 27]

Richard T. Wentley, Pittsburgh, for appellant.

Suzanne Reilly, Philadelphia, for appellee.

Before TAMILIA, POPOVICH and CERCONE, JJ.

TAMILIA, Judge:

Defendant Fibreboard¹ appeals from the December 10, 1991 judgment² entered in favor of the plaintiffs, Nathan and Jean Higginbotham, after a jury found Mr. Higginbotham was injured as a result of his exposure to asbestos-containing products manufactured by the appellant and Mrs.

[428 Pa. Superior Ct. 28]

Higginbotham was entitled to money damages for loss of consortium.

Appellant argues, inter alia, the court erred by allowing the jury to award damages on the basis appellee/husband might suffer or fears he might suffer an asbestos-related disease in the future. In support of its position, appellant relied at oral argument on this Court's en banc Opinion in Marinari v. Asbestos Corp. Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), wherein the "separate disease rule" was recognized and adopted as controlling in asbestos exposure actions. This rule allows a cause of action for nonmalignant, asbestos-related lung pathology and a later separate cause of action for cancer. For the reasons which follow, we vacate the judgment entered in favor of the plaintiffs and remand for a new trial in accordance with this Opinion.

The appellees' complaint alleged Mr. Higginbotham suffered from pleural asbestosis. Although expert testimony was introduced in support of this averment and we do not deny pleural thickening, even when asymptomatic, is an injury which gives rise to a cause of action, see Marinari, supra,³ the jury charge delivered on damages contained the following erroneous instruction which, in light of the holding in Marinari, precludes a judgment in favor of plaintiffs.⁴

[428 Pa. Superior Ct. 29]

Members of the jury, I will now charge on the damages. Please do not conclude I feel or do not feel plaintiffs should recover. However, if you feel plaintiffs should recover you must have guidelines to find a fair and adequate amount of compensation.

In each case if you find plaintiff has a compensable asbestos-related disease or injury this will be his only day in court.

. . . .

Doctors testified plaintiff . . . Nathan Higginbotham, has an increased risk of developing asbestos-related mesothelioma. You must determine if an increased risk exists and what figure, if any, is an appropriate award.

If you find an increased risk exists, please do three things. One, decide upon a figure you believe appropriate if plaintiffs develop mesothelioma.

Two, decide upon a fair percentage for plaintiff's increased risk.

And three, multiply the figure by the percentage to calculate a dollar amount, reasonably reflecting each plaintiff's increased risk.

. . . .

All plaintiffs may recover for fear of contracting asbestos-related lung cancer and mesothelioma, if you find their fears are factually reasonable, legitimate and real.

Plaintiffs must prove by competent testimony, one, their fears are sincerely felt.

And two, the lung cancer and mesothelioma they fear may reasonably develop from their current condition.

There is no cause of action for risk or fear of asbestosis.

Plaintiff Nathan Higginbotham . . . may be fairly and adequately compensated for all past, present and future

[428 Pa. Superior Ct. 30]

asbestos-related physical pain, mental anguish, discomfort, inconvenience and distress.

(N.T., 4/17/91, pp. 156, 159-162.) This instruction does not allow for an accurate allocation of damages between appellee's alleged pleural thickening and any speculative future malignancy for which recovery is precluded. Accordingly, the judgment cannot stand.

This, of course, rules out an award of damages based upon the fear of developing asbestos-related lung cancer or mesothelioma no matter how reasonable the basis for such fear. By establishing the two disease rule for recovery and eliminating the bar of the statute of limitations preventing an action for a malignancy which developed after the onset of asbestosis or pleural thickening, the need to anticipate all possible consequences arising out of a single disease approach has been obviated. Just as all "past, present and future asbestos related physical pain, mental anguish, discomfort, inconvenience and distress" (Jury Instruction, N.T., 4/17/91, pp. 162) arising out of asbestosis or pleural thickening injuries may be fairly compensated in the initial asbestosis action, the same factors are relevant in establishing damages for the malignancy at the time it becomes actionable. No recovery may be had merely for the emotion and anguish arising from the possibility of the development of a malignancy. While the appellant did not frame its statement of

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