In re Hawaii Federal Asbestos Cases, 92-00706.

• Decision Date: 01 June 1994
• Docket Number: No. 92-00706.,92-00706.
• Citation: 854 F. Supp. 702
• Parties: In re HAWAII FEDERAL ASBESTOS CASES. Esther IIDA, individually and as Legal Representative of the Estate of Kenji Iida, deceased, Plaintiffs, v. ALLIED SIGNAL, INC., etc., et al., Defendants.
• Court: U.S. District Court — District of Hawaii

854 F. Supp. 702

In re HAWAII FEDERAL ASBESTOS CASES.

Esther IIDA, individually and as Legal Representative of the Estate of Kenji Iida, deceased, Plaintiffs, v. ALLIED SIGNAL, INC., etc., et al., Defendants.

No. 92-00706.

United States District Court, D. Hawai`i.

June 1, 1994.

COPYRIGHT MATERIAL OMITTED

Gary O. Galiher, L. Richard DeRobertis, and Derek S. Nakamura, Honolulu, HI, for plaintiffs.

Edward J. Bybee, Bybee, Chang & Rulon, Honolulu, HI, for Wagner Elec. Corp.

Jerold T. Matayoshi and Christine E. Kuriyama, Fukunaga, Matayoshi, Hershey & Kuriyama, Honolulu, HI, for Kelsey Hayes Co.

James C. McWhinnie, Damon, Key, Bocken, Leong & Kupchak, Honolulu, HI, for Abex Corp.

Jeffrey S. Portnoy, Cades, Schutte, Fleming & Wright, Honolulu, HI, for Allied Signal, Inc.

Helen H. Roesser, Honolulu, HI, for BorgWarner Corp.

Charles Witherwax and Greg Nishioka, Honolulu, HI, for Chrysler Corp.

John R. Myrdal and Dianne G. Jagmin, Honolulu, HI, for General Motors Corp.

ORDER RE: MOTION FOR SUMMARY JUDGMENT ON ISSUE OF STATUTE OF LIMITATIONS

CONTI, District Judge.

I. INTRODUCTION

Plaintiff Esther Iida filed the present action on September 28, 1992, individually and as legal representative of the estate Kenji Iida, to recover damages arising out of Mr. Iida's illness and death. The complaint alleges that Mr. Iida died from pulmonary disease caused by his exposure to automotive products containing asbestos manufactured by Allied Signal and other defendants. Plaintiff asserts claims on behalf of the estate on a variety of products liability and warranty theories. Plaintiff also asserts a wrongful death claim in her individual capacity. The matter is presently before the court on defendants' motions for summary judgment on the issue of statute of limitations.¹

II. BACKGROUND

The following facts are not disputed.

Mr. Kenji Iida died from pulmonary interstitial fibrosis on January 7, 1991. The instant lawsuit was filed on September 28, 1992, one year and nine months later.

Mr. Iida worked as an automotive mechanic from 1944 until his retirement in 1984. During his employment as a mechanic, Mr. Iida worked with automotive brake and clutch products allegedly manufactured by defendants. These automotive products contained asbestos ("asbestos friction products"). Mr. Iida's exposure to asbestos friction products allegedly occurred between 1944 and 1980. Mr. Iida stated that although he had worked with friction products made by several manufacturers, he could only remember one brand name, "Raybestos."

According to Mr. Iida, symptoms of asbestosis emerged in October of 1984. He developed a chronic cough and suffered from fatigue which worsened progressively during the following years. Iida's doctors discovered a shadow on his lung on X-rays taken in 1984.

Mr. Iida's pulmonary problems intensified during 1985. Dr. James Lambeth, a radiologist, reported the presence of interstitial fibrosis in Iida's lungs as of December, 1985. Dr. Lambeth concluded that Iida suffered from mild pulmonary fibrosis.

Mr. and Mrs. Iida first learned of the general dangers associated with asbestos while watching a television news program during the late 1980's. However, plaintiffs maintain that they only became aware of the possible relationship between Iida's respiratory condition and his asbestos exposure during a consultation with Dr. Benjamin Ono in May of 1986.

Mr. Iida was hospitalized in 1986 for various tests, including a bronchoscopy and trans-bronchial lung biopsy. The results indicated non-specific chronic inflammation. During the spring and summer of 1986, Dr. James Williams took a series of X-rays of Mr. Iida's lungs which confirmed the presence of diffuse interstitial infiltrates or fibrosis.

In 1988, Dr. Ono referred Iida to Dr. David Andrew, a pulmonologist at Straub Clinic & Hospital for "evaluation of chronic cough, exertional dyspnea and pulmonary infiltrates on chest x-ray." Mr. Iida informed Dr. Andrew that he had been extensively exposed to asbestos fiber during his employment as a mechanic while realigning automotive brakes.

On June 6, 1988, Dr. Andrew concluded that Mr. Iida suffered from an asbestos related disease. Specifically, he returned a clinical diagnosis of "asbestosis" — a "slowly progressive diffuse interstitial fibrotic disease." Plaintiff admitted that she and her husband were informed by Dr. Ono that Iida suffered from Asbestosis in March or April of 1990. Dr. Ono maintains, however, that "no final or definite diagnosis of asbestosis was made by me or conveyed by me to Mr. Iida before Mr. Iida's death."

On August 21, 1990, Dr. Andrew re-evaluated Mr. Iida at the request of Dr. Ono. Dr. Andrew's clinical notes of the visit confirmed his previous diagnosis of asbestosis. Dr. Andrew notified Dr. Ono of his findings, including his diagnosis of "pulmonary asbestosis" by a letter dated August 21, 1990.

Mr. Iida was hospitalized from August 22 to August 23, 1990 at the Straub Clinic for tests to determine whether he suffered from spinal cord compression. The hospital records, including the nurses admission notes, the out-patient and short-stay records and electromyography report, contain numerous references to Mr. Iida's history of asbestosis. One entry specified that "pt patient has lung disease — asbestosis dx diagnosed two years ago."

Sometime before September 19, 1990, Dr. Ono informed Mr. Iida that his pulmonary disorder was work-related. Mr. Iida prepared a claim for workers' compensation benefits dated September 19, 1990, in which he recited that he suffered from asbestosis related to his employment as an automobile mechanic. Specifically, Mr. Iida listed the date of accident as "July, 1944," and described his condition as follows: "While working as a mechanic over the years, developed lung damage, asbestosis (symptoms surfaced about Oct., 1984)." Mr. Iida further indicated that he suffered from "asbestosis" in the area of the form designated for the claimant's description of work-related injury or illness.

In a physician's report filed in support of Mr. Iida's worker's compensation claim on October 25, 1990, Dr. Ono stated that the only cause of his patient's condition was "lung damage & Asbestosis" related to his work as an automobile mechanic. Dr. Ono's final diagnosis was "Interstitial Fibrosis, Cough."

III. LEGAL STANDARD

Summary judgment is proper only when there is no genuine issue of material fact and, when viewing the evidence in the light most favorable to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56(c); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir.1985). Once a summary judgment motion is made and properly supported, the opposing party may not rest on the mere allegations of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Myrtle Nell Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine factual issue is an issue that may be reasonably drawn in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Moreover, if the factual context makes the opposing party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to establish a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

A court determining whether a plaintiff's action is time-barred must apply the substantive law of the forum state, including that state's applicable statutes of limitation. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79-80, 58 S.Ct. 817, 822-823, 82 L.Ed. 1188 (1938); Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Accordingly, Hawaii's statutes of limitation will control in the instant action.

IV. DISCUSSION

Plaintiffs allege various causes of action against Allied Signal, General Motors and the other manufacturing defendants, including claims for products liability, negligence, breach of warranty and wrongful death. Defendants contend that they are entitled to summary judgment on each of plaintiffs' claims on grounds that they are barred by the applicable statutes of limitations. The court grants in part and denies in part defendants' motions for summary judgment.

A. Personal Injury Claims

H.R.S. section 657-7 is the statute of limitations governing personal injury claims. This section provides that "actions for the recovery of compensation for damage or injury to persons or property shall be instituted within two years after the cause of action accrued ..." Au v. Au, 63 Haw. 210, 216, 626 P.2d 173 (1981).

Under Hawaiian law, an action for personal injury or property damage does not accrue, and the applicable statute of limitations does not commence, until a plaintiff "could reasonably have been aware that she had a claim." Yamaguchi v. Queen's Medical Center, 65 Haw. 84, 90, 648 P.2d 689 (1982) (claim accrues upon discovery of injury, negligent act and causation). The Ninth Circuit has applied this standard to a Hawaii asbestos action brought by a naval shipyard worker. Carvalho v. Johns-Manville Sales Corporation, et. al., (Carvalho II) 871 F.2d 891 (9th Cir.1989). The Carvalho II court held that a cause of action accrues within the meaning of H.R.S. section 657-7 when the plaintiff discovers, or in the exercise of reasonable diligence, should have discovered, that his lung disorder was caused by asbestos and that defendants' negligence may have caused the injury. Id., at 894.

Moreover, a plaintiff's "knowledge of a claim involves knowledge that the defendant's negligence or violation of a duty may have caused the injury." Id., at 894. Knowledge of a claim is not, however, synonymous with specific knowledge that a plaintiff has a legal cause of action. As explained in Sahlie v. Johns-Manville Sales...