Joint Eastern & Southern Dist. Asbestos Litigation, In re

• Decision Date: 28 April 1992
• Docket Number: No. 989,D,OWENS-CORNING,989
• Citation: 964 F.2d 92
• Parties: Prod.Liab.Rep. (CCH) P 13,151 In re JOINT EASTERN & SOUTHERN DISTRICT ASBESTOS LITIGATION. Arlene MAIORANA, Individually and as Administratrix of the Estate of John Maiorana, Plaintiff-Appellant, v.FIBERGLAS CORP., et al., Defendants-Appellees. ocket 91-9079.
• Court: U.S. Court of Appeals — Second Circuit

Page 92

964 F.2d 92

Prod.Liab.Rep. (CCH) P 13,151

In re JOINT EASTERN & SOUTHERN DISTRICT ASBESTOS LITIGATION Arlene MAIORANA, Individually and as Administratrix of the Estate of John Maiorana, Plaintiff-Appellant, v. OWENS-CORNING FIBERGLAS CORP., et al., Defendants-Appellees.

No. 989, Docket 91-9079.

United States Court of Appeals Second Circuit.

Argued Feb. 10, 1992.

Decided April 28, 1992.

Steven J. Phillips, New York City (Levy Phillips & Konigsberg, Alani Golanski, of counsel), for plaintiff-appellant.

Thomas J. Callahan, Boston, Mass. (Tucker, Biegel & Speziali, James D. Silbert, New York City, Hinckley & Silbert, of counsel), for defendant-appellee Owens-Corning Fiberglas Corp.

Before: FEINBERG and MINER, Circuit Judges, PATTERSON, District Judge. ^*

FEINBERG, Circuit Judge:

Plaintiff Arlene Maiorana, individually and as administratrix of the Estate of John Maiorana, appeals from four orders of the United States District Court for the Southern District of New York, Robert W. Sweet, J., (1) dismissing as time-barred plaintiff's wrongful death claim against defendants-appellees Owens-Corning Fiberglas Corp. (OCF) and United States Mineral Products Company (USMP), 756 F.Supp. 794 (S.D.N.Y.1991), (2) granting summary judgment for appellees OCF and USMP and other defendants on plaintiff's loss of services and consortium claim, 758 F.Supp. 199 (S.D.N.Y.1991), (3) denying her motion for reargument, 774 F.Supp. 113 (S.D.N.Y.1991), and (4) denying her further motion for reconsideration, 774 F.Supp. 116 (S.D.N.Y.1991). For the reasons set forth below, we reverse and remand for further proceedings.

I. Background

Plaintiff is the widow of John Maiorana, who died of colon cancer on June 16, 1983 at the age of forty. Plaintiff claims that her husband's cancer was caused by his exposure to asbestos and asbestos-containing products during his career as a sheetmetal worker, which began in 1969. Defendants-appellees are manufacturers of various products containing asbestos to which Mr. Maiorana was allegedly exposed. Plaintiff filed her complaint on July 28, 1987.

II. Discussion

A. Wrongful Death Claim

Judge Sweet held that plaintiff's wrongful death claim against appellees OCF and USMP was time-barred. 756 F.Supp. at 797-98. Prior to 1986, New York law provided that a cause of action for exposure to a toxic substance accrued at the date of last exposure to the substance and not at some later date, such as when the damage was discovered. See Monte v. National Gypsum Co., 921 F.2d 405, 407 (2d Cir.1990). The applicable statute of limitations was three years from the date of last exposure. Id. If the exposed victim died prior to the end of the three-year limitations period, New York's Estates, Powers and Trusts Law (EPTL) § 5-4.1 granted survivors two years in which to bring a wrongful death action. But if the victim died after the three-year limitations period, a wrongful death claim was barred even if the harm from the exposure was not discovered until after the limitations period.

In 1986, New York changed this harsh doctrine and amended its toxic tort law to allow the revival of claims that had been barred because of a lack of timely awareness of the injury. New York Toxic Tort Reform Act of 1986, Ch. 682, § 4, reprinted after CPLR § 214-c (McKinney 1990). This revival statute provided a one-year period during which plaintiffs could bring claims for exposure to toxic substances that were previously time-barred. Id. However, the statute contained an exception that excluded "any action for damages for a wrongful act, neglect or default causing a decedent's death which was not barred as of the date of the decedent's death and could have been brought pursuant to [EPTL] Section 5-4.1," referred to above. Id. Plaintiff-appellant contends that her wrongful death claim was revived by the revival statute. Judge Sweet found that plaintiff's claim was excluded from the revival statute because the claim was not barred as of the date of her husband's death and could have been brought pursuant to EPTL § 5-4.1.

In responding to interrogatories, plaintiff stated that her husband had been employed as a sheetmetal worker during the years 1969-76 and 1981-83 and had worked in the presence of asbestos and asbestos dust in those jobs. Accordingly, Mr. Maiorana was last exposed to asbestos in 1983, which was within three years of his death in June of that year. Under EPTL § 5-4.1, plaintiff had two years from the date of her husband's death to bring a wrongful death claim. Thus, defendants-appellees argue, as of the date of her husband's death plaintiff-appellant's claim was not time-barred and she could have timely brought a claim under EPTL § 5-4.1. Appellees contend that Judge Sweet was therefore correct in ruling that plaintiff's claim fit within the exception to the revival statute.

Following appellees' motion to dismiss plaintiff's wrongful death claim as time-barred, plaintiff sought to amend her interrogatory answers. She deleted asbestos from the list of materials that her husband had worked with during the years 1981-83 and stated that she had no knowledge of any toxic substances with which her husband had worked during those years. Judge Sweet rejected plaintiff's attempt to amend the original interrogatory answers. 756 F.Supp. at 797. He noted that the amendment was made almost two and a half years after the original answers were signed and that plaintiff failed to explain how she no longer had evidence that she previously claimed was in her possession. Id. In addition, plaintiff's motion papers failed to contradict appellees' assertion that there was no genuine issue as to whether plaintiff's claim could have been brought within two years of her husband's death. Therefore, Judge Sweet found that pursuant to Civil Rule 3(g) of the Local Rules for the Southern District of New York, appellees' assertion was deemed to be admitted. 756 F.Supp. at 797.

Plaintiff-appellant contends in this court that her original interrogatory answers should not be treated as an admission and that even an admission can be amended. This may be so, but nevertheless we hold that Judge Sweet did not abuse his discretion in refusing to allow appellant to amend her interrogatory answers. Judge Sweet properly took into account appellant's two and a half-year delay in amending the answer, her failure to amend the answer until after appellees' motion to dismiss, and her failure to explain how she no longer had information previously in her possession. Cf. Kulzer v. Pittsburgh-Corning Corp., 942 F.2d 122, 128 (2d Cir.1991) (three-year delay and no explanation for amendment of pleading), cert. denied, --- U.S. ----, 112 S.Ct. 1482, 117 L.Ed.2d 624 (1992). As we stated in Kulzer, which cited Judge Sweet's opinion approvingly, "plaintiff's current stance has the ring of expediency to it." 942 F.2d at 128.

Nevertheless, appellant argues, as she did in the district court, that even if her husband was exposed during the years 1981-83 to asbestos manufactured by some companies, he was not exposed during that time to asbestos manufactured by these particular defendants-appellees. Accordingly, she claims that her husband's last exposure to appellees' asbestos was more than three years prior to his death. Therefore, she contends, at the time of her husband's death she may have had a viable claim against other asbestos manufacturers but her claim against appellees would have been time-barred. Her claims against appellees would thus fit within the revival statute.

Judge Sweet, relying on Monte, held that plaintiff's wrongful death action against appellees accrued only at the last date of her husband's exposure to asbestos. The judge stated that "[a]s this occurred within three years of his death, her wrongful death claim against all of the defendants would have been viable at that time, and thus her entire wrongful death claim is excluded from the scope of the Revival Statute." 756 F.Supp. at 798. Thus, the judge rejected appellant's claim solely on his legal ruling that the wrongful death action had a single accrual date for all defendants, regardless of whether the date of last exposure to an asbestos product differed for each asbestos manufacturer. Judge Sweet did not reach the question whether a genuine issue of material fact exists concerning Mr. Maiorana's exposure to asbestos and asbestos dust from the products of either or both the appellees within three years of his death.

On appeal to this court, research has disclosed a New York appellate decision--Catherwood v. American Sterilizer Co., 139 Misc.2d 901, 532 N.Y.S.2d 216, 219 (Sup.Ct.1988), aff'd, 148 A.D.2d 985, 540 N.Y.S.2d 218 (App.Div. 4th Dep't), appeal dismissed, 74 N.Y.2d 791, 545 N.Y.S.2d 106, 543 N.E.2d 749 (1989)--that may throw doubt on the accuracy of the district court's characterization of New York law. Catherwood involved the substance ethylene oxide (EtO) rather than asbestos. In that decision, the Appellate Division, Fourth Department, squarely rejected the proposition accepted by Judge Sweet--"that the accrual of the tort causes of action asserted against [the moving defendants] is the date of last exposure to any EtO." 532 N.Y.S.2d at 219 (emphasis added). The court in Catherwood, after noting that EtO was not a substance included in the revival statute, refused to "impute" to a defendant the responsibility for the exposure of a plaintiff to EtO that continued after the date of the last possible exposure to the particular defendant's EtO. Id. The court held that in the absence of a "nexus" between the moving defendants in Catherwood and "other manufacturer and distributor defendants," it would apply the "general rule" that "the claim against each defendant is to be examined separately to determine if that claim is time-barred...." Id. Accordingly, "[s]ince plaintiffs' last possible exposure to [defendants'] EtO occurred more than three years prior to commencement of...