Kaiser v. Armstrong World Industries, Inc.

• Decision Date: 14 December 1987
• Docket Number: Civ. No. 86-1316 (JAF).
• Citation: 678 F. Supp. 29
• Parties: Sol KAISER, et al., Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC., etc., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

678 F. Supp. 29

Sol KAISER, et al., Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC., etc., et al., Defendants.

Civ. No. 86-1316 (JAF).

United States District Court, D. Puerto Rico.

December 14, 1987.

María H. Sandoval, Nachman & Fernandez-Sein, San Juan, P.R., for plaintiffs.

Porter & Owens, Illinois; Edward A. Godoy, Feldstein Gelpi Hernandez & Gotay, San Juan, P.R., Burns & Levinson, Boston, Mass., for defendants Armstrong, Fibreboard, Celotex, Eagle-Picher, and GAF.

Ramón H. Vargas, Vargas & Rive, San Juan, P.R., for defendant Foster Wheeler.

Carlos E. Jiménez, Souffront & Souffront, San Juan, P.R., Neely & Player, Atlanta, Ga., for defendant Raymark Industries.

Ricardo L. Rodriguez, San Juan, P.R., for defendant Harlock.

OPINION AND ORDER

FUSTE, District Judge.

Sol Kaiser, a former boiler technician with the United States Navy, filed this suit claiming that the defendants are liable in negligence and for breach of the warranty of fitness for his asbestos-induced condition. Diversity jurisdiction is invoked pursuant to 28 U.S.C. Section 1332. Much discovery has already been conducted in this case. We see from the file that much more is contemplated for the future.

Before the court are dispositive motions, including a motion for summary judgment based on lack of product identification, lack of personal jurisdiction, and statute of limitations, as well as the plaintiffs' opposition thereto. This court holds that the suit is barred by the applicable statute of limitations and, therefore, does not pass on the other dispositive motions.

I. GENERAL FACTUAL BACKGROUND

Sol Kaiser, 57 years of age, served in the United States Navy from 1948 to 1952, as a boiler technician on two destroyers, first with the U.S.S. Eugene Allen Green, and then with the U.S.S. Damato. As a boiler technician, he was assigned to repair pipes that were insulated and covered by asbestos cloth. In order to repair the pipes he would have to cut, rip or tear the cloth lining from the pipes. His description of his exposure to the asbestos is as follows:

While working on boilers and steam pipes I had to rip asbestos packing from the pipes to get at leaks in closed areas. I was not only breathing asbestos dust, I actually picked asbestos out of my nostrils, and in fact I drank coffee with asbestos dust in it, aboard ship we all did, not knowing its danger.

Plaintiffs' Exhibit C, V.A. Appeal Statement.

After leaving the Navy, Mr. Kaiser moved to New York, where he held a variety of menial jobs from 1952 to 1959. In 1959, Kaiser moved to Puerto Rico, and worked for the Puerto Rico Stamping Company until 1960, and the Hospital Supply Company until 1961. From 1961 to 1971 he was a salesman with the Dubois Chemical Company. Beginning in 1971 he worked as a salesman at the Eutectic-Castolin Company, where he eventually became General Sales Manager. He left that job in 1980 on a 100% Social Security disability pension due to respiratory problems.

II. MEDICAL FACTUAL BACKGROUND

Sol Kaiser's history of respiratory problems can be related as follows. In 1960, he suffered an upper respiratory infection. He was later hospitalized for 23 days in Puerto Rico due to what appeared to be acute bronchitis and bronchial asthma. In 1980, he filed a Social Security claim alleging a 100% disability claim because of "respiratory problems." The claim was granted and a $1,050 monthly pension was allowed. The record shows that between 1980 and 1982, Mr. Kaiser sought emergency room treatment and/or was hospitalized nine times because of pulmonary problems, usually bronchial asthma or severe respiratory attacks. Dr. Córdova, a physician with the Hospital del Maestro, San Juan, Puerto Rico, recommended that Mr. Kaiser move to Arizona because the climate would improve his pulmonary condition.

Kaiser and his family moved to Arizona in 1982. There he sought treatment at various medical facilities of the University of Arizona. When he was first admitted to the University Medical Center on December 8, 1982, he informed his physicians of his history of asbestos exposure while in the Navy, as well as his asthma attacks. A one-page medical record from the Health Sciences Center entitled "Problem List," dated December 8, 1982, lists two respiratory diseases, namely, "Asthma" and "Asbestos pleural disease." During treatment at the Pulmonary Clinic in March of 1983, he asked his doctors whether "asbestos has anything to do with his asthma." His smoking and asbestos exposure were also explored. Furthermore, progress notes from the Pulmonary Clinic dated August 17, 1983, indicate that the physicians there believed that Mr. Kaiser suffered from "Asthma/Asbestosis." On April 13, 1983, in a consultation meeting with a physician at the Health Sciences Center, Mr. Kaiser related his "smoking & asbestos exposure." Sol Kaiser consulted with the same physician on May 19, 1983 for "Asthma and asbestos exposure." In a November 21, 1983, consultation with a different doctor at the Health Sciences Center, Mr. Kaiser's medical history is characterized as "Old asbestos pleural disease."

Doctor Benjamin Burrows, Mr. Kaiser's principal physician at the University of Arizona since 1982, prepared a report on April 15, 1985, in which he diagnosed Kaiser as having asbestos-related pleural calcifications. Since Kaiser planned to return to Puerto Rico, Dr. Burrows suggested that he explore his asbestos-related condition with physicians here. The plaintiff received Dr. Burrow's report before he returned to Puerto Rico in June, 1985.

III. LAW GOVERNING

The statute of limitations governing an action filed under article 1802 of the Civil Code of Puerto Rico, 31 L.P.R.A. sec. 5141, is "one year ... from the time the aggrieved person had knowledge" of the injury. 31 L.P.R.A. sec. 5298 (1930).¹ The definition of knowledge is crucial to resolution of this issue. Knowledge is both "notice of the injury" and "notice of the person who caused it." Colón Prieto v. Géigel, 115 D.P.R. 232, 247, Official Translation at 16 (1984). However, the plaintiff need not "know the exact name of the tortfeasor" to satisfy the requirement of knowledge of the person who caused the injury. Santiago Hodge v. Parke Davis & Co., 833 F.2d 6, 7 (1st Cir.1987). Similarly, the plaintiff need not "know the exact culprit of the injury ...; it is enough for the plaintiff to know the cause of the injury." Ramírez Pomales v. Becton Dickinson & Co., S.A., 649 F. Supp 913 (D.P.R.1986).

This suit was filed on August 15, 1986. The plaintiffs argue that Mr. Kaiser did not have the requisite knowledge until sometime after the summer of 1985. To justify the summer of 1985 starting date for statute of limitations' purposes, plaintiffs, in their Statement of Material Facts, point out three facts, taken from Kaiser's deposition, which arguably create a genuine issue of material fact: that Mr. Kaiser was first told that he had asbestosis at the end of 1985 or 1986; that he did not know the cause of his health problems until after August 15, 1985; and that he did not know that he had asbestosis until after August 15, 1985.

Plaintiffs essentially argue that after August 15, 1985, Kaiser's brother-in-law gave him a June 1985 article published in the New Yorker Magazine on the subject of asbestosis, and told him to consult a doctor. After reading the article, he became alarmed at the references to similarly-situated Navy boiler technicians who also suffered from asbestosis. He later consulted attorneys, who filed the present lawsuit on his, his wife's, and his children's behalf. However, after considering the above-referenced facts, the court finds that the plaintiffs' statement does not create a genuine issue of material fact which may impede the entry of summary judgment.

A summation of the medical records from the University of Arizona conclusively establishes that, beginning in 1982, Mr. Kaiser discussed with at least three different medical facilities his asbestos exposure and its possible effects on his respiratory problems. Be it remembered that Mr. Kaiser has a history of respiratory problems that began in 1960. He admits and alleges that his only exposure to asbestos was between 1948-1952, while in the Navy. After having recurring bronchial asthma and severe respiratory attacks that left him 100% disabled, he moved to...