Manzi v. H.K. Porter Co.

• Decision Date: 13 March 1991
• Docket Number: No. 413,413
• Citation: 402 Pa.Super. 595,587 A.2d 778
• Parties: , Prod.Liab.Rep. (CCH) P 12,762 James MANZI, Appellant v. H.K. PORTER COMPANY, Celotex Corporation. Phila. 1990.
• Court: Pennsylvania Superior Court

Page 778

587 A.2d 778

402 Pa.Super. 595, Prod.Liab.Rep. (CCH) P 12,762

James MANZI, Appellant v. H.K. PORTER COMPANY, Celotex Corporation.

No. 413 Phila. 1990.

Superior Court of Pennsylvania.

Argued Oct. 30, 1990.

Filed March 13, 1991.

Mitchell Cohen, Philadelphia, for appellant.

Vincent D. Duke, Philadelphia, for Porter, appellee.

Bruce H. Bikin, Philadelphia, for Celotex, appellee.

Before McEWEN, MONTEMURO and JOHNSON, JJ.

JOHNSON, Judge:

In this action for damages due to asbestos exposure, we are asked to decide whether it is proper for the court to have instructed the jury that, should they determine that the plaintiff's asbestos-related pleural thickening is not a compensable injury, then the plaintiff may bring a subsequent action if he develops a compensable asbestos-caused injury in the future. Finding this instruction to be consistent with the law of this Commonwealth, we affirm.

On February 23, 1982 appellant James Manzi brought suit against several manufacturers of asbestos. At the time this appeal was filed, H.K. Porter and Celotex were the only remaining defendants. Following a hearing in which Celotex did not oppose severance, this Court, by order of November 19, 1990 severed Celotex from this appeal in response to the automatic stay provisions of the Bankruptcy Code. In his complaint Manzi alleged that, as a result of his diagnosis for pleural and pulmonary asbestosis on November 17, 1981 he suffered anxiety, hysteria and fear that the condition would develop into cancer. He did not allege physical injury from disease. As compensation he asked for damages in excess of $15,000.00.

The trial court bifurcated the proceedings, trying the issues of medical causation and damages first. After the close of the evidence, the jury was provided with the following specific interrogatory: "Is the plaintiff's pleural thickening or pleural plaques an asbestos related condition or disease allowing him to receive compensation resulting from exposure to asbestos?" To explain this interrogatory, the court gave the following instruction:

Keep in mind, however, in determining whether or not you are going to award any sum of money under this category [damages for fear of and risk of cancer] that this is the plaintiff's only time to come into court; that is to say, if he should get cancer in the future, he can't come back. However, if you should find that his pleural thickening or pleural plaques are not compensable by answering question one no, then if he gets cancer in the future, he can come back.

N.T., October 20, 1989 at 62-63 (emphasis supplied).

The jury answered "no" to the interrogatory. On January 4, 1990, in the order denying post-trial motions, the court included a proviso that, should Manzi develop an asbestos-related disease or condition other than the pleural thickening he already had, then "the jury's verdict ... shall not act as a bar against maintaining a subsequent action." Judgment was entered on January 17, 1990. This timely appeal follows.

On appeal Manzi argues that the one-disease-one-injury rule triggers the running of the statute of limitations upon discovery of any condition, whether compensable or not, caused by a tortious act, and that the rule coordinately precludes a subsequent action for damages from a different disease caused by the same tortious act. Therefore, he argues, the above-highlighted portion of the jury instruction is contrary to Pennsylvania law. After careful review of the authority relied upon by Manzi, we conclude that, to the contrary, it is not the law in Pennsylvania that any condition caused by tortious conduct, whether compensable or not, is an injury as a matter of law precluding subsequent action, should a jury find no compensable damage. Whether a condition such as pleural thickening is an injury entitling the plaintiff to damages is a factual question for the jury. What follows is an analysis of the relevant cases.

The one-disease-one-injury rule evolved from the "discovery" principle first articulated in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). In Ayers, a surgeon left a sponge in the patient-plaintiff, who did not discover the negligent act until he became ill as a result nine years later. The two-year statute of limitations for a personal injury action requires that the suit be brought within two years from the time when the "injury was done." Interpreting this language, the court held that the statute is triggered when the injury is discovered, not when the causative act took place:

The injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.

Ayers v. Morgan, 397 Pa. at 290, 154 A.2d at 792 (emphasis supplied).

The court's rationale was that "one may not be charged with dreaming away his right to recover if even the most watchful vigilance could not apprise him of the damage being done him." Ayers v. Morgan, 397 Pa. at 291, 154 A.2d at 793. Fairness was the court's underlying concern. See Prince v. Trustees of the University of Pennsylvania, 282 F.Supp. 832, 840 (E.D.Pa.1968). It was assumed in Ayers that once a condition becomes ascertainable, there are damages. The issue of whether there was an injury was not in the case; the definition of "injury" was not at issue. The court pointed out that "this is not a case where the act of negligence was known to the plaintiff but the extent of the damages which ensued therefrom was not ascertained until after the expiration of the statute of limitations." Ayers, 397 Pa. at 290, 154 A.2d at 792. Once any damages are known, the statute begins to run; nothing in the opinion suggests that any condition caused by the tort, whether or not there are damages, starts the statutory period.

In Shadle v. Pearce, 287 Pa.Super. 436, 440, 430 A.2d 683, 685 (1981), we modified the Ayers rule to reach a fair result, this time in fairness to the defendant. In Shadle, treatment by a dentist for an abscessed tooth occurred in 1972, which caused bacterial endocarditis resulting in an aortic valve transplant in 1973, but the injury for which the patient sought recovery was for an aortic aneurysm occurring in 1976. We held that the action was barred by the statute of limitations:

If we were to hold otherwise under the facts presented here, we would create a concept in the law which would permit an injured plaintiff to have a new limitations period commence for the initiation of an action for personal injuries as of the date when each complication or change in condition arose, despite the fact that no "new" negligence has occurred which is attributable to the defendant. Such a concept would be contrary to the legislative intent inherent in the creation of periods of limitations in our law.

Shadle v. Pearce, 287 Pa.Super. at 441, 430 A.2d at 685-686 (emphasis added). In Shadle there was no dispute that the plaintiff had a compensable injury in 1973 when he underwent the valve transplant. Again, as in Ayers, the definition of injury was not at issue. Taken together, Ayers and Shadle established a common-sense rule based upon the fact that certain injuries do not conveniently manifest themselves within the statutory period. At the same time, a plaintiff, once aware that damage has been sustained, may not renew an attack upon the defendant at each stage of a progressing illness.

In cases concerning asbestos-induced conditions, a significant factor contemplated by neither the Ayers nor the Shadle courts comes into play--the "physically objective and ascertainable condition" may not yet be a disease-causing compensable injury at the time it is discovered. Asbestos-related pleural thickening is the formation of calcified tissue on the membranes surrounding the lungs. Doe v. Johns-Manville Corp., 324 Pa.Super. 469, 472, 471 A.2d 1252, 1253 (1984). As in the present case, pleural thickening can be present and not cause ill health. Consequently, it has never been defined as a compensable injury as a matter of law in Pennsylvania. Howell v. Celotex et al., 904 F.2d 3 (3rd Cir.1990). In Howell, the Court of Appeals for the Third Circuit, applying Pennsylvania law, concluded that, in the face of medical disagreement, whether pleural thickening is a compensable injury in any given case is a factual question. Howell v. Celotex, 904 F.2d at 5. This is the precise factual question that was before the jury in the present case.

Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) applied the Ayers/ Shadle discovery rule to the asbestos "creeping disease" situation. The plaintiff was permanently disabled more than two years before he filed his complaint. Thus, there was no factual question of whether he sustained compensable injury. Rather, he argued that the limitations period should have begun to run only after he discovered which asbestos manufacturers were responsible. We held that difficulty in ascertaining the identity of the defendants should not be the statute-triggering event, that the statute begins to run in creeping disease cases when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party's conduct. Cathcart, 324 Pa.Super. at 136-137, 471 A.2d at 500 (emphasis supplied). Significantly, we recognized that there may be an issue regarding the definition of "injury," and that "injury" had not been defined by the courts. We expressly declined to address this issue and to provide the definition, as the question was not before us. Cathcart, 324 Pa.Super. at 136-137 n. 10, 471 A.2d at 500 n. 10.

In Doe v. Johns-Manville Corp., 324 Pa.Super. 469, 472, 471 A.2d 1252, 1253 (1984) (en banc), the plaintiff filed his action after he developed pleural thickening, as in the present case. We were asked to decide whether the trial court properly denied a pre-trial motion for a declaratory judgment that the statute of limitations would not begin to run...