Matter of Johns-Manville Asbestosis Cases

• Decision Date: 31 March 1981
• Docket Number: No. 77 C 3534.,77 C 3534.
• Citation: 511 F. Supp. 1235
• Parties: In the Matter of JOHNS-MANVILLE ASBESTOSIS CASES.
• Court: U.S. District Court — Northern District of Illinois

511 F. Supp. 1235

In the Matter of JOHNS-MANVILLE ASBESTOSIS CASES.

No. 77 C 3534.

United States District Court, N. D. Illinois, E. D.

March 31, 1981.

John C. Bulger, Cooney & Stenn, Chicago, Ill., for plaintiffs.

Hugh R. McCombs, Jr., William F. Murphy, Isham, Lincoln & Beale, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Defendants Advocate Mines, Ltd., Bell Asbestos Mines, Ltd., Asbestos Corporation, Ltd. and Cassiar Asbestos Corporation Limited ("defendants") have filed a joint motion to dismiss certain of the claims filed by plaintiffs in various actions (collectively the "lawsuits") consolidated for pretrial purposes.¹ Plaintiffs are present or past employees (or representatives or relatives of former employees) of Johns-Manville Sales Corp. ("Johns-Manville") who seek damages for respiratory diseases and other ailments ("asbestosis") allegedly caused by their inhaling asbestos fiber while employed at Johns-Manville. Defendant companies allegedly supplied raw asbestos to Johns-Manville, which in turn produced various asbestos insulation products.

Specifically defendants seek dismissal of all claims:

(1) brought under the Illinois Wrongful Death Act, Ill.Rev.Stat. ch. 70, §§ 1, 2 (the "Wrongful Death Act"), more than two years after the death of any plaintiff's decedent;

(2) based on the theory of breach of implied warranty;

(3) seeking punitive damages under the Wrongful Death Act or the Illinois Survival Act, Ill.Rev.Stat. ch. 110½, § 27-6 (the "Survival Act");

(4) seeking recovery for loss of consortium under the Wrongful Death Act; and

(5) based on allegations of conspiracy.

For the reasons stated in this memorandum opinion and order, defendants' motion is granted with respect to issues 2, 3 and 4 (as listed above) and denied with respect to issues 1 and 5.

1. Two-Year Limitation on Claims Under the Wrongful Death Act

Wrongful Death Act Section 2(c) states that actions under that Act "shall be commenced within two years after the death of such person whose representative or relative has filed suit. Defendants state that each of William Gray, Robert Kirby and Gary Somers, decedents by reason of whose death plaintiff Ocasek ("Ocasek") has filed her Wrongful Death Act claim, died more than two years before the lawsuits were filed, thereby barring such claims. Ocasek urges that the "discovery rule," which tolls the running of a "limitations period" until a plaintiff knows or should have known of the fact and cause of the injury for which he or she seeks relief,² should be applied to the Wrongful Death Act. Because the lawsuits were assertedly filed within two years of the dates on which Ocasek knew (or should have known) of the nature and cause of the alleged injuries, she concludes that the Wrongful Death Act claims are actionable.

All substantive questions in these diversity actions must be decided in accordance with Illinois law under the familiar doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Unfortunately that only states rather than resolving the issue, for there is no definitive Illinois decision as to the applicability of the discovery rule to the Wrongful Death Act.

There is a long history of Illinois decisions standing for the proposition that the two-year period embodied in Section 2(c) is "a condition of liability, and operates as a limitation of the liability itself, and not the remedy alone." Wilson v. Tromly, 404 Ill. 307, 310, 89 N.E.2d 22 (1949). They are grounded on the fact that the wrongful death action is considered "wholly statutory" — a cause of action created by the General Assembly where none existed at common law. Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424, 102 N.E. 819 (1913). So the time period specified in Section 2(c) is considered "a condition attached to the right to sue and ... not merely a statute of limitations." Country Mutual Insurance Co. v. National Bank, 109 Ill.App.2d 133, 139, 248 N.E.2d 299 (4th Dist. 1969). Illinois decisions mandate that Section 2(c) be strictly construed. Wilson v. Tromly; Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, 15 N.E.2d 838 (1938).

Although the Illinois Supreme Court has never specifically addressed the question whether the discovery rule applies to the Wrongful Death Act, defendants urge that this Court must conclude it does not. They say that application of the discovery rule would be at odds with the Illinois Supreme Court directive that Section 2(c) be strictly construed. To the same effect, they argue that because the two-year period is not a statute of limitations but rather a condition of liability, cases in which the discovery rule has been extended to other types of actions are inapposite.

Ocasek cites three principal cases in support of her contention that the discovery rule applies to the Wrongful Death Act:

First, in Wilbon v. D.F. Bast Co., 73 Ill.2d 58, 22 Ill.Dec. 394, 382 N.E.2d 784 (1978), the Illinois Supreme Court held that Section 2(c)'s two-year period does not begin to run against a minor until he or she reaches the age of majority.³ Although Wilbon did not deal with the discovery rule, it is significant in the present context in at least three respects:

(1) Wilbon (73 Ill.2d at 62, 22 Ill.Dec. 394, 382 N.E.2d 784) criticized the "accepted" concept that wrongful death was unknown at common law and therefore that the statute alone must be construed as creating the right to recovery.

(2) Wilbon (73 Ill.2d at 62-63, 22 Ill. Dec. 394, 382 N.E.2d 784) cited with approval, and quoted extensively from, Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222 (1972), in which the Massachusetts Supreme Judicial Court held that the Massachusetts Wrongful Death Act provision limiting the period for bringing actions should "be construed in the same manner as the limitations contained in ... the general statute of limitations...."

(3) For the first time the Illinois Supreme Court allowed an action to be maintained under the Wrongful Death Act even though filed more than two years after the decedent's death — a marked deviation from the "strict construction" mandate previously discussed in this opinion.

Second, there are two recent Illinois Appellate Court decisions that have effectively applied a discovery rule to actions under the Wrongful Death Act. In Praznik v. Sport Aero, Inc., 42 Ill.App.3d 330, 355 N.E.2d 686 (1st Dist. 1976), decedent died in a plane crash, the wreckage from which was not discovered until several years after the crash. There the Section 2(c) two-year time clock was held not to begin running until the death had been conclusively confirmed. In the medical malpractice suit of Fure v. Sherman Hospital, 64 Ill.App.3d 259, 21 Ill. Dec. 50, 380 N.E.2d 1376 (2d Dist. 1978), the Court held that a widow's claim under the Wrongful Death Act was timely even though she filed the action more than two years after the decedent's death.

Both the Praznik and Fure courts expressly applied "the discovery rule" to wrongful death claims. Defendants seek to distinguish Praznik because the discovery in that case was of the fact and not the cause of death. As to Fure they contend that the Court applied a separate medical malpractice limitations statute, Ill.Rev.Stat. ch. 83, § 22.1, concluding that it superseded Section 2(c) in malpractice cases.⁴ But neither of those contentions really vitiates the force of Praznik and Fure for our purposes.

Praznik embodies not only a specific decision but an approach that would give broad application to the discovery rule (42 Ill. App.3d at 336, 355 N.E.2d 686):

In determining if the discovery rule is appropriate in a given case, we must look at the difficulty of proof created by the passing of time as balanced against the hardship to the plaintiff who neither knows nor should have known the existence of a right to sue.

Fure left unclear whether the Appellate Court was applying the discovery rule to Section 2(c) or to the malpractice limitations statute. However, that Court's remarks are still instructive (64 Ill.App.3d at 268-70, 21 Ill.Dec. 50, 380 N.E.2d 1376):

The question posed by the case at hand is whether the discovery rule can, in certain circumstances, apply to a wrongful death action where the date of death is known and does not have to be discovered, but the negligence or tort behind that death is not discovered until sometime after the date of death. (The "certain instances" of course being those in which the failure to learn of the negligent aspect of the death was reasonably justifiable under the circumstances).... In our opinion there should be no barrier to the application of the "discovery" rule based on the ultimate tragedy of death where the circumstances of the death would have permitted an extension of the time limitation for the mere wounding or injury of the person and we hold that the fact of death does not per se foreclose the use of the discovery doctrine.

Finally the Illinois Supreme Court has very recently (after the motions were fully briefed) decided Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 52 Ill.Dec. 1, 421 N.E.2d 864, 49 U.S.L.W. 2568 (Ill. S.Ct. Feb. 21, 1981). Although Nolan dealt with a claim sounding in strict liability, its language in applying the discovery rule to asbestosis litigation lends support to Ocasek's argument:

We are of the opinion that in a case such as this, where the injury occurred over a long period of time and not as a result of one sudden traumatic event, the preferred rule is that the cause of action accrues when the plaintiff knows or should know of an injury and that the injury was probably caused by the wrongful acts of another.

Were this Court to espouse defendants' position, we would have the anomaly of an action being barred before the cause of action even arose! Mr. Bumble ("The law is a ass, a idiot") would have prevailed once again.

This Court has elsewhere expressed the view that under Erie and its...