Pauley v. Combustion Engineering, Inc.

• Decision Date: 29 October 1981
• Docket Number: Civ. A. No. 77-3277.
• Citation: 528 F. Supp. 759
• Court: U.S. District Court — Southern District of West Virginia
• Parties: John W. PAULEY and Oreda F. Pauley, Plaintiffs, v. COMBUSTION ENGINEERING, INC., a Delaware corporation; Johns-Manville Sales Corporation, a Delaware corporation, et al., Defendants.

528 F. Supp. 759

John W. PAULEY and Oreda F. Pauley, Plaintiffs, v. COMBUSTION ENGINEERING, INC., a Delaware corporation; Johns-Manville Sales Corporation, a Delaware corporation, et al., Defendants.

Civ. A. No. 77-3277.

United States District Court, S. D. West Virginia, Huntington Division.

October 29, 1981.

Menis F. Ketchum, Lawrence J. Tweel, Huntington, W. Va., Ronald L. Motley, Barnwell, S. C., for plaintiffs.

John F. Wood, Jr. and Roy D. Baker, Jr., Wood, Grimm & Delp, Huntington, W. Va., for Combustion Engineering, Inc., Owens-Corning Fiberglas Corp., Pittsburgh Corning Corp., Rock Wool Manufacturing Co., Certain-Teed Products Corp. and The Fiberglas Corp.

Robert L. Elkins and W. Henry Jernigan, Jr., Jackson, Kelly, Holt & O'Farrell, Charleston, W. Va., for Johns-Manville Sales Corp. and Johns-Manville Products Corp.

Fred Adkins, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, W. Va., for Bell Asbestos Mines, Ltd. and Atlas Asbestos Co.

R. Kemp Morton, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, W. Va., for Nicolet Industries.

George S. Sharp, Kay, Casto & Chaney, Charleston, W. Va., for H. K. Porter, Inc. and Standard Asbestos Manufacturing and Insulating Co.

Lee O. Fitch, Miller, Searl & Fitch, Portsmouth, Ohio, for Keene Corp. and Keene Building Products Corp.

R. G. McNeer, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, W. Va., for Eagle-Picher Industries.

Robert M. Levy, Huntington, W. Va., for The Celotex Corp.

Norman K. Fenstermaker and James D. Lamp, Jenkins, Fenstermaker, Krieger, Kayes & Farrell, Huntington, W. Va., for Unarco Industries, Inc.

George G. Guthrie and Charles S. Woody, Spilman, Thomas, Battle & Klostermeyer, Charleston, W. Va., for GAF Corp.

Edward W. Eardley, Steptoe & Johnson, Charleston, W. Va., for Fibreboard Corp.

W. E. Mohler, Charleston, W. Va., for Owens-Illinois, Inc.

Fred L. Davis, Jr., Davis, Davis, Hall & Clovis, Parkersburg, W. Va., for Armstrong Cork Co.

Robert H. Sack, Benjamin, Faulkner, Tepe & Sack, Cincinnati, Ohio, for Forty-Eight Insulation, Inc.

MEMORANDUM ORDER

STAKER, District Judge.

Pending before the court is the defendants' Motion to Dismiss based upon the grounds that the complaint filed herein is barred by the applicable statute of limitations. The plaintiff filed this action on November 3, 1977, seeking damages for injuries allegedly sustained as a result of his exposure to defendants' products containing asbestos.

Plaintiff worked as an insulator for Union Carbide Corporation from 1946 until June, 1976. Sometime prior to September 1973, he became concerned about his health and his difficulty in breathing and made arrangements to be examined by Dr. Buff on or about September 26, 1973. As a result of the examination, plaintiff filed a workmen's compensation claim. Plaintiff states in his deposition that he was informed by Dr. Buff that he was afflicted with "asbestos in the lungs;" and, according to plaintiff's affidavit, he was informed by the doctor that he had "asbestos on the lungs" but that the doctor called the disease "occupational pneumoconiosis and/or silicosis." Plaintiff further states in his affidavit that several physicians who examined him subsequent to Dr. Buff's examination did not mention "asbestos on the lungs" but did inform him that he was suffering from emphysema. In Dr. Buff's report of October, 1973, filed with the West Virginia Workmen's Compensation Fund, he diagnosed plaintiff as having pneumoconiosis and/or silicosis.

The Workmen's Compensation Commissioner's Order of April 11, 1977, granted compensation based upon occupational pneumoconiosis, but the Workmen's Compensation Appeal Board vacated and set aside the Commissioner's finding and held that plaintiff was not suffering from occupational pneumoconiosis. In August, 1978, the West Virginia Supreme Court of Appeals reversed the Appeal Board and reaffirmed the Workmen's Compensation Commissioner's findings of occupational pneumoconiosis.

Defendants contend, and the court so holds, that plaintiff's cause of action is based on personal injury, thereby making the two-year statute of limitations applicable in this case. Pursuant to West Virginia Code § 55-2-12, a claim for personal injury must be brought within two years after the action accrues. Defendants further contend that in an action for personal injury resulting from exposure to asbestos products, the action accrues either when the wrong is inflicted on the plaintiff, which is the time of last exposure to asbestos containing products, Scott v. Rinehart & Dennis Co., 116 W.Va. 319, 180 S.E. 276 (1935), or when plaintiff knew, or by the exercise of reasonable diligence should have known, of his asbestos-related injury and its probable cause (hereinafter referred to as the "discovery rule"). Harrison v. Seltzer, 268 S.E.2d 312 (W.Va.1980); Hill v. Clarke, 241 S.E.2d 572 (W.Va.1978); Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965).

Plaintiff contends that the discovery rule, as adopted in Morgan and its progeny, is applicable but that the action does not accrue until the plaintiff knew, or by reasonable diligence should have known, of his asbestos-related injury and that the injury was a result of the improper conduct on the part of the defendants. Plaintiff terms this interpretation of the rule the "causal relation" discovery rule.

Defendants' contention that the time of last exposure is the time of accrual is based upon the decision in Scott, supra, wherein the plaintiff brought an action against his former employer for damages which allegedly resulted from his inhalation of dust particles while employed by the defendant in the construction of a tunnel from April, 1930, until September, 1931. However, he did not ascertain that he had contracted silicosis while constructing the tunnel until three months before bringing his action in October, 1933. The West Virginia Supreme Court of Appeals held that the cause of action arose when the wrong was inflicted, and subsequent development of the disease resulting from the inflicted injury did not give rise to a cause of action, and in the absence of some act of concealment by the wrongdoer, the mere ignorance of the injured party of the actionable wrong would not suspend the statute. The court further held that plaintiff's action was barred by the statute of limitations since he did not bring his cause of action within one year of the time the injury was inflicted.

Scott has not been overruled by the West Virginia court nor has the West Virginia Legislature acted to change or abrogate the rule applied therein. Defendants contend that pursuant to the Erie Doctrine, this court must follow the West Virginia law as set forth in Scott. See Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This court, however, is not immutably bound under Erie to follow state court decisions if it appears that the highest state court would not rely on such precedent. C. R. Fedrick, Inc. v. Borg-Warner Corp., 552 F.2d 852 (9th Cir. 1977); Hood v. Dun & Bradstreet, Inc., 486 F.2d 25 (5th Cir. 1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1580, 39 L.Ed.2d 882 (1974). Calvert v. Katy Taxi, Inc., 413 F.2d 841 (2d Cir. 1969); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967). As stated by the court in Hood, supra:

This court must determine whether there are compelling reasons why we should deviate from these early Georgia decisions. We recognize that federal courts are not immutably bound under Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), to follow state court decisions where it appears that a state court considering the identical issue would not rely on such precedent. The federal court, like the state court, can consider all information and data that the highest court of the state could consider in determining whether to strictly adhere to a prior ruling.

486 F.2d at 31 (footnotes omitted).

The Court in Calvert, supra, in addressing this issue, stated:

Due to the continuing development of, and the ongoing changes in, today's concepts of legal liability, we, in determining the state law that we are to apply, cannot permit ourselves to be confined by state court decisional approaches if we have sound grounds to believe that the highest state court would in a case like ours adopt a different approach than the approaches in prior cases.

413 F.2d at 846.

It is, therefore, necessary for this court to determine if there are sound reasons to believe that the West Virginia Supreme Court of Appeals, at the present time, would follow the 1935 decision in Scott. In 1920, the court first adopted what is termed the "discovery rule" in Petrelli v. West Virginia-Pittsburgh Coal Co., 86 W.Va. 607, 104 S.E. 103 (1920), wherein a cause of action concerning subterranean coal mining was held not to begin running until the time when the land owner discovered the trespass, or the time when discovery was reasonably possible. The wrongful act of the defendant was the alleged wrongful removal of coal by extending its subterranean mining operations into adjoining property belonging to the plaintiff. The court reasoned that the subterranean trespass was peculiarly susceptible to concealment to the injured party, and the trespasser's failure to disclose the trespass would prevent the injured party from bringing his action within the statutory period.

The court extended the use of the discovery rule in 1965 when it applied the rule to a medical malpractice action. Morgan, supra. Plaintiff sued the hospital for medical malpractice after discovering ten years later that a sponge had been left in plaintiff's abdomen during surgery at the defendant hospital. The court found the plaintiff's situation to be analogous and strikingly similar to the plaintiff's situation in Petrelli wherein the court found the wrongful act to be easily concealed from the plaintiff. As stated in Morga...