Potts v. Celotex Corp.

• Decision Date: 10 September 1990
• Docket Number: No. 89-63-I,89-63-I
• Citation: 796 S.W.2d 678
• Court: Tennessee Supreme Court
• Parties: Prod.Liab.Rep. (CCH) P 12,582 Elizabeth Ann POTTS, individually and as next of kin of Harold Lamar Potts, Deceased, Plaintiff-Petitioner, v. The CELOTEX CORPORATION, et al., Defendants-Respondents.

Page 678

796 S.W.2d 678

Prod.Liab.Rep. (CCH) P 12,582

Elizabeth Ann POTTS, individually and as next of kin of

Harold Lamar Potts, Deceased, Plaintiff-Petitioner, v. The CELOTEX CORPORATION, et al., Defendants-Respondents.

No. 89-63-I.

Supreme Court of Tennessee,

at Nashville.

Sept. 10, 1990.

W. Mitchell Cramer, Michael Y. Rowland, and Robert B. Williamson (of counsel), for plaintiff-petitioner.

W. Kyle Carpenter, Michael B. Kinnard, Cynthia K. Mancebo, Harry P. Ogden, Dennis L. Babb and G. Kevin Hardin, Knoxville, for defendants-respondents.

OPINION

DAUGHTREY, Justice.

This products liability case is before us on certification from the United States Court of Appeals for the Sixth Circuit, pursuant to Tennessee Supreme Court Rule 23. The matter was appealed to the Sixth Circuit following the federal district court's decision in Potts v. Celotex, 703 F.Supp. 672 (E.D.Tenn.1988).

We are asked, in essence, to decide whether an earlier manifestation of an asbestos-related disease (asbestosis) triggered the running of Tennessee's one-year statute of limitations on a separate, distinct, and later-manifested disease (mesothelioma) that was also caused by exposure to asbestos. ¹ We hold that a cause of action for a separate and distinct asbestos-related disease does not accrue, under TCA § 28-3-104, until that disease becomes manifest.

I. BACKGROUND

A. The Facts

A full recitation of the facts, largely undisputed in this case, appears in the district court's opinion at 703 F.Supp. 672-73. Briefly summarized, they are as follows:

The petitioner's husband, Harold Lamar Potts, was employed as an insulation worker from 1953 until early 1987. During this time he was exposed to asbestos. On February 5, 1975, he was tentatively diagnosed as having the asbestos-related disease of pulmonary asbestosis. He experienced no symptoms for more than a decade, but then began to suffer pain in his neck, shoulder, and lower back, for which he visited a physician on January 29, 1987. At that time, the diagnosis of asbestosis was confirmed. In March, 1987, while receiving medical care for asbestosis, Mr. Potts was diagnosed as having malignant mesothelioma, another asbestos-related disease. On July 16, 1987, Mr. Potts died as a result of mesothelioma. On February 9, 1988, the petitioner filed her complaint in this diversity action seeking damages arising from her husband's mesothelioma. No recovery is sought for any damages arising from Mr. Potts's asbestosis.

According to the medical evidence in this case, asbestosis and mesothelioma are two independent, distinct and separate diseases, related only by the fact that each is caused by exposure to asbestos fibers. Asbestosis is a pneumoconiosis, ² causing a fibrous condition or scarring of the lungs. Mesothelioma is an extremely virulent cancer of the epithelium, the thin membrane that lines the lungs, chest and abdominal cavities. A person may have asbestosis without ever contracting mesothelioma and, conversely, may contract mesothelioma without ever having had asbestosis. In the words of Dr. Bedwell, one of petitioner's medical experts, "one disease does not arise out of the other." A study in the New England Journal of Medicine estimates that only 15% of asbestosis sufferers later contract pleural mesothelioma and only 12% contract peritoneal mesothelioma. Selikoff, Churg & Hammond, Relation between Exposure to Asbestos and Mesothelioma, 272 New Eng.J.Med. 560, 562 (1965).

B. The District Court's Ruling

The Federal district court granted summary judgment in favor of the respondents (collectively, "Celotex"). They are manufacturers, distributors, and sellers of certain asbestos insulation products with which Mr. Potts came into contact during his employment. The district court properly applied Tennessee's "discovery doctrine," which prevents the running of the statute of limitations in a products liability case until a latent injury is discovered, or when in the exercise of reasonable care and diligence, it should have been discovered. But, citing the Tennessee rule that "[a]ll damages which can by any possibility arise from a single tort form an indivisible cause of action," National Cordova Corp. v. City of Memphis, 214 Tenn. 371, 380 S.W.2d 793 (1964), the district court also held that the statute of limitations was triggered in this case in February 1975, when Mr. Potts's asbestosis was first diagnosed. The logical result, if the "indivisible cause of action" rule applies, is that any action to recover damages for the mesothelioma was barred by the statute of limitations more than 10 years before the condition that killed Mr. Potts was discovered--indeed, a decade before it ever came into existence. We conclude that the "indivisible cause of action" rule, or what the parties refer to as the "single injury rule," does not apply to these facts.

II. DISCUSSION

A. The Statute

Tennessee's applicable statute of limitations, TCA § 28-3-104 provides in pertinent part:

(a) Actions ... for injuries to the person ... shall be commenced within one (1) year after cause of action accrued.

(b) For the purpose of this section, insofar as products liability cases are concerned, the cause of action for injury to the person shall accrue on the date of the personal injury, not the date of the negligence or the sale of a product, and in said products liability cases no person shall be deprived of his right to maintain his cause of action until one (1) year from the date of his injury, and under no circumstances shall his cause of action be barred before he sustains an injury.

B. The Issue

The primary question presented by this case is when the one-year statute of limitations contained in TCA § 28-3-104 began to run. If, as the district court held, the statute began to run upon the diagnosis of Mr. Potts's asbestosis, the action is barred. If it began to run upon the diagnosis of mesothelioma, the action was timely. The problems here arise from the conflict between the theories underlying the "discovery rule," adopted by this Court for determining when a cause of action accrues and the statute of limitations begins to run, and those supporting the so-called "single injury rule," derived from the principle that one tortious act gives rise to but one indivisible claim for damages. ³

C. Tennessee Law

Under the "discovery rule" applicable in tort actions, including but not restricted to products liability actions predicated on negligence, strict liability or misrepresentation, the cause of action accrues and the statute of limitations begins to run when the injury occurs or is discovered, or when in the exercise of reasonable care and diligence, it should have been discovered. McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 491 (Tenn.1975); see also Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974). The discovery rule applies only in cases where the plaintiff does not discover and reasonably could not be expected to discover that he had a right of action. Furthermore, the statute is tolled only during the period when the plaintiff had no knowledge at all that the wrong had occurred and, as a reasonable person, was not put on inquiry. Hoffman v. Hospital Affiliates, Inc., 652 S.W.2d 341, 344 (Tenn.1983).

The rule is grounded in "reason, logic and fundamental fairness." McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d at 489. First of all, the rule responds to the unfairness of requiring a plaintiff to file suit prior to his knowledge of an injury, "requiring that he sue to vindicate a non-existent wrong, at a time when injury is unknown and unknowable." Teeters v. Currey, 518 S.W.2d at 515. Second, a cause of action in tort does not exist until a judicial remedy is available to the plaintiff. Before a judicial remedy exists, two elements must coalesce: (1) a breach of some legally recognized duty owed by the defendant to the plaintiff and (2) some legally cognizable damage caused to the plaintiff by the breach of duty. Foster v. Harris, 633 S.W.2d 304, 305 (Tenn.1982).

Tennessee law also requires that, to recover for future effects of an injury, the future effects must be shown to be reasonably certain and not a mere likelihood or possibility and that, before a plaintiff may recover for potential injuries, there must be a reasonable degree of medical certainty that the plaintiff will develop a disease in the future as a result of an injury. See Maryland Casualty Co. v. Young, 211 Tenn. 1, 6, 362 S.W.2d 241, 243 (1962); Williams v. Daniels, 48 Tenn.App. 112, 121-122, 344 S.W.2d 555, 559 (1960). In this case, had the petitioner's decedent brought a timely action for damages based upon his asbestosis, in light of the proof that only a small percentage of those persons who suffer from asbestosis will contract some form of mesothelioma, it is unlikely that there could have been recovery for damages caused by any future cancer or increased risk of cancer. See, e.g., Herber v. Johns-Manville Corp., 785 F.2d 79 (3d Cir.1986); Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517 (Fla.Dist.Ct.App.1985); Devlin v. Johns-Manville Corp., 202 N.J. Super. 556, 495 A.2d 495 (1985). See also Daniels v. Combustion Engineering, Inc., 583 S.W.2d 768, 770 (Tenn.App.1978), in which the court held that where, in the absence of presently existing cancer, a plaintiff suffers only from asbestosis, evidence of any association between asbestosis and cancer is inadmissible as irrelevant and serves only to prejudice the jury. Mesothelioma and asbestosis are distinct and separate diseases, unrelated one to the other, and mesothelioma is in no way a reasonably certain consequence of asbestosis. The Court of Appeals therefore held that no judicial remedy was available to the petitioner and her husband until the mesothelioma manifested itself, i.e., was discovered or should have been discovered by them.

Celotex argues, however, that even though Tennessee has adopted the discovery rule, this does not allow a...