Simmons v. Pacor, Inc., JOHNS-MANVILLE
| Decision Date | 04 April 1996 |
| Docket Number | JOHNS-MANVILLE |
| Citation | 674 A.2d 232,543 Pa. 664 |
| Parties | , 64 USLW 2660, Prod.Liab.Rep. (CCH) P 14,600 James R. and Eleanor SIMMONS, H/W, Appellants, v. PACOR, INC., Eagle-Picher Industries, Inc., Keene Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Celotex, Inc., Owens-Illinois Inc., Fibreboard Corporation, GAF Corporation, Forty-Eight Insulation, Inc., and Raymark Industries, Inc., Appellees. Theodore and Mary MURRAY, H/W, Appellants, v. PHILADELPHIA ASBESTOS CORPORATION, GAF Corporation, Raymark Industries, Southern Textile Company, Garlock, Inc., Fibreboard Corporation, Eagle-Picher Industries, Inc., Keene Corporation, Celotex Corporation, J.P. Stevens Co., Inc., and Owens-Illinois, Inc., Appellees. William and Paula GIFFEAR, H/W, Appellants, v.CORPORATION, Pacor, Inc., Eagle-Picher Industries, Inc., Unarco Industries, Inc., Keene Corporation, Raybestos Manhattan, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock Inc., Owens-Illinois Inc., Fibreboard Corporation, and GAF Corporation, Appellees. |
| Court | Pennsylvania Supreme Court |
Steven J. Cooperstein, Philadelphia, for James & Eleanor Simmons, Theodore & Mary Murray, William & Paul Giffear.
Howell K. Rosenberg, Philadelphia, Theodore Goldberg, Pittsburgh, Albert J. Slap, Philadelphia, for amicus curiae Pa. Trial Lawyers.
Nathan Schachtman, Kimberly Waldron, Philadelphia, for Owens-Illinois.
Robert H. Riley, pro hoc vice for Owens-Illinois.
Andrew J. Trevelise, Michael T. Scott, Richard T. Wentley and Robin Sheldon, Philadelphia, for Fibreboard Corp.
Thomas M. Goutman, Philadelphia, for amicus curiae Pa. Defense Institute.
Robert B. Lawler, Philadelphia, for amicus curiae Georgia Pacific.
Kathy K. Condo, Pittsburgh, for amicus curiae Pittsburgh Corning.
Richard A. Ejak, David G. Klaber, Pittsburgh, for amicus curiae Lincoln Electric Company.
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.
This consolidated appeal raises issues involving whether asymptomatic pleural thickening caused by occupational exposure to asbestos may give rise to a cause of action. The facts underlying each case are set forth below.
James Simmons was exposed to asbestos while serving in the United States Navy between 1943 and 1963. He was also exposed during 1963 through 1974, while he was employed as an electronics technician in the Philadelphia Naval Shipyard. In 1982, when Simmons was fifty-six years old, an abnormality on a chest x-ray revealed pleural thickening. Simmons saw a specialist, who informed him that his asbestos exposure increased his risk of contracting cancer. This information caused Simmons to feel very upset and afraid. His fear of contracting cancer affected his work and had an adverse impact on family relationships.
At trial, Dr. Stanley Altschuler, a board-certified internist and pulmonary specialist, testified that Simmons suffers from pleural thickening as a result of his asbestos exposure. He found that the disease had progressed since the time it was initially visible on x-ray. Dr. Altschuler also testified that Simmons is five times more likely to contract cancer, and three hundred times more likely to get mesothelioma, than he would be had he never been occupationally exposed to asbestos. 1 Dr. Altschuler opined that Simmons should receive an examination and x-ray each year to help ensure early detection of cancer. He also stated that Simmons's pleural thickening did not affect his lung function or cause any impairment. Dr. Allan Freedman, testifying for the defense, agreed that Simmons had asbestos-caused pleural thickening, but opined that the scarring had not increased since first observed on x-ray.
Theodore Murray labored as a carpenter, joiner, pipecoverer and insulator for the New York Shipbuilding Company in Camden, New Jersey, between 1952 and 1967. He had considerable asbestos exposure in all areas of his employment.
In 1982, when he was fifty-seven years old, Murray learned that he had asbestos-related disease and that his asbestos exposure increased his risk of contracting cancer. This knowledge has left him fearful of getting cancer. He exhibits signs of nervousness and often has nightmares. He becomes particularly fearful when going to a hospital and when hearing about others who have cancer.
Dr. Altschuler testified at trial that Murray suffers from pleural thickening and that the disease has progressed since the initial x-ray was taken. He also stated that Murray is subject to the same increased risks of contracting cancer and mesothelioma as Simmons. Likewise, his condition should be monitored yearly.
Dr. Theodore Rodman, a defense medical expert, testified that Murray suffers from pleural thickening but disagreed with the proposition that the pleural thickening has increased over the years. Dr. Rodman also testified that there was no impairment in lung function which could be attributed to the pleural changes and that the changes were of no clinical significance.
William Giffear served in the United States Navy from 1964 through 1968, during which time he was exposed to asbestos while working as a boilerman. He inhaled dust created by asbestos-containing products such as pipe covering, pipe cloth and cement on a daily basis. Upon discharge from the Navy, Giffear worked as a plumber and was again exposed to asbestos-containing products. In 1980, he began work as a pipefitter in the Philadelphia Naval Shipyard. He was still employed by the shipyard at the time of trial.
Following an annual medical checkup, Giffear was informed that he had pleural disease. He was also told that the disease was irreversible and could lead to cancer. Giffear was thirty-four years old at the time of the diagnosis and became extremely upset and concerned about caring for his young children.
At trial, Giffear's medical expert, Dr. William Fineman, testified that Giffear's x-rays revealed pleural thickening with plaque formation, but that Giffear did not sustain any lung impairment as a result of his alleged exposure to asbestos-containing products. Fineman also opined that Giffear did not exhibit any signs of mesothelioma or lung cancer. He did, however, set out the cancer risks which Giffear's asbestos exposure subjected him to. The risks were identical to those faced by Murray and Simmons. Giffear testified that he suffers anxiety due to his increased risk of lung cancer and mesothelioma. He further stated that his fear made him irritable, affected his sleep and affected his relationship with his wife.
The defense medical expert, Dr. Alan Pope, agreed that Giffear had pleural thickening with no physical impairment. Dr. Pope found that although there may have been some minimal progression of plaque formation between the first x-ray films taken of Giffear in 1980 and 1983, there had been no progression in his pleural plaques since that time.
Each Appellant filed suit in the Philadelphia County Common Pleas Court to recover damages for injuries caused by occupational exposure to asbestos. Specifically, Appellants sought recovery for (1) risk and fear of cancer, (2) mental anguish, and (3) loss of life's pleasures. At the time of trial, the remaining defendants were Owens Illinois, Inc., Fibreboard Corporation, and Keene Corporation. 2 The reverse bifurcated trial in the Giffear action commenced on March 13, 1991. It was jointly tried with another case which was not the subject of any appeal. The Simmons and Murray cases were consolidated prior to trial and a reverse bifurcated trial commenced on June 9, 1991.
Following the Giffear trial, the jury returned a verdict of $300,000.00 for Giffear. The liability portion of the trial was then conducted by stipulation between the parties before the court sitting without a jury. Keene Corporation and Fibreboard Corporation were each held liable for 1/8 of the verdict. The defendants moved for post-trial relief, arguing, inter alia, that the court erred in failing to direct a verdict that asymptomatic non-impairing pleural thickening is a non-compensable injury. Giffear petitioned the court for delay damages.
On February 4, 1992, the trial court granted the defendants' motion for judgment notwithstanding the verdict (j.n.o.v.) and denied Giffear's petition for delay damages. The trial court found that there was no medical testimony linking any symptoms, illness or impairment of any sort to the pleural thickening suffered by Giffear. It concluded that asymptomatic pleural thickening is not a cognizable cause of action.
Following the damages phase of the Murray/Simmons trial, the jury awarded each plaintiff $350,000.00. Pursuant to the parties' stipulation to the court as to apportionment of liability, Owens-Illinois, Inc., was found to be liable for 1/9 of the Simmons verdict and 1/7 of the Murray verdict. Fibreboard was found to be liable for 1/6 of the verdict.
On July 23, 1992, the trial court denied defendants' request for j.n.o.v. and, alternatively, a remittitur. It found that pleural thickening is a legal injury, objectively determined by a chest x-ray. It noted that both plaintiffs alleged and proved permanent, untreatable pleural thickening and increased risks of mesothelioma and lung cancer. The court also granted plaintiffs' request for delay damages.
All of the judgments were timely appealed to the Superior Court. In Giffear, the entry of j.n.o.v. was reversed by a panel of the Superior Court. Upon defendants' petition, the Superior Court granted reargument en banc. On September 16, 1993, the Superior Court affirmed the grant of j.n.o.v., holding that a diagnosis of pleural thickening unaccompanied by discernible physical symptoms or functional impairment does not give rise to an action for damages. 3
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