Steinhardt v. Johns-Manville Corp., JOHNS-MANVILLE

• Citation: 54 N.Y.2d 1008,446 N.Y.S.2d 244,430 N.E.2d 1297
• Decision Date: 29 October 1981
• Docket Number: JOHNS-MANVILLE
• Parties: , 430 N.E.2d 1297 In the Matter of Jeanne STEINHARDT, as Executrix of James McKee, Jr., Deceased, Appellant, v.CORPORATION et al., Respondents. Stanley ROSENBERG et al., Appellants, v.SALES CORPORATION et al., Respondents. Jerome BRENNER et al., Appellants, v.SALES CORPORATION et al., Respondents. Dorothy COHEN, as Administratrix of the Estate of Emanuel Cohen, Deceased, Appellant, v.PRODUCTS CORPORATION et al., Respondents. Rose FAILLA, as Administratrix of the Estate of Vincent Failla, Deceased, Appellant, v.PRODUCTS CORPORATION et al., Respondents. Joseph FERRARESE et al., Appellants, v.SALES CORPORATION et al., Respondents. Rose WEINBERG, as Administratrix of the Estate of Albert Weinberg, Deceased, Appellant, v.PRODUCTS CORPORATION et al., Respondents.
• Court: New York Court of Appeals

Page 244

446 N.Y.S.2d 244

54 N.Y.2d 1008, 430 N.E.2d 1297

In the Matter of Jeanne STEINHARDT, as Executrix of James

McKee, Jr., Deceased, Appellant, v. JOHNS-MANVILLE CORPORATION et al., Respondents.

Stanley ROSENBERG et al., Appellants, v. JOHNS-MANVILLE SALES CORPORATION et al., Respondents.

Jerome BRENNER et al., Appellants, v. JOHNS-MANVILLE SALES CORPORATION et al., Respondents.

Dorothy COHEN, as Administratrix of the Estate of Emanuel

Cohen, Deceased, Appellant, v. JOHNS-MANVILLE PRODUCTS CORPORATION et al., Respondents.

Rose FAILLA, as Administratrix of the Estate of Vincent

Failla, Deceased, Appellant, v. JOHNS-MANVILLE PRODUCTS CORPORATION et al., Respondents.

Joseph FERRARESE et al., Appellants, v. JOHNS-MANVILLE SALES CORPORATION et al., Respondents.

Rose WEINBERG, as Administratrix of the Estate of Albert

Weinberg, Deceased, Appellant, v. JOHNS-MANVILLE PRODUCTS CORPORATION et al., Respondents.

Court of Appeals of New York.

Oct. 29, 1981.

Frank S. Kedzielawa, Carl A. Green and James W. Kirkpatrick, Buffalo, for appellant Steinhardt

Norman J. Landau, New York City, for appellants Rosenberg, Brenner, Cohen, Failla, Ferrarese and Weinberg.

Lawrence T. D'Aloise, White Plains, and Daniel T. Roach, Buffalo, for Johns-Manville Corp. and others, respondents.

Thomas F. Segalla, Buffalo, for Fibreboard Paper Products Corp., respondent.

Alexander C. Cordes and Paul F. Jones, Buffalo, for GAF Corp. and others, respondents.

Robert M. Kiebala for Eagle-Picher Industries, Inc., respondent.

Gordon D. Tresch, Buffalo, for Owens-Corning Fiberglass Corp., respondent.

Sheldon Hurwitz, Buffalo, for Armstrong Cork Co., respondent.

Franklin N. Meyer for Raybestos-Manhattan, Inc., respondent.

Michael Majewski and Joseph D. Ahearn, New York City, for Southern Asbestos Co. and another, respondents.

James J. Lysaght, for Colt Industries, Inc., respondent.

OPINION OF THE COURT MEMORANDUM.

The orders of the Appellate Division, Steinhardt v. Johns-Manville Corp., 78 A.D.2d 577, 432 N.Y.S.2d 422 modifying, McKee v. Johns-Manville Corp., 94 Misc.2d 327, 404 N.Y.S.2d 814, Rosenberg v. Johns-Manville Corp., 78 A.D.2d 784, 434 N.Y.S.2d 845, Brenner v. Johns-Manville Corp., 78 A.D.2d 784, 434 N.Y.S.2d 845, Cohen v. Johns-Manville Corp., 78 A.D.2d 784, 434 N.Y.S.2d 845, Failla v. Johns-Manville Corp., 78 A.D.2d 784, 434 N.Y.S.2d 845, Ferrarese v. Johns-Manville Corp., 78 A.D.2d 784, 434 N.Y.S.2d 845, Weinberg v. Johns-Manville Corp., 78 A.D.2d 784, 434 N.Y.S.2d 845 should be affirmed, with costs.

Plaintiffs in these actions, asserting injuries caused by the inhalation of asbestos particles, each commenced his action more than four years after their or their decedents' last employment-related exposure to asbestos. In Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824, where the plaintiff alleged that the inhalation of dust while in the defendant's employ caused him to contract the disease known as pneumoconiosis, this court held that the statutory period of limitations began to run when the plaintiff inhaled the foreign substance. This principle was later reaffirmed in Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, cert. den. 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032, involving a compound inserted into the plaintiffs' sinuses for the purpose of making them more perceptible in x-ray examination. Accordingly, if this rule is still controlling, each of the causes of action brought by plaintiffs is barred by the Statute of Limitations. Plaintiffs now urge, however, that the Statutes of Limitations applicable to their cases should not run from the date of the last exposure to the invading substance, but rather from the date on which the asbestos-related disease was or could have been discovered. We are unable to adopt this proposed standard, and we reaffirm the principle announced in Schmidt and followed in Schwartz. Only recently, in Thornton v. Roosevelt Hosp., 47 N.Y.2d 780, 417 N.Y.S.2d 920, 391 N.E.2d 1002, where it was alleged that a thorium dioxide substance manufactured by the defendant and injected into the deceased plaintiff resulted in the onset of cancer, we held that "the cause of action accrued at the time of invasion of decedent's body, and not at the time" the condition became apparent. There, we noted that further extension of the limited discovery provision contained within the CPLR (214-a) was a matter best reserved for the Legislature, and not for the courts. ¹ We believe it to be inappropriate and injudicious to intrude into an area best suited for legislative scrutiny. We have considered plaintiffs' other contentions and find them to be without merit.

FUCHSBERG, Judge (dissenting).

The orders appealed from in these cases should be reversed and the motions for summary judgment denied.

Once again we are confronted with a determination that plaintiffs who, alleging tortious wrongdoing as a result of which they were injured, are held to have been barred by the Statute of Limitations before they learned or could have learned that they had sustained the injuries of which they complain.

Though to state this proposition would appear to be to refute it, the majority, under what it takes to be the restraint of three cases, Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824, Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142 and, most recently, Thornton v. Roosevelt Hosp., 47 N.Y.2d 780, 417 N.Y.S.2d 920, 391 N.E.2d 1002, a decision in which I filed a dissent, in effect upholds it.

In my view, the cases cited are too confusing and contradictory to support such a result. For example, in Schmidt, though the court held that dust which produced a disease of the lungs set off the running of the statute when it was ingested rather than when the injury came to the fore, the court, inexplicably, also proclaimed (270 N.Y. at p. 300, 200 N.E. 824) that "There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury " (emphasis added). Further, in the relatively short time which has elapsed since Thornton was decided, the Legislature already has issued policy pronouncements that cut across the legal philosophy they bespoke. ² In such circumstances the vitality of Judge-made law depends in no small measure upon a readiness to have the judiciary, and not the Legislature, as Thornton and the majority memorandum in this case suggest, make its own corrections.

The underlying principle is hornbook law. As Dean Prosser put it, "the statute of limitations does not begin to run against a...