• Pennsylvania Supreme Court Allows Certain Asbestos Plaintiffs Two Apparent Bites at the Apple against New Defendants
  • December 21, 2009 | Author: Craig T. Liljestrand
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • Abrams v. Pneumo Abex Corp., Pa., No. 17 EAP 2008, 10/21/09

    The Pennsylvania Supreme Court recently held that asbestos plaintiffs who had recovered from non-malignant conditions prior to Pennsylvania’s adoption of the “two-disease rule” in 1992 may now seek damages from new defendants if they later develop an asbestos-related cancer. Abrams v. Pneumo Abex Corp., Pa., No. 17 EAP 2008, (Oct. 21, 2009). The high court further ruled that damages for lung cancer are not identical to risk of cancer claims, and that cancer and non-cancer claims give rise to separate causes of action.

    The two plaintiffs were diagnosed with non-malignant asbestos conditions in April 1984 and January 1985, respectively. Both timely filed suit against numerous defendants, but not defendant John Crane, Inc. (Crane), seeking damages for their conditions and for increased risk and fear of cancer. That suit was resolved by settlement shortly before trial.

    In December 2002, plaintiffs were diagnosed with asbestos-related lung cancer. They timely sued various defendants, including Crane. Crane moved for summary judgment arguing that plaintiffs’ claims were time-barred by the prior suit and the applicable statute of limitations period under Pennsylvania’s previous “one-disease rule.” The trial court agreed and granted Crane summary judgment.

    The Pennsylvania intermediate appellate court affirmed the trial court’s granting of summary judgment, ruling that plaintiffs’ risk of cancer claims in the 1980s “were premised on the assertion that [plaintiffs] would contract cancer in the future as a result of occupational exposure to asbestos and thus pertained to the same malignant asbestos-related disease for which [plaintiffs] now seek to recover damages.” Abrams v. Pneumo Abex Corp., 939 A.2d 388, 394 (Pa. Super. 2007) (en banc). Further, and according to the court, “the law required a plaintiff to file suit, within the applicable statute of limitations, against all potential asbestos defendants upon being diagnosed with an asbestos-related disease.”

    In 1992, in deciding a case involving the issue of the recovery for injuries resulting from asbestos exposure, a superior court held that, “Pennsylvania must join a majority of jurisdictions which have adopted a ‘separate disease’ rule in asbestos exposure actions”-- the “two disease rule”-- and that “a plaintiff’s discovery of a nonmalignant, asbestos related lung pathology, whether or not accompanied by clinical symptoms of impaired pulmonary function, does not trigger the statute of limitations with respect to an action for a later, separately diagnosed, disease of lung cancer.” Marinari v. Asbestos Corp. Ltd., 612 A.2d 1021, 1022 (Pa. Super. 1992).

    In the case at hand, the Pennsylvania high court ruled that plaintiffs’ prior settlement in 1993 with defendants other than Crane “does not preclude their current actions against Crane, and the critical factor in determining whether [plaintiffs] can maintain an action against Crane is whether [plaintiffs’] action against Crane for damages for lung cancer is timely under the applicable statute of limitations.” The Court went on to state, “[Plaintiffs’] damages claims for lung cancer are clearly separate and distinct from any claims for risk or fear of cancer that may have existed in the 1980s. Accordingly, the statute of limitations for [plaintiffs’] claims against Crane for lung cancer did not begin to run until December 2002.” Finally, in rejecting Crane’s assertion that allowing plaintiffs to proceed with their action for lung cancer would violate Crane’s right to repose, the Court clarified that “[n]o statutory right of repose exists with respect to asbestos cases. Indeed, had the legislature intended that asbestos exposure cases be subject to a statute of repose, it could have expressly indicated so in its enactment of 42 Pa.C.S.A. sec. 5524(8).” As such, the high court reversed the appellate court order that affirmed the trial court’s granting of summary judgment to Crane, and remanded the matter for further proceedings consistent with the opinion.

    It should be noted that two Pennsylvania Supreme Court justices dissented, reasoning that plaintiffs’ claims against Crane should have been time-barred. According to the dissent, the statute of limitations had long expired before plaintiffs’ lung cancer suit was filed, because plaintiffs could have sued Crane for the prior asbestos exposure that formed the basis of the 1980s litigation. “Accordingly, when [plaintiffs] failed to name Crane as a defendant in their initial lawsuits, Crane became entitled to the repose afforded by the statute of limitations.”