Opinion
Nos. 1182 EDA 2005, 1185 EDA 2005.
Filed: June 9, 2006.
Appeal from the Order dated March 8, 2005, in the Court of Common Pleas of Philadelphia County, Civil, February Term, 2003, Nos. 3458, 3459.
BEFORE: HUDOCK, BOWES, JJ., and McEWEN, P.J.E.
¶ 1 These consolidated asbestos litigation appeals have been taken from the orders dismissing appellee/defendant, John Crane, Inc., from both actions based on the statute of limitations. We reverse and remand.
¶ 2 The facts underlying each of the two cases are similar. In the mid-1980's, both appellants, Kenneth Abrams and John Shaw, were diagnosed with nonmalignant asbestos-related diseases. Within two years of those diagnoses, both Abrams and Shaw filed asbestos actions against numerous defendants seeking damages for injuries resulting from their occupational exposure to asbestos. Both Complaints included claims for increased risk and fear of developing cancer. Neither Complaint named appellee, John Crane, Inc., as a defendant. Both actions were settled out of court.
Eleanor Abrams and Marilyn Shaw, the spouses of Kenneth Abrams and John Shaw, also sought damages for loss of consortium.
Abrams' Complaint, filed in 1986, sought relief for "a reasonable and traumatic fear of an increased risk of . . . cancer to plaintiff, resulting from exposure, directly and indirectly, to the asbestos products of the defendant[s]." Abrams Complaint, filed March 20, 1986, at ¶ 47. Similarly, Shaw's Complaint, filed in 1985, sought relief for "the risk of mesothelioma and other cancers, . . . and severe anxiety possibly rising to a traumatic neurosis or cancerophobia or both due to knowledge that he is likely or could possibly contract cancer because of his exposure to asbestos at his work place." Shaw Complaint, filed September 25, 1985, at ¶ 28.
¶ 3 In December of 2002, both Abrams and Shaw were diagnosed with lung cancer caused by asbestos exposure. They each filed a new action in early 2003, naming a multitude of defendants, including appellee. In each case, appellee asserted the affirmative defense of the statute of limitations and filed motions for summary judgment, arguing that appellants' claims should have been brought in the prior asbestos actions. The distinguished Judge Norman Ackerman granted relief sought by the motions for summary judgment by dismissing appellee as a defendant in both actions. Once the claims against the remaining defendants were resolved by settlement, the order of Judge Ackerman became final under Pa.R.A.P. 341. This appeal followed.
Both Abrams and Shaw have died since commencement of these actions, and their widows, who also sought consortium damages in the 2003 actions, have been substituted, in their respective capacities as executrices, as parties.
¶ 4 The sole question on appeal challenges the trial court's grant of summary judgment based on the expiration of the statute of limitations. Our review of an order granting summary judgment is well-established:
[A] trial court's order granting summary judgment will not be reversed unless it is established that the court committed an error of law or clearly abused its discretion. Murphy v. Diogenes A. Saaverdra, M.D., P.C., 560 Pa. 423, 726 A.2d 92, 94 (2000). Summary judgment may be entered only in those cases where the record clearly demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Id.
Gatling v. Eaton Corp., 807 A.2d 283, 286 (Pa.Super. 2002).
¶ 5 The trial court, in the present cases, concluded that appellants were precluded from bringing claims for cancer in 2003 because they had both sought damages for cancer-related claims in their prior actions. Accordingly, the court found that because both appellants had the opportunity in their prior actions to recover damages for increased risk and fear of cancer, and both failed at that time to name appellee as a defendant, their present actions were barred by the two-year statute of limitations. Appellants argue, however, that pursuant to the "two disease rule" pronounced by Marinari v. Asbestos Corp., Ltd., 612 A.2d 1021 (Pa.Super. 1992) ( en banc), they were permitted to bring actions for lung cancer caused by asbestos exposure within two years of their respective diagnoses. We agree with the position advanced by appellants and conclude that appellants' present asbestos actions were timely filed.
¶ 6 This Court, in the en banc decision of our distinguished former colleague, the late Judge Wieand, in Marinari v. Asbestos Corp., Ltd., supra, adopted the "two disease rule" for asbestos exposure actions in Pennsylvania, holding that:
[a p]laintiff'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.
Id. at 1022. The Marinari holding was a landmark decision since Pennsylvania had, prior to that time, followed the "one disease rule," which had required all claims, for present or future damages relating to a plaintiff's occupational exposure, to have been brought within two years of the initial asbestos-related diagnosis.
Since Marinari, we have further refined the rule by abolishing all claims for increased risk and fear of cancer in asbestos actions when cancer is not present. Giffear v. Johns-Manville Corp., 632 A.2d 880 (Pa.Super. 1993) ( en banc), aff'd sub nom., Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996). See: Cleveland v. Johns-Manville Corp., 547 Pa. 402, 690 A.2d 1146 (1997) (refusing to invalidate a jury instruction during a 1989 trial which permitted the jury to award damages for increased risk and fear of cancer; applying Giffear/Simmons prospectively only).
¶ 7 Under Marinari, it is the diagnosis of lung cancer, even years after a diagnosis of nonmalignant asbestos disease, that triggers the running of the two year statute of limitations in asbestos actions. The retroactive application of Marinari is here at issue since appellants' prior actions, including "cancer-related" claims, were brought before the 1992 Marinari decision. Although neither this Court nor the Pennsylvania Supreme Court has definitively determined whether Marinari should be applied retroactively, the clear implication in the subsequent decisions of this Court is that it should, and we here so hold.
It merits mention that the defendants in Marinari did not seek review of the decision by the Pennsylvania Supreme Court.
¶ 8 In Giffear v. Johns-Manville Corp., 632 A.2d 880 (Pa.Super. 1993) ( en banc), aff'd sub nom., Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996), the plaintiff was diagnosed with pleural disease in 1982, and his subsequent asbestos action asserted claims for asymptomatic pleural thickening, as well as increased risk and fear of cancer. Although he was awarded $300,000 in damages by a jury, the trial court granted the defendants judgment notwithstanding the verdict, concluding that the plaintiff's injuries were not compensable. The specific issue we there addressed was whether asymptomatic pleural thickening and increased risk and fear of cancer, without a diagnosis of cancer, were compensable injuries. We concluded that they were not. However, in discussing the plaintiff's increased risk and fear of cancer claim we stated:
To allow recovery under these circumstances based on his fear alone would fly in the face of our recent adoption of the separate disease rule. Again, we remind Mr. Giffear that, should he develop cancer, he would then have a cause of action for a compensable injury and could bring a lawsuit at that time.
Giffear, supra, 632 A.2d at 889 (emphasis added). While it is certainly true that this excerpt meets the definition of dicta, it is nonetheless quite instructive since the obvious implication is that any future action based on a cancer diagnosis would not have been affected by the plaintiff's previous claim for increased risk and fear of cancer.
¶ 9 Similarly, in McCauley v. Owens-Corning Fiberglas Corp., 715 A.2d 1125 (Pa.Super. 1998), this Court, applying pre- Giffear law, considered whether a plaintiff could bring an action in 1991 for diagnosed symptomatic asbestosis, when he had been diagnosed with asymptomatic pleural thickening in 1985. We concluded that the action, commenced within two years of his symptomatic diagnosis, was timely:
[A]sbestosis and shortness of breath, the condition and symptoms from which McCauley's medical records indicate he suffered in 1991 and 1992, were most likely not asymptomatic conditions of asbestos exposure. Rather, they can arguably be considered part of a separate and distinct disease which triggered the statute of limitations on a second action. Marinari, supra. Because McCauley instituted suit within the two years of discovering his symptoms/condition in 1991 and 1992, the trial court should not have granted a compulsory nonsuit.
Id. at 1131.
¶ 10 The same is true here. The diagnosis of lung cancer delivered to each appellant in 2002 constituted separate and distinct diseases from their claims for nonmalignant asbestos-related diseases and increased risk and fear of cancer in the prior actions. In this light, it bears emphasis that what the trial court and appellee refer to as appellants' prior "cancer-related" claims were not claims based on a diagnosis of lung cancer, but rather were claims for increased risk and fear of cancer due to their occupational exposure to asbestos.
¶ 11 Appellee contends, however, that the decision of our Supreme Court in Cleveland v. Johns-Manville Corp., 547 Pa. 402, 690 A.2d 1146 (1997), requires rejection of the argument of appellants. The Supreme Court in Cleveland considered whether its holding in Simmons v. Pacor, Inc., supra, affirming Giffear, supra, should be applied retroactively to invalidate the instruction of a trial court that permitted a plaintiff to recover for increased risk and fear of cancer. In holding that the Simmons rule would apply prospectively only, the Court opined:
The jury in Cleveland had awarded a general verdict in favor of the plaintiff for $1.5 million. See: Cleveland v. Johns-Manville Corp., supra, 547 Pa. at 407, 690 A.2d at 1148.
When faced with the issue of retroactivity, the threshold question is whether the decision announces a new principle of law. If it does, then we can choose to give the new rule prospective effect only. Our decision in Simmons represents a major landmark in asbestos litigation because this Court announced a new rule of law that definitely eliminated claims for increased risk and fear of cancer where cancer is not present. . . .
Once the threshold is met, we then consider the following three factors to decide if the new rule should be applied retroactively or prospectively: (1) the purpose to be served by the new rule; (2) the extent of the reliance on the old rule; and (3) the effect on the administration of justice by the retroactive application of the new rule.
The purpose of the rule announced in Simmons was to promote fairness in the adjudicative process by eliminating inequitable awards for speculative future damages. This is a significant purpose, and therefore, the first factor supports a retroactive application. The second and third factors, however, strongly favor a prospective only application of Simmons. There has been considerable reliance on the old rule. Countless trial courts charged juries in accordance with the law as it existed before Simmons. Additionally, our courts have labored under a backlog of asbestos cases for many years. Requiring new trials in each of the cases on appeal handled pursuant to the pre- Simmons rule would only exacerbate this congestion. Furthermore, we are unwilling to force sick and aging plaintiffs, who waited many years for their awards, back into court to re-litigate their claims. Memories have faded and documents have undoubtedly been lost during the intervening years.
We are cognizant of the burden on asbestos manufacturers who were required to pay judgments based on increased risk and fear of cancer. We believe, however, that renewed litigation would impose additional costs on these manufacturers and further impair the efficient administration of justice. Accordingly, we hold that Simmons is to be given only prospective effect.
Cleveland, supra, 547 Pa. at 413 — 414, 690 A.2d at 1152 (internal citations omitted).
¶ 12 In sum, since the rule pronounced in Simmons invalidated a previously compensable claim of increased risk and fear of cancer, retroactive application of the ruling would have required new trials in all asbestos actions in which a plaintiff, who had included an increased risk and fear of cancer claim, had been awarded a general verdict. As a result, countless plaintiffs would have suffered the anguish of further litigation, and defendants who had been required to pay on increased risk and fear of cancer claims, would have incurred great expense in religating all asbestos-related claims, even when the increased risk and fear of cancer claim may not have contributed to the verdict in their respective cases.
¶ 13 In contrast, retroactive application of the Marinari rule does not have the same negative impact on the administration of justice. Rather, it simply allows a plaintiff to bring a cause of action for cancer at the time when he first is diagnosed with the disease. It does not require relitigation of previously decided claims.
¶ 14 Therefore, we conclude that since the complaints of appellants were filed within two years of their cancer diagnoses, the litigation was commenced in a timely fashion, and the orders of the trial court dismissing the claims against appellee must be reversed.
¶ 15 Orders reversed. Cases remanded for proceedings consistent with this decision. Jurisdiction relinquished.
¶ 16 BOWES, J., FILES A DISSENTING OPINION.
¶ 1 I respectfully disagree with the majority's legal analysis and its conclusion that Appellants may pursue cancer claims against John Crane based upon the "two-disease rule" adopted in Marinari v. Asbestos Corp., Ltd., 612 A.2d 1021 (Pa.Super. 1992) ( en banc). Thus, I dissent.
¶ 2 The majority acknowledges that Mr. Shaw and Mr. Abrams reached settlements with several entities during the 1980s and that those actions included claims for both "nonmalignant asbestos-related diseases" and "increased risk and fear of developing cancer." Majority opinion at 3. When those cases were litigated, plaintiffs in asbestos actions were required to bring a single lawsuit encompassing all claims for present damages caused by their nonmalignant diseases and all claims for future damages premised on an increased risk of developing a malignant illness such as cancer. See Marinari, supra at 1023. Under that rigid approach, the statute of limitations for all predictable asbestos-related injuries began to run when the plaintiff was first diagnosed with an asbestos-related disease. Id.
¶ 3 The Marinari decision embodied a significant change in the law. In Marinari, the plaintiff was informed that he had pleural thickening in 1983; however, since he was not having difficulty breathing when the diagnosis was made, he did not bring an action for pleural thickening at that time. Thereafter, in July 1987, the plaintiff was diagnosed with lung cancer attributable to asbestos exposure and filed a lawsuit against numerous companies seeking damages based solely on cancer claims. The defendants filed motions for summary judgment, arguing that the action was subject to a two-year statute of limitations that began to run in 1983 when the plaintiff was diagnosed with pleural thickening. The trial court adopted the defendants' position and granted their motions. The plaintiff appealed.
¶ 4 In an en banc decision, this Court reversed the trial court's ruling and held that the plaintiff's knowledge of a nonmalignant, asbestos-related lung condition did not trigger the statute of limitations "with respect to an action for a later, separately diagnosed, disease of lung cancer." Id. at 1022. In reaching this conclusion, we recognized that "exposure to asbestos may result in a variety of benign and malignant conditions, each of which may occur at widely divergent times." Id. at 1024. We also observed that the process of awarding damages for future harm caused by undiagnosed diseases was inherently problematic because it entailed reliance on speculative evidence and produced inequitable results in cases where the plaintiff failed to develop a malignant illness. We therefore determined that plaintiffs with nonmalignant asbestos-related conditions would no longer be required to concurrently assert claims for malignant asbestos-related diseases that had not yet developed, stating as follows:
The approach to asbestos litigation suggested in Manzi [ v. H.K. Porter Co., 587 A.2d 778 (Pa.Super. 1991)], of allowing an action for nonmalignant asbestos disease and a separate action for cancer, we believe, represents the better view. In such actions, recovery can be had in a first action only for a disease which has already manifested itself from the exposure to asbestos and the natural, predictable progression, if any, of that disease. If additional injuries from a separate disease manifest themselves in the future, such injuries will support a second action.
Id. at 1023. Our Supreme Court subsequently embraced this principle in Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996), when it announced that plaintiffs with nonmalignant diseases caused by asbestos exposure could no longer recover damages for increased risk of cancer following the adoption of the two-disease rule in Marinari.
¶ 5 In the instant case, Mr. Shaw and Mr. Abrams were first diagnosed with nonmalignant asbestos-related diseases during the 1980s. At that time, they were required under Pennsylvania law to assert all claims for present and future damages within two years of those initial diagnoses. See Marinari, supra; Simmons; supra. Both men complied by instituting timely lawsuits against several companies, seeking damages for their nonmalignant diseases as well as increased risk of cancer. In addition, both men settled their claims against the named defendants. Clearly, Mr. Shaw and Mr. Abrams could have sued John Crane for increased risk of cancer in those actions but failed to do so. As a result, Appellants' present claims against John Crane are barred by the statute of limitations, which expired many years ago, and the orders in question should be affirmed.
¶ 6 The majority attempts to avoid this result by applying the Marinari two-disease rule retroactively based on Giffear v. Johns-Manville Corp., 632 A.2d 880 (Pa.Super. 1993) ( en banc), aff'd sub nom. Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996), and McCauley v. Owens-Corning Fiberglas Corp., 715 A.2d 1125 (Pa.Super. 1998). Neither case supports the majority's position. In Giffear, the plaintiff commenced an action seeking compensation for physical injuries and increased risk of cancer after an x-ray revealed that he had pleural thickening. The plaintiff prevailed at trial, but the judge granted the defendants' post-trial motions for judgment notwithstanding the verdict. On appeal, we considered whether asymptomatic pleural thickening was a compensable injury and whether the plaintiff could recover damages for increased risk of cancer absent a diagnosis of cancer, answering both questions in the negative.
¶ 7 The majority suggests that Giffear is instructive because the Giffear Court remarked that the plaintiff in that case could bring a separate action if he was later diagnosed with cancer. In reaching this conclusion, however, the majority overlooks the fact that the plaintiff in Giffear, unlike Mr. Shaw and Mr. Abrams, was not compensated for cancer-based claims in a prior asbestos action. Hence, the Giffear Court's offhand comment regarding the possibility of a separate cancer action in that instance did not imply that "any future action based on a cancer diagnosis would not have been affected by the plaintiff's previous claim for increased risk and fear of cancer." Majority opinion at 7. Rather, the Giffear Court sought to clarify that since it had determined that the plaintiff's initial risk-of-cancer claim did not allege a compensable injury under Pennsylvania law, the plaintiff was free to institute a separate action under Marinari if he subsequently developed cancer. The instant case is plainly distinguishable because Mr. Shaw and Mr. Abrams asserted their initial risk-of-cancer claims approximately seven years before Marinari and Giffear were decided, during a period when Pennsylvania courts did view "risk and fear of developing cancer" as a compensable injury.
¶ 8 The majority's reliance on McCauley, supra, is similarly misplaced. The plaintiff in McCauley filed an action on May 5, 1993, alleging that he suffered from, inter alia, symptomatic pulmonary asbestosis that was first diagnosed on May 11, 1991. When the case proceeded to trial, the judge entered a compulsory nonsuit in favor of the defendants based on the statute of limitations. Specifically, the judge concluded that the action was time-barred because it was commenced more than two years after a May 7, 1985 chest x-ray revealed that the plaintiff had asymptomatic, nonmalignant pleural thickening. On appeal, we reversed and remanded for a new trial. We reasoned that although the plaintiff's failure to institute a timely action for nonmalignant plural thickening precluded recovery on that cause of action, the plaintiff could nonetheless seek damages for separate diseases such as pulmonary asbestosis that were diagnosed after 1985. Since the 1993 lawsuit was filed within two years of the discovery of the plaintiff's asbestosis, we found that the trial judge erred in granting a nonsuit.
¶ 9 Herein, the majority posits that the case at bar is analogous to McCauley because Appellants' lung cancer claims against John Crane pertain to "separate and distinct diseases" in comparison to the risk-of-cancer claims alleged in the prior actions. Majority opinion at 8. This contention is simply untenable; the risk-of-cancer claims advanced in the previous actions were premised on the assertion that Mr. Shaw and Mr. Abrams would contract cancer in the future as a result of occupational exposure to asbestos. Meanwhile, Appellants' claims are founded on the assertion that both men did contract cancer due to that exposure. Therefore, the causes of action pursued by Mr. Shaw and Mr. Abrams in the 1980s pertained to the same malignant asbestos-related disease for which Appellants now seek to recover damages. Accordingly, the "separate and distinct disease" concept is inapplicable here, and contrary to the majority view, the present case bears no resemblance to McCauley.
¶ 10 Finally, I disagree with the majority's position that allowing Appellants to proceed in this action based on retroactive application of Marinari would not have a "negative impact on the administration of justice." Majority opinion at 11. On the contrary, the majority's decision will enable plaintiffs who have already been compensated for increased risk and fear of cancer to institute new actions against different defendants based on recent diagnoses of cancer, thus forcing companies to litigate cancer claims that have already been addressed and resolved.
This Court has only applied Marinari retroactively in cases where the appeal was pending when Marinari was decided. See, e.g., Dempsey v. Pacor, Inc., 632 A.2d 919 (Pa.Super. 1993) (vacating damage awards in asbestos actions for fear of contracting cancer and increased risk of cancer).
¶ 11 For the foregoing reasons, I would affirm the orders granting summary judgment in favor of John Crane based on the rationale cogently articulated in the opinion of the Honorable Norman Ackerman.