Abrams v. Pneumo Abex Corp.

981 A.2d 198, 602 Pa. 627, 2009 Pa. LEXIS 2212
CourtSupreme Court of Pennsylvania
DecidedOctober 21, 2009
Docket17 EAP 2008, 18 EAP 2008
StatusPublished
Cited by47 cases

This text of 981 A.2d 198 (Abrams v. Pneumo Abex Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abrams v. Pneumo Abex Corp., 981 A.2d 198, 602 Pa. 627, 2009 Pa. LEXIS 2212 (Pa. 2009).

Opinions

OPINION

Justice TODD.

This Court granted allowance of appeal in the instant consolidated personal injury cases to determine whether a prior recovery of damages for increased risk and fear of developing cancer due to asbestos exposure, awarded under the “one disease” rule, precludes a plaintiff from recovering, from a party he has not previously sued, damages for cancer that developed and was diagnosed after the separate disease rule, also referred to as the “two disease” rule, was adopted in Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992) (en banc). For the reasons set forth below, we conclude that such a prior recovery does not preclude a subsequent recovery, from a new defendant, of damages for the actual development of asbestos-related lung cancer. Accordingly, we reverse the order of the en banc panel of the Superior Court affirming the trial court’s grant of the motion for summary judgment filed by Appellee John Crane, Inc. (“Crane”),1 and remand this matter for further proceedings.

The relevant facts of this case are as follows: In April 1984, Kenneth Abrams was diagnosed with nonmalignant asbestos-related disease.2 John Shaw similarly was diagnosed with [632]*632nonmalignant asbestos-related disease in January 1985. Within two years of their respective diagnoses, both the Abrams and the Shaws filed complaints against various defendants seeking damages for increased risk and/or fear of cancer;3 [633]*633Crane, however, was not named as a defendant in either case. Both lawsuits were settled in 1993, prior to trial.

In December 2002, both Abrams and Shaw were diagnosed with lung cancer. In February 2003, the Abrams and the Shaws filed separate lawsuits against various companies, including Crane, alleging that the cause of their lung cancer was occupational exposure to asbestos-containing products manufactured by those companies. Subsequent to the filing of their complaints, Abrams and Shaw both passed away, and their widows, Eleanor Abrams and Marilyn Shaw (collectively, “Appellants”), were substituted as plaintiffs in their capacity as executrixes of their late husbands’ estates.

On February 11, 2005, Crane filed a motion for summary judgment in both cases, asserting that Appellants’ claims were barred by the statute of limitations. Specifically, Crane alleged that Appellants had successfully sued several companies for asbestos-related injuries in the mid-1980s; that those actions included claims for increased risk and fear of developing cancer; and that Crane should have been named as a defendant in those actions because, at that time, plaintiffs were required to bring all claims for existing nonmalignant conditions and predictable malignant diseases, including cancer, within two years of the initial diagnosis of an asbestos-related disease. The trial court agreed, and granted Crane’s motion for summary judgment in both cases.

On June 9, 2006, in a published opinion authored by President Judge Emeritus McEwen, a three-judge panel of the Superior Court reversed the trial court’s grant of summary judgment and remanded for further proceedings. Subsequently, however, Crane petitioned for and was granted reargument, and the Superior Court’s June 9, 2006 opinion was withdrawn. On December 17, 2007, an en banc panel of the Superior Court, in a 5-4 decision, affirmed the trial court’s grant of summary judgment in favor of Crane. In a majority [634]*634opinion authored by Judge Bowes, the Superior Court determined that the “risk of cancer” claims advanced by Appellants in their actions in the 1980s “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,” and thus “pertained to the same malignant asbestos-related disease for which Appellants now seek to recover damages.” Abrams v. Pneumo Abex Corp., 939 A.2d 388, 394 (Pa.Super.2007) (en banc). Judge Lally-Green, in a concurring statement joined by Judge Klein, emphasized the goals of judicial repose and finality, and noted that, at the time of Appellants’ initial suits, 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.” Id. at 395 (Lally-Green, J., concurring) (emphasis original).

Judge Stevens authored a dissenting opinion, joined by President Judge Ford Elliott and Judges Musmanno and Panella, wherein he noted a distinction between damages based on a fear of increased risk of cancer, and damages based on an actual diagnosis of cancer. In a separate dissenting opinion, joined by President Judge Ford Elliott and Judges Stevens and Panella, Judge Musmanno opined that, pursuant to the Superior Court’s decision in Marinari, supra, a plaintiffs “discovery of a nonmalignant, asbestos related lung pathology ... does not trigger the statute of limitations with respect to an action for a later, separately diagnosed, disease of lung cancer.” Id. at 397 (Musmanno, J., dissenting). Appellants petitioned for allowance of appeal, and, on June 10, 2008, this Court granted their petition to consider the issue stated above. The appeal was argued on October 20, 2008.

Preliminarily, we note our well established standard of review of an order granting or denying a motion for summary judgment:

We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving [635]*635party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Our scope of review of a trial court’s order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or abused its discretion.

Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001) (citations omitted).

In 1992, the law in Pennsylvania regarding recovery for injuries resulting from exposure to asbestos underwent a sea change. Prior to 1992, a plaintiff seeking damages based on his or her exposure to asbestos or asbestos-containing products was required to file a single cause of action for all present and future harm within two years4 of the initial diagnosis of any asbestos-related condition. This rule developed from the Superior Court’s decision in Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) (en banc), in which the court held that a plaintiffs claim for pleural thickening, which was filed within two years of the diagnosis thereof, but more than two years after the plaintiff was initially diagnosed with asbestosis, was time-barred under 42 Pa.C.S.A. § 5524(2). The Superior Court in Cathcart

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Bluebook (online)
981 A.2d 198, 602 Pa. 627, 2009 Pa. LEXIS 2212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abrams-v-pneumo-abex-corp-pa-2009.