Abrams v. Pneumo Abex Corp.

939 A.2d 388, 2007 Pa. Super. 383, 2007 Pa. Super. LEXIS 4416

• Court: Superior Court of Pennsylvania
• Decided: December 17, 2007
• Status: Published

Opinions

OPINION BY

BOWES, J.:

¶ 1 Eleanor Abrams, the executrix of the estate of Kenneth Abrams, and Marilyn Shaw, the executrix of the estate of John Shaw, appeal from the grant of summary judgment in favor of John Crane, Inc. (“John Crane” or “Crane”) in these personal injury actions.¹ We affirm.

¶ 2 The Shaws and the Abramses instituted these lawsuits on February 25, 2003, alleging that Mr. Shaw and Mr. Abrams (“the decedents”) were diagnosed with lung cancer in December 2002 and that their injuries stemmed from occupational exposure to asbestos-containing products made by John Crane and various other companies. On February 11, 2005, John Crane filed a motion for summary judgment in both cases arguing that the parties’ claims were barred by the statute of limitations. Specifically, Crane asserted that both couples successfully sued numerous companies for asbestos-related injuries in the mid-1980s, that those lawsuits included claims for increased risk and fear of developing cancer, and that Crane should have been named as a defendant in those actions because prior to 1992, plaintiffs were required to bring all claims for existing nonmalignant conditions and predictable malignant diseases, e.g., cancer, within two years of the initial diagnosis of an asbestos-related disease. The trial court agreed and granted Crane’s motions for summary judgment.²

¶ 3 On June 9, 2006, a panel of this Court published an opinion in which the majority reversed and remanded for further proceedings. John Crane filed a timely application for en banc reargument, which was granted on August 15, 2006, and the June 9, 2006 opinion was withdrawn. We now conclude that the trial court’s ruling was correct and therefore affirm the grant of summary judgment in favor of John Crane.

Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.

Rudy v. A-Best Products Company, 870 A.2d 380, 383 (Pa.Super.2005) (quoting Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 651 (Pa.Super.2002)). As our examination of the trial court’s ruling involves a question of law, our scope of review is plenary. Roth Cash Register Company, Inc. v. Micro Systems, Inc., 868 A.2d 1222 (Pa.Super.2005). We will not reverse a grant of summary judgment unless the trial court committed an error of law or abused its discretion. Rudy, supra.

¶ 4 In the case at bar, the record confirms that the Abramses and the Shaws instituted asbestos actions approximately twenty years ago. Mr. and Mrs. Abrams brought suit in March 1986 against several corporate defendants after Mr. Abrams was diagnosed with, inter alia, “asbestos-related lung diseases” on April 12, 1984. Abrams Complaint, 3/20/86, at ¶ 6. In that case, the Abramses sought damages for all existing and future injuries caused by asbestos particles emitted by the defendants’ products, including “traumatic fear of an increased risk of [developing] ... cancer.” Id. at ¶ 47, 48. Similarly, the Shaws filed suit in September 1985 against numerous companies after Mr. Shaw was diagnosed with asbestosis and “chronic restrictive pulmonary lung disease” on January 2, 1985. Shaw Complaint, 9/25/85, at ¶ 30. The Shaws sought damages for existing injuries, risk of developing mesothelioma and other forms of cancer, and “traumatic neurosis or cancerophobia.”³ Id. at ¶28. Appellants concede that both actions were settled in 1993. See Appellants’ brief at 5.

¶5 When those cases were litigated, Pennsylvania law provided that plaintiffs 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 Giovanetti v. Johns-Manville Corporation, 372 Pa.Super. 431, 539 A.2d 871 (1988). 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. As time progressed, however, litigants and courts began to criticize the practice of enabling plaintiffs to recover damages for illnesses that had not yet been diagnosed. Thus, this Court announced a new rule of law in Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992) (en banc).

¶ 6 In Marinari, the plaintiff was informed that he had pleural thickening in 1983, but he did not institute a lawsuit as he was not experiencing breathing problems. Then, in July 1987, the plaintiff was diagnosed with lung cancer attributable to asbestos exposure and commenced an action against several companies seeking damages solely for his cancer-related injuries. The defendants filed motions for summary judgment, arguing that the lawsuit was subject to a two-year statute of limitations that began to run in 1988 when the plaintiff was diagnosed with pleural thickening. The trial court granted the defendants’ motions, and the plaintiff appealed.

¶ 7 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., 402 Pa.Super. 595, 587 A.2d 778 (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 so-called “two-disease rule” in Marinari.

¶ 8 In the instant case, the trial court concluded that Appellants’ present claims were barred by the statute of limitations because they had recovered damages for cancer-related injuries in their prior lawsuits, which were filed during the period when plaintiffs had to sue for all foreseeable malignant diseases within two years of the diagnosis of any asbestos-related injury. Appellants maintain that the trial court’s ruling was improper for several reasons. First, they argue that the factual background of this case is virtually identical to the underlying facts in Marinari, and thus, that case is controlling and necessitates a finding that the present lawsuits were timely filed within two years of the discovery of the decedents’ lung cancer. Second, Appellants assert that two cases decided after Marinari indicate that plaintiffs who have recovered damages for increased risk and fear of cancer in previous lawsuits may institute a subsequent action based upon an actual diagnosis of cancer. Finally, Appellants contend that they should be allowed to litigate the decedents’ lung cancer claims because individuals who settled claims for increased risk and fear of developing cancer prior to Marinari were not adequately compensated for their injuries.

¶ 9 Appellants’ initial argument that this case is factually indistinguishable from Marinari is baseless. Unlike Mr. Shaw and Mr. Abrams, who recovered damages for cancer-related injuries in previous lawsuits and then proceeded to file additional actions, the plaintiff in Marinari filed a single lawsuit seeking damages for asbestos-related cancer four years after he opted to forego an action for nonmalignant, asymptomatic pleural thickening. Indeed, the issue in Mañnari was whether that plaintiff’s failure to bring an action for pleural thickening in 1983 precluded a subsequent cause of action for a “distinct, separate disease” such as cancer. Mañ-nañ supra at 1028. Conversely, the issue herein is whether a party who was compensated for increased risk and fear of developing asbestos-related cancer in a prior action can sue a new defendant many years later based upon a recent diagnosis of cancer. Hence, the two cases are readily distinguishable.

¶ 10 In asserting that post-Mañnañ case law warrants reversal of the orders in question, Appellants devote a significant portion of their brief to an argument that this case does not involve retroactive application of Mañnañ. See Appellants’ brief at 10-16. We agree with Appellants on this point. This Court has only applied Mañnañ retroactively to vacate damage awards for increased risk and fear of cancer in appeals that were pending when Mañnañ was decided. See, e.g., Dempsey v. Pacor, Inc., 429 Pa.Super. 404, 632 A.2d 919 (1993). Thus, we now address Appellants’ primary contention that this Court’s decisions in Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (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), indicate that a plaintiff who has already recovered damages for increased risk and fear of cancer may institute a subsequent lawsuit after contracting that disease.

¶ 11 In Giffear, supra, 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.

¶ 12 Appellants suggest that Gijfear is instructive because the Gijfear Court remarked that the plaintiff in that case could bring a separate action if he was later diagnosed with cancer. In arguing this point, however, Appellants ignore the fact that the plaintiff in Gijfear, unlike Mr. Shaw and Mr. Abrams, was not compensated for cancer-based claims in a prior asbestos lawsuit. Hence, the Gijfear Court’s offhand comment regarding the possibility of a separate cancer action in that instance did not imply, as Appellants suggest, that “the bringing of a nonmalig-nancy action that included assertion of increased risk and fear of cancer claims does not bar a plaintiff from bringing a subsequent cancer claim under the separate disease rule.” Appellants’ brief at 17. Rather, the Gijfear 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 Mañ-nañ 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 Marinan and Gijfear were decided, during a period when Pennsylvania courts did view “risk and fear of developing cancer” as a com-pensable injury.

¶ 13 Appellants’ 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 plaintiffs 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 plaintiffs asbestosis, we found that the trial judge erred in granting a nonsuit.

¶ 14 Herein, Appellants suggest that the instant ease is analogous to McCauley because their lung cancer claims against John Crane are completely different from the risk-of-cancer claims alleged in the prior actions. See Appellants’ brief at 18. 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’ present claims are founded on the identical assertion, i.e., that both men did contract lung 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 present case bears no resemblance to McCauley.

¶ 15 Finally, Appellants assert that they should be permitted to assert cancer claims against John Crane because they did not receive sufficient compensation for their risk-of-cancer claims in 1993. Specifically, Appellants insinuate that they settled their prior cancer claims for inadequate amounts because “[pjlaintiffs who claimed a nonmalignant disease [prior to Marinari] were aware that they would face serious challenges over whether their injuries were compensable.” Appellants’ brief at 22. We find this argument unpersuasive. Appellants and their late husbands had an opportunity to sue John Crane for increased risk and fear of cancer during the 1980s but failed to do so, despite the fact that both couples knew they were required to assert all claims for present and future harm within two years of the initial diagnosis of an asbestos-related injury. As the statute of limitations applicable to the previous lawsuits expired long ago, John Crane reasonably believed that it would not have to defend these claims, and the company is entitled to repose due to the fact that it was not named as a defendant in the prior actions. See Lesoon v. Metropolitan Life Insurance Company, 898 A.2d 620 (Pa.Super.2006) (statutes of limitations are designed to effectuate preservation of evidence, the right of potential defendants to repose, and administrative efficiency).

¶ 16 Based on our review of the record, which confirms that no genuine issues of material fact exist and establishes that John Crane is entitled to judgment as a matter of law, we hereby affirm.

¶ 17 Judgments affirmed.

¶ 18 ORIE MELVIN, LALLY-GREEN, KLEIN and BENDER, JJ. join the Majority Opinion. ¶ 19 LALLY-GREEN, J. files a Concurring Statement in which KLEIN, J. joins. ¶ 20 STEVENS, J. files a Dissenting Opinion in which FORD ELLIOTT, P.J. and MUSMANNO and PANELLA, JJ. join. ¶ 21 MUSMANNO, J. files a Dissenting Opinion in which FORD ELLIOTT, P.J., and STEVENS and PANELLA, JJ. join.

1 . Mr. Shaw and Mr. Abrams died after these actions were filed, and their widows were substituted as plaintiffs in their capacity as executrices of their late husbands’ estates. See Appellants’ brief at 5.

2 . The orders in question became final and appealable on April 4, 2005, when the trial court entered an order declaring both actions settled with respect to all remaining defendants. See Pa.R.A.P. 341(b)(1).

3 . In his dissent, Judge Stevens concedes that the Shaws previously sued for increased risk of cancer but maintains that the Abramses sued only for fear of developing cancer, which is a different cause of action. The record belies this assertion. In their prior lawsuit, the Abramses brought claims for "injuries to [Mr. Abrams’s] respiratory system ... and other diseases which have not yet been diagnosed,” i.e., cancer. Abrams Complaint, 3/20/86, at ¶ 45. Moreover, in the present appeal, Appellants have acknowledged that both of the prior actions included claims for increased risk of cancer. See Appellants’ brief at 18 ("The prior claims were merely for increased risk and fear of cancer due to occupational exposure to asbestos....”).