Collins v. Pittsburgh Corning Corp.

673 A.2d 159, 1996 Del. LEXIS 130
CourtSupreme Court of Delaware
DecidedMarch 26, 1996
DocketNo. 238, 1995
StatusPublished
Cited by5 cases

This text of 673 A.2d 159 (Collins v. Pittsburgh Corning Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collins v. Pittsburgh Corning Corp., 673 A.2d 159, 1996 Del. LEXIS 130 (Del. 1996).

Opinion

WALSH, Justice:

In this appeal from the Superior Court, the plaintiff-appellant, Marvin Collins (“Collins”), asserts error in the Superior Court’s grant of summary judgment in favor of the defendants-appellees on the basis that the statute of limitations bars Collins’ claim for damages resulting from asbestos exposure. The trial court ruled that Collins’ long-held belief that he had incurred an asbestos related ailment was sufficient to place him on notice of the existence of a viable claim even in the absence of objective evidence to support his belief. We conclude that, under the unusual circumstances of this case, the question of whether Collins was justifiably on notice of the presence of an asbestos related injury, and its causation, turned on factual controversies which precluded the grant of summary judgment. Accordingly, we reverse.

I

Our standard of review in an appeal from the grant of summary judgment is de novo. Merrill v. Crothall-American, Inc., Del.Supr., 606 A.2d 96, 99 (1992). We view the facts from a perspective which favors the non-movant, Collins. Id. at 99-100.

Collins had been employed with E.I. DuPont de Nemours & Co. (“DuPont”) for more than forty years at its Deepwater, New Jersey facility as a pipefitter and supervisor. His work brought him into contact with asbestos products of various types. For several years prior to his 1982 retirement, he experienced both physical and emotional difficulties. In 1980, as a result of a gastrointestinal attack, Collins was hospitalized in New York. At that time, Dr. Robert Litman performed certain diagnostic tests out of concern that Collins’ work history of asbestos exposure might lead to a diagnosis of asbestosis or other pulmonary involvement. All tests were negative, however, and no formal diagnosis of asbestosis was made. Nonetheless, Dr. Littman’s discharge report, dated January 27,1980, contained an entry of “suspected pulmonary asbestosis.”

Following his release from the hospital, Collins returned to work at DuPont although he continued to have anxiety about possible asbestosis-related ailments: In March, 1980, he consulted Dr. Neeld, a company physician about a possible medical pension. Dr. Neeld examined Collins’ work history, secured his outside medical history and conducted pulmonary function testing. Dr. Neeld concluded: “It is my opinion that the man has neither pulmonary abnormalities nor functional abnormalities. Therefore one cannot incriminate asbestos for a non-existent medical entity.” Dr. Neeld sent a memorandum to Collins’ supervisor indicating “no asbestos-related disease.”

Collins continued to complain to DuPont about gastrointestinal and emotional problems but was unsuccessful in receiving a medical pension. He retired on a longevity pension in 1982. In 1985, at the request of his family physician Collins underwent a chest x-ray with a private radiologist. The radiologist’s report recited in part: “The lung fields show no evidence of pneumonia consolidation, active acid fast infection or other active pathological process. There is no significant pleural reaction.” In early 1992, apparently at the suggestion of counsel whom he had consulted, Collins was examined by Dr. Susan Daum, a specialist in asbestos-related diseases. After testing and examination of chest x-rays, Dr. Daum concluded that Collins “has pulmonary and pleural asbestosis.” This action was filed on September 30, 1992, naming as defendants various manufacturers and suppliers of asbestos products to DuPont during Collins’ employment. Collins also named DuPont as [162]*162a defendant, alleging that it had intentionally concealed from him the dangers of asbestos.

In the course of discovery, the defendants deposed Collins who gave answers which were somewhat inconsistent. He claimed that he was under the belief in 1980 that he had asbestosis based on what Dr. Litman told him, but none of the objective tests performed by Dr. Litman or DuPont confirmed the disease.

Collins also testified that he consulted an attorney in New York about his situation. The results of that consultation were not revealed, but for present purposes no adverse inference can be drawn from that fact. While defendants argue that Collins’ actions in consulting with an attorney indicates an awareness of a nexus between his physical condition and his work history of asbestos exposure, it is equally inferable that his New York counsel advised him that without medical verification he had no basis to bring suit.1

In moving for summary judgment, the defendants argued that Collins’ persistent belief that he had an asbestos-related ailment in 1980 required him to assert his claim within the ensuing two year period. In a bench ruling granting summary judgment in favor of the defendants, the Superior Court agreed:

There’s no doubt that this man thought that he had asbestosis and whether that ultimately was right or wrong, at that particular point in time he had a duty to investigate it or to find out that what the true facts were. And I think that his relying on the fact that his employer told him he didn’t and that he didn’t believe his employer isn’t good enough.

II

Fixing the period of limitations in asbestos exposure cases is often problematic because of the acknowledged latency period in the development of diseases associated with asbestos. Bendix Corp. v. Stagg, Del.Supr., 486 A.2d 1150, 1152 (1984). The presence of “an inherently unknowable injury to a blamelessly ignorant plaintiff’ prompted this Court to extend to latent disease cases the time of discovery standard adopted in Layton v. Allen, Del.Supr., 246 A.2d 794 (1968), a medical malpractice case, and applied thereafter to a variety of claims not known to an unsuspecting plaintiff. Isaacson, Stolper & Co. v. Artisans’ Sav. Bank, Del.Supr., 330 A.2d 130 (1974) (accounting malpractice); Pioneer Nat’l Title Ins. Co. v. Child, Inc., Del.Supr., 401 A.2d 68 (1979) (attorney malpractice).

The two year period of limitations set forth in 10 Del.C. § 8119 governing personal injury claims is applicable to asbestos-related diseases or ailments. The period begins to run when the plaintiff is chargeable with knowledge that his condition is attributable to asbestos exposure. A plaintiff who seeks to toll the statutory period through reliance on the discovery rule must show that he “acted reasonably and promptly in seeking a diagnosis and in pursuing the cause of action.” In re Asbestos Litig., West Trial Group, Del.Super., 622 A.2d 1090, 1092 (1992). Mere exposure to asbestos accompanied by symptomatology associated with asbestosis may not suffice, however, to render a plaintiff chargeable with knowledge that his harm is attributable to asbestos exposure where there is uncertainty in medical diagnosis. See Sheppard v. A.C. & S. Co., Del.Super., 498 A.2d 1126, 1130-31 (1985), aff'd sub [163]

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673 A.2d 159, 1996 Del. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-pittsburgh-corning-corp-del-1996.