Lapka v. Porter Hayden Co.

745 A.2d 525, 162 N.J. 545, 2000 N.J. LEXIS 33

• Court: Supreme Court of New Jersey
• Decided: February 24, 2000
• Status: Published

Opinions

The opinion of the Court was delivered by

VERNIERO, J.

Plaintiffs Kazimierz Lapka and his wife, Emilia Lapka, commenced this action by filing a complaint in the Law Division on March 24, 1988. (In this opinion, the singular plaintiff refers to Kazimierz Lapka.) The complaint alleges injury caused by occupational exposure to asbestos.

We are called on to determine whether the action is barred by the two-year statute of limitations found at N.J.S.A. 2A:14-2. That determination requires us to consider the applicability of the “discovery rule,” an equitable principle that delays accrual of a cause of action “until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.” Lopez v. Swyer, 62 N.J. 267, 272, 300 A.2d 563 (1973).

The trial court and Appellate Division each held that plaintiffs’ suit was time-barred. The courts concluded, based on medical records and plaintiffs earlier submission of a workers’ compensation claim, that the cause of action accrued more than two years before the suit was filed. We agree and affirm.

I.

Plaintiff was employed by the Essex Chemical Corporation (“Essex Chemical” or the “company”) in Sayreville from 1967 to 1984. He worked as a chemical operator and hot-melt operator. Those jobs required plaintiff to mix a liquid with pigment and asbestos powder in the manufacture of paneling glue. Plaintiff also assisted in the manufacture of other products, including urethane and paint. During the course of his employment, plaintiff was exposed to finished and unfinished asbestos products, dust, particles, fibers, and other hazardous substances.

Plaintiff was first diagnosed with a lung ailment as a result of a chest x-ray taken on February 13, 1981. The radiologist who examined the x-ray made this notation in the patient’s record: “OPINION: Findings of pulmonary emphysema with mild diffuse fibrotic lung changes as well.” We note that “[cjontinuous breathing of asbestos-laden air will cause an eventual concentration of the particles in the lung tissue ... [and] ... the noxious effect of these rock particles causes the body to set up an inflammation until eventually fibrosis occurs.” Sloane-Dorland Annotated Medical-Legal Dictionary 285 (1987).

About one week later, on February 21, 1981, plaintiff was admitted to Raritan Bay Medical Center complaining of shortness of breath. Another chest x-ray was taken on February 22, 1981 that showed, according to notations in the medical record, that plaintiff suffered from “pleural thickening” and “increased markings within the lungs” compatible with a “previous inflammatory disease.”

Upon plaintiff’s discharge from the hospital on March 1, 1981, his treating physician, Dr. Thaddeus A. Balinski, rendered a final diagnosis, noting in the patient’s discharge papers: “pulmonary fibrosis and emphysema.” Dr. Balinski also signed and submitted a physician’s supplementary statement to plaintiff’s insurance carrier. Consistent with Dr. Balinski’s earlier diagnosis, the supplementary statement dated June 29,1981, indicated a diagnosis of “emphysema.”

Plaintiff went on disability leave in 1981. The loss prevention manager for Essex Chemical, Karl J. Trommler, Jr., expressed concern about returning plaintiff to the position of hot-melt operator in view of his diagnosed condition. In a letter dated July 7, 1981 to Dr. Balinski, Trommler described plaintiffs work environment and asked Dr. Balinski to “help me to decide what placement is in Mr. Lapka’s best interest from a health standpoint.” Trommler noted that as a hot-melt operator, plaintiff would add raw materials to the hot-melt reactor and thereupon be exposed to hot air, fumes, coal tar, various hydrocarbon groups, and trace impurities driven off during the heating process.

Dr. Balinski replied in a letter dated August 3,1981, stating: “I believe that in the best health and interest of Kazimierz Lapka, he not be returned to his regular job but to another job that we discussed in a less toxic area.” That belief was consistent with an earlier opinion expressed by the company physician, Dr. Francis X. Urbanski. Dr. Urbanski stated in a July 23, 1981 letter to Trommler: “The distinct possibility of future occupational inhalation exposure could possibly cause aggravation to his pulmonary status. Suitable occupational placement in the future must include a work environment that prevents any possibility of significant inhalation exposure.”

Plaintiff returned to work in a new position, that of chief operator. That job required him to receive and record data concerning certain reactors at the company.

Plaintiff was again admitted to the Raritan Bay Medical Center on June 6, 1984. At the time he was experiencing shortness of breath, weight loss, and general weakness. At the medical center, he was again diagnosed with chronic obstructive pulmonary disease (“COPD”). An x-ray confirmed that diagnosis. On the patient’s admitting form, Dr. Balinski noted that plaintiff “work[ed] in a chemical factory [and was] possibl[y] allerg[ie] to some chemicals and [would] feel[] [shortness of breath] while working.”

Plaintiff signed a workers’ compensation claim petition on January 14, 1986. The petition, a two-page form, is printed and made available by the Division of Workers’ Compensation (the “Division”) pursuant to N.J.S.A. 34:15-51. The form requires a petitioner to fill in specific information about a claim. The upper portion of the form states in pre-printed text:

Petitioner [plaintiff], alleging that the Petitioner sustained an injury by an accident arising out of and'in the course of petitioner’s employment with Respondent [Essex Chemical], compensable under R.S. 34:15-7 et seq., supplements and amendments, respectfully states:

In the space on the petition labeled DESCRIBE EXTENT AND CHARACTER OF INJURY, plaintiff filled in the Mowing information: “PETITIONER SUSTAINED PULMONARY, AND INTERNAL ORGAN DISABILITY; AS WELL AS BINAURAL LOSS OF HEARING AND BILATERAL EYE DISABILITY.” On that part of the form labeled DATE OF ACCIDENT OR DATES OF OCCUPATIONAL EXPOSURE, plaintiff stated: “1967 to June 5, 1984.” In the space on the petition labeled WHERE, plaintiff stated: “Respondent’s premises.” In the space on the form labeled HOW, plaintiff stated: “PETITIONER EXPOSED TO ASBESTOS, NOISE AND CHEMICALS.” In the space on the form labeled DATE INJURY REPORTED TO EMPLOYER AND TO WHOM, plaintiff stated: “Respondent had constructive notice.”

An attorney from the law firm of Franz and Mintz notarized plaintiffs signature, which appears at the bottom portion of page two of the petition. Consistent with standard oath-taking language, the text immediately preceding the attorney’s signature provides: “STATE OF NEW JERSEY/COUNTY OF MIDDLE-SEX: ss/Subscribed and sworn or affirmed to before me this 14th day of JANUARY, 1986.”

Plaintiff filed the claim petition with the Division on February 13, 1986. Thereafter, plaintiffs attorneys requested that Dr. Malcolm H. Hermele examine plaintiff. The examination occurred on March 24,1986. Dr. Hermele summarized his examination and conclusions in a letter to Franz and Mintz dated the same date. Dr. Hermele’s letter states in part:

At your request, I examined Kazimierz Lapka in my office on March 24,1986. He gave me the following history:

Mr. Lapka was employed by Essex Chemical Coip. from 1967 to May, 1984 as a chemical operator. He was exposed to dust, fumes, dirt, asbestos, carbon monoxide, chemicals used in plastic products, petroleum products, paints, powders, solvents, acetone and extremes in temperature____

Mr. Lapka complains of coughing, bringing up phlegm, experiencing shortness of breath. Patient cannot climb one flight of stairs without shortness of breath and uses two pillows at night in order to be able to sleep and breathe properly. On getting up in the morning, patient has coughing fits which go on for quite a while and are productive of a whitish yellow phlegm. All the above complaints have been going on for more than 2 years____

Conclusions: Based upon the history and the physical examination it is my opinion that Kazimierz Lapka has emphysema, restrictive pulmonary disease and small air-ways disease for which I would estimate a permanent disability of 65% of total. Based upon the history it is my opinion that the chest condition is causally related to or exacerbated by the exposure to the above pulmonary noxious agents while employed by Essex Chemical Corp.

As noted in the letter, Dr. Hermele reached his conclusions based upon a physical examination and the patient’s history, which was given to him by plaintiff.

Plaintiff was again admitted to Raritan Bay Medical Center on November 2, 1996. The admitting attendant prepared plaintiffs personal history sheet, noting on the sheet: “stoped [sic] working in 1984 when he was diagnosed [with] asbestos.” The form also indicates that the history so noted was given by “patient and patient’s wife.” Plaintiffs patient chart also includes this entry: “[a]ccording to patient and his wife, this pt [patient] has H/O [history of] emphysema & asbestosis & silicosis since ’84.” Another entry indicates that plaintiff “had h/o [history of] COPD for > 20 yr, c [with] asbestosis silicosis diagnosed about 12 years ago.” Plaintiff died on November 3, 1996. The record does not reveal the cause of death.

Plaintiffs filed their complaint in the Law Division on March 24, 1988. It alleges that plaintiff contracted “chronic asbestos and/or pulmonary disease” and suffered other injuries during the course of his employment as a result of being “continuously exposed to both products containing finished and unfinished asbestos products, dust, particles and fibers.” Plaintiffs later amended the complaint to include defendants Porter Hayden Company and H.M. Royal Co., the designated legal entities of certain manufacturers and suppliers of asbestos-containing products. Essex Chemical was named as a defendant in the original complaint for purposes of obtaining discovery only.

The trial court dismissed the complaint as untimely on November 24,1997. (After the notice of appeal was filed in the Appellate Division, the Law Division judge vacated a previous order permitting the substitution of plaintiff Emilia Lapka as Executrix of the Estate of Kazimierz Lapka. The parties’ briefs to this Court retained the earlier caption.) The Appellate Division affirmed in an unreported decision. The panel concluded that plaintiff knew his condition was asbestos-related “at least as of the date he signed and filed his workers’ compensation petition in January 1986.” The court also determined that, because the workers’ compensation petition “unquestionably established plaintiff’s knowledge of the essential facts,” no evidentiary hearing was required as might otherwise be conducted in keeping with the procedures outlined in Lopez, supra, 62 N.J. 267, 300 A.2d 563. We granted plaintiffs’ petition for certification, 158 N.J. 687, 731 A.2d 47 (1999).

II.

The statute of limitations governing this action is found at N.J.S.A. 2A:14-2, which states:

Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.

[Ibid.]

Applying discovery rule principles to this statute, we must ask: Did plaintiffs file suit within two years from the date they discovered, or by the exercise of reasonable diligence and intelligence should have discovered, the basis for an actionable claim?

According to defendants, the hospital records demonstrate that plaintiff knew that he had been exposed to asbestos no later than 1984, and knew also that he was suffering from work-related respiratory problems. They emphasize that, in January 1986, plaintiff signed the workers’ compensation petition specifying that he suffered from a pulmonary condition related to occupational exposure to asbestos. Thus, defendants argue that the medical records, together with the filing of the workers’ compensation claim, indicate that plaintiffs knew or should have known that they had a basis to sue more than two years before the complaint was filed.

Plaintiffs counter that the entries in the hospital records do not establish that either of them believed in 1984 that plaintiff suffered from asbestosis. Alternately, they argue that even if the hospital l’ecords are viewed as establishing that plaintiff knew about asbestosis in 1984, those records do not establish that he had, in fact, been so diagnosed. In their view, the records do not conclusively show that plaintiff believed in 1984 that he suffered from an asbestos-related illness. With respect to the workers’ compensation petition, plaintiffs assert that because plaintiff was not diagnosed specifically with asbestosis until March 24,1986, the date of Dr. Hermele’s examination, the petition does not mark their discovery of the cause of action.

We conclude that the record establishes that plaintiff knew or should have known that he had a basis for a claim more than two years before the complaint was filed. As early as 1981, plaintiffs treating physician, Dr. Balinski, stated to the company manager that plaintiff should be transferred into a “less toxic area.” The company physician, Dr. Urbanski, concurred. Other parts of the record, including the 1996 hospital admitting forms, indicate that plaintiff knew enough by 1984 to prompt diligent inquiry as to whether the exposure to workplace substances was having a deleterious effect on his health.

Plaintiffs workers’ compensation petition leaves no doubt as to the state of his knowledge as of the date of that petition, January 14, 1986. The petition unambiguously alleges occupational exposure to asbestos as a cause of plaintiffs injury. It also avers that the company “had constructive notice” of both the asserted injury and its cause. It logically follows that if the company had such notice, so too did plaintiff for purposes of any subsequent action.

By statute, a workers’ compensation petition must be “verified by the oath or affirmation of the petitioner.” N.J.S.A. 34:15-51. The respondent’s answer must be similarly verified. N.J.S.A. 34:15-52. The intent of these verification provisions “is that in proceedings brought before the Division the issues be narrowed by specific averments supported by factual contentions.” Conway v. Mister Softee, Inc., 51 N.J. 254, 261, 239 A.2d 241 (1968). On the facts presented, we cannot overlook the information contained in plaintiffs sworn petition without jeopardizing the integrity of the petition itself.

Courts in other jurisdictions are in wide agreement that a sworn and signed workers’ compensation petition cannot be disavowed by a plaintiff subsequently seeking to establish a lack of knowledge. See, e.g., Ackler v. Raymark Indus., 380 Pa.Super. 183, 551 A.2d 291, 293 (1988) (stating that “it is not necessary that the exact nature of his injury be known so long as it objectively appears that he is reasonably charged with the knowledge that he has an injury caused by another”); Price v. Johns-Manville Corp., 336 Pa.Super. 133, 485 A.2d 466 (1984) (affirming the importance of averments contained in a sworn and signed workers’ compensation petition when determining plaintiffs knowledge of asbestos exposure); Meeker v. American Torque Rod of Ohio, Inc., 79 Ohio App.3d 514, 607 N.E.2d 874 (1992) (holding that workers’ compensation claim averring chemical exposure sufficient to establish plaintiffs knowledge).

Plaintiffs suggest that the discovery rule delays accrual of an action until a claimant acquires an exact medical diagnosis of an asserted condition. We disagree. We impute discovery if the plaintiff is aware of facts that would alert a reasonable person to the possibility of an actionable claim; medical or legal certainty is not required. As we explained in Burd v. New Jersey Tel. Co., 76 N.J. 284, 291, 293, 386 A.2d 1310 (1978):

It was not our intent ... to hold that a claimant’s time to sue, for limitations purposes, does not begin to run until he knows or is advised by a lawyer that facts of which he does, or should, reasonably have knowledge, give rise to a legal cause of action against a particular defendant. Thé statute of limitations necessarily imputes conclusively to a claimant knowledge that the law affords or may afford a cause of action on the basis of those facts of injury and causal relationship which in law do evoke a cause of action. In this regard it is of no consequence whether the cause of action arises in the field of products liability or any other aspect of tort law, or as to the degree of expertise which different lawyers possess in one such field or another. The discovery principle modifies the conventional limitations rule only to the extent of postponing the commencement of accrual of the cause of action until plaintiff learns, or reasonably should learn, the existence of that state of facts which may equate in law with a cause of action.

---- The proofs need not evoke a finding that plaintiff knew for a certainty that the factual basis was present. It is enough that plaintiff had or should have discovered that he “may have” a basis for the claim.

See also Savage v. Old Bridge-Sayreville Med. Group, 134 N.J. 241, 248, 633 A.2d 514 (1993) (providing that discovery will be imputed when an injury has occurred and there exists the awareness of “facts that would alert a reasonable person exercising ordinary diligence that a third party’s conduct may have caused or contributed to the cause of the injury and that conduct itself might possibly have been unreasonable or lacking in due care”).

Although cited by plaintiffs in support of their argument, the letter by Dr. Hermele is consistent with a finding that plaintiffs’ cause of action accrued more than two years in advance of the filing of the complaint. That letter chronicled plaintiffs history at Essex Chemical, including the fact that he was exposed to asbestos as well as other noxious agents. By the terms of the letter, Dr. Hermele was provided such history by plaintiff himself. That suggests that, prior to the date of the examination, plaintiff knew, or his records revealed, that exposure to asbestos caused or at least contributed to his injury.

Dr. Hermele examined plaintiff on March 24,1986, two years to the day prior to the filing of plaintiffs’ Law Division action. The inference is plain, if not compelling: to provide personal history to Dr. Hermele for use in the examination, plaintiff must have had knowledge of facts or access to pertinent information in advance of that date. Within that time frame, plaintiffs knowledge or awareness of facts would mark the accrual of the cause of action at a point outside of the allowable limitations period.

Plaintiffs urge a different conclusion, relying in part on Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 527 A.2d 66 (1987). The plaintiff there sought recovery of damages for injuries resulting from his exposure to toxic chemical waste during his employment at a toxic-waste disposal site. Although the record in Vispisiano contained information allowing the plaintiff to draw a causal connection between his symptoms and occupational exposure to toxins, his doctors discouraged the belief that there was a connection sufficient to form the basis of a cause of action. The plaintiff persisted in learning the cause of his symptoms and eventually obtained the proper diagnosis. On those facts, we held that plaintiffs suit was not untimely in accordance with the discovery rule.

We did not hold in Vispisiano that medical confirmation of plaintiffs injury in a toxic tort case is necessary for a cause of action to accrue. Indeed, we carefully noted the distinction between “some reasonable medical support” and “medical confirmation,” requiring only the former for purposes of imputing discovery. Id. at 437, 527 A.2d 66. We explained: “[W]e do not insist on medical confirmation as such: a physician’s willingness to include chemical poisoning in the differential diagnosis would probably suffice, as would any other reasonably reliable source of information.” Ibid. The record here contains numerous indications of plaintiffs condition, including plaintiffs own averments contained in the workers’ compensation petition. The record amply provides “some reasonable medical support” in respect of plaintiffs’ claim; thus, our conclusion is in accord with Vispisiano.

III.

In Lopez, supra, 62 N.J. at 274-76, 300 A.2d 563, we outlined the procedures to be followed by a trial court when conducting a preliminary hearing to determine the facts underlying an asserted application of the discovery rule. We indicated that when credibility is not involved, affidavits, with or without depositions, may suffice as the basis for the trial court’s finding. Id. at 275, 300 A.2d 563. We agree with the Appellate Division that because the record here unquestionably establishes plaintiffs awareness of the essential facts, no formal hearing was necessary to resolve the discovery rule issue.

We hold that plaintiffs’ suit is time-barred by the provisions of N.J.S.A. 2A:14-2 and that the discovery rule does not operate on these facts to delay the accrual of the cause of action. Because the discovery rule, at its root, is a rule of equity, we must consider elements of fairness pertaining to all parties, not just to those asserting the benefits of the rule.

After all, statutes of limitations are statutes of repose and the principal consideration underlying their enactment is one of fairness to the defendant____ It is not every belated discovery that will justify an application of the rule lifting the bar of the limitations statute. The interplay of the conflicting interests of the competing parties must be considered.

[Id at 274-75, 300 A.2d 563.]

We sympathize with the plight of any worker exposed to hazardous substances. However, we are bound to principles of fairness and equity that serve to protect all litigants. We are satisfied that those principles require us to affirm the judgment below.

IV.

Accordingly, the judgment of the Appellate Division is affirmed.