Wagner v. Various

801 F. Supp. 2d 333, 2011 U.S. Dist. LEXIS 49097
CourtDistrict Court, E.D. Pennsylvania
DecidedMay 6, 2011
DocketCivil Action No. 08-87085
StatusPublished
Cited by1 cases

This text of 801 F. Supp. 2d 333 (Wagner v. Various) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wagner v. Various, 801 F. Supp. 2d 333, 2011 U.S. Dist. LEXIS 49097 (E.D. Pa. 2011).

Opinion

[334]*334MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Before the Court is Plaintiffs Motion for Reconsideration of this Court’s grant of summary judgment in favor of Defendant Volkswagen Group of America, Inc. (“Defendant”).

I. BACKGROUND

Defendant moved for summary judgment on the basis that Plaintiffs claims are time-barred. Plaintiff was diagnosed with lung cancer in 1985, but did not bring suit until 2006, outside of the statute of limitations for personal injury cases under Mississippi law. (See doc. no. 24.) The Court granted Defendant’s motion, and several Defendants’ joinders, as unopposed, as Plaintiff had failed to file a timely response. (See doc. no. 92.)

Plaintiffs Motion for Reconsideration asks the Court to treat Defendant’s Motion for Summary Judgment as a partial motion for summary judgment as to Plaintiffs lung cancer claims, but argues that Plaintiffs asbestosis claims are not time-barred.1 Plaintiff was not diagnosed with asbestosis until October 14, 2003, and it is undisputed that he filed his claim within three years of this diagnosis. (Pl.’s Mot., doc. no. 95, at 2-3.) Plaintiffs Administrative Order 12 submissions contain separate diagnosing information for lung cancer and asbestosis.

II. LEGAL STANDARD

A Motion for Reconsideration will be granted when the party seeking reconsideration establishes “(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court ... [issued its previous decision]; or (3) the need to correct a clear error of law or fact or prevent manifest injustice.” Max’s Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999); North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995); United States v. Cabiness, 278 F.Supp.2d 478, 483-84 (E.D.Pa.2003) (Robreno, J.). Further, “[b]ecause federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly.” Cont’l Cas. Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943 (E.D.Pa.1995).

Plaintiff asserts that granting summary judgment in favor of Defendant amounted to manifest injustice, as the issue of Plaintiffs asbestosis claims was “not raised by Defendant” and Plaintiffs “viable asbestosis claims still remain.” (Pl.’s Mot., doc. no. 95, at 3.) Indeed, this specific issue was not squarely addressed in Defendant’s Motion for Summary Judgment, which discussed only lung cancer claims, and was therefore not considered by the Court in granting summary judgment in favor of Defendant.

However, the question of whether Mississippi is a “two-disease” state was addressed by both parties in briefing the instant Motion for Reconsideration, and is ripe for consideration.

III.DISCUSSION

The timeliness of Plaintiffs asbestosis claim is contingent on whether Mississippi has adopted the two-disease rule, that is, whether lung cancer and asbestosis are separate and divisible injuries, or if the clock began to run on all of Plaintiffs [335]*335asbestos-related claims with his first diagnosis. See Kiser v. A.W. Chesterton Co., 11-60039, doc. no. 51 (explaining that “under the indivisible cause of action theory, the statute of limitations for all asbestos-related diseases begins to run at the time of the initial diagnosis or discovery, depending on the jurisdiction, for any asbestos-related disease.”). Although the Mississippi Supreme Court has not squarely decided this issue, there is sufficient authority to Erie predict with some measure of confidence that Mississippi is a “two-disease” state.

First, in Gentry v. Wallace, the Mississippi Supreme Court cited with approval the decision in Jackson v. Johns-Manville Sales Corp., 727 F.2d 506 (5th Cir.1984) (“Jackson I”), in which the Fifth Circuit Court of Appeals determined that under Mississippi law, asbestosis and cancer are separate and distinct diseases, with separate statute of limitations periods. 606 So.2d 1117, 1122 (1992). The Mississippi Supreme Court stated, in a medical malpractice context, that “[i]t would disadvantage a plaintiff unfairly and disserve judicial economy to measure the limitations periods for future diseases from the time of manifestation of a separate and distinct disease.” Gentry v. Wallace, 606 So.2d at 1122 (citing Jackson I). In addition to fairness to the plaintiff, the court noted that allowing plaintiffs to recover for cancer that had not yet occurred, and may never manifest, would serve to make manufacturers “insurers of them products,” contrary to the public policy of the state of Mississippi. Id. at 1122. The Gentry court concluded that wrongful death and personal injury actions arising out of the same alleged negligent medical care have separate statute of limitations periods because the claims “accrue” at separate times: the former action upon the death, and the latter upon the discovery of negligent conduct. Id. The Court cited Jackson I to support the proposition that divisible causes of action are subject to separate statute of limitations periods.

At the time the Mississippi Supreme Court relied on Jackson I, the Fifth Circuit Court of Appeals, sitting en banc, had reversed the Jackson I holding. Following the Mississippi Supreme Court’s denial of the Fifth Circuit’s certification of questions, the Fifth Circuit was required to make an “Nm-guess” as to Mississippi state law on this issue and in doing so reversed Jackson I. In Jackson v. Johns-Manville Sales Corp., 781 F.2d 394 (5th Cir.1986) (“Jackson II"), the court held that plaintiff could recover fear of cancer damages but that, having done so, he could not later recover more if he developed cancer. 781 F.2d 394 at 412. However, the court specifically stated that it was not deciding when plaintiffs statute of limitations for cancer claims began to run, as the issue was not before the court and was therefore “an issue which we need not decide.” Id. at 412, n. 21. Rather, the court simply held that a plaintiff is “permitted to recover for all probable future manifestations” of exposure to asbestos upon bringing a claim for asbestosis, but not that a plaintiff must bring a fear of cancer claim at the outset or lose the right to recover for cancer at a later time. Id. at 412 (emphasis added).

Defendant relies on Jackson II to support its contention that Mississippi is a “one-disease” state. However, the Mississippi Supreme Court, given the choice between Jackson I (separate diseases) and Jackson II (leaning towards one disease), apparently chose to endorse Jackson I as a correct statement of Mississippi law.

Second, in more recent toxic tort eases, the Mississippi Supreme Court has confirmed that “Mississippi has not recognized a cause of action for fear of future [336]

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Related

In Re Asbestos Products Liability Litig.(no. Vi)
801 F. Supp. 2d 333 (E.D. Pennsylvania, 2011)

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801 F. Supp. 2d 333, 2011 U.S. Dist. LEXIS 49097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-various-paed-2011.