The Pennsylvania Supremes Adopt a Two-Injury Rule with a Twist
Asbestos is a law unto itself. There are plenty of reasons why. Most people exposed to it never develop a debilitating injury; for those that do, the latency period between exposure and debilitating harm can be over twenty years. Mesothelioma is said by many to be a "signature" injury that results from asbestos exposure. As a result of these and other factors, the law surrounding asbestos has developed somewhat differently than traditional product liability law.
This is particularly true with the statute of limitations. Statutes of limitations are important rules. They serve to prompt plaintiffs to bring claims while evidence and memories are are still fresh and cases are capable of being adjudicated. They also provide defendants with finality -- repose.
Asbestos, however, presented courts with a Hobson's choice. If the law required plaintiffs to bring suit upon discovery of non-debilitating injury relating to asbestos -- such as the condition "asbestosis," which can involve an asymptomatic thickening in the lungs -- then the plaintiffs would not recover for more serious injuries that they might develop ten, twenty, or even thirty years down the road. But, if the plaintiffs waited to sue until they suffered physical symptoms, they would face motions to dismiss on statute of limitations grounds, arguing that they had first "discovered" their injuries and started the statute of limitations running years before.
States have approached this problem differently. Some have created registries where plaintiffs who are asymptomatic may file a notice when they first discover their potential cause of action, but then may actually bring suit only if they develop physical injuries. Others, like Pennsylvania, have adopted the "two disease rule," which allows an asbestos plaintiff to sue for non-malignant harm, and subsequently to sue for damages if he develops asbestos-related lung cancer.
Recently the Pennsylvania Supreme Court added a twist to its special asbestos "two disease rule," allowing a plaintiff to sue for asbestos-related lung cancer a defendant that it had never originally identified or sued for non-malignant harm decades before. See Abrams v. Pneumo Abex Corp., No. 17 EAP 2008, Slip op. (Pa. Oct. 21, 2009).
In Abrams, plaintiffs were diagnosed with nonmalignant asbestos-related disease in 1984 and 1985. Within two years, they filed complaints against a host of defendants seeking damages for increased risk and/or fear of cancer. The lawsuits were settled in 1993.
In 1996, the Pennsylvania Supreme Court clarified the "two disease rule" that had been applied by the lower courts of that state. It concluded that a person's diagnosis of asymptomatic pleural thickening did not start the statute of limitations running on a claim for "nonmalignant physical impairment." Simmons v. Pacor, Inc., 674 A.2d 232, 237 (Pa. 1996). And it, of course, would not impact the statute of limitations for a later-developed cancer.
But it also held that asymptomatic plaintiffs could no longer sue for emotional distress caused by a fear of cancer because it would "erode[] the integrity of and purpose behind the two disease rule." Id. at 239. Rather, those who develop cancer can recover for their emotional distress when they bring their cancer claim. The court's holding in Simmons, however, did not alter the plaintiffs' 1993 settlement of their fear of cancer claims.
In 2002, plaintiffs were diagnosed with lung cancer. They filed their second suits in 2003 against a variety of companies -- including a new defendant, Crane Company, that had not been sued in the previously-settled cases.
Crane moved for summary judgment, arguing that the statute of limitations barred plaintiffs' claims because plaintiffs had not identified and sued Crane within two years of first discovering that they had an asbestos-related claim. Crane argued that the risk of cancer claims brought by plaintiffs in the early 1980s were premised on the assertion that plaintiffs would later contract cancer and thus involved the same malignant asbestos-related disease as the 2003 suits.
The Pennsylvania Supreme Court rejected Crane's argument:
We reiterate that Appellants' cause of action against Crane is an individual one, separate and distinct from the causes of action asserted by Appellants against other defendants in the 1980s; thus, the fact Appellants previously asserted risk of cancer claims against other defendants does not preclude a subsequent timely action against Crane for actual cancer. . . .
We reject the Superior Court's conclusion that Appellants' present claims for damages for lung cancer are identical to their previously-litigated risk of cancer claims, and thus had to have been raised at the same time as their risk of cancer claims. Cancer and non-cancer diseases clearly give rise to separate claims. Appellants' causes of action for asbestos-related lung cancer accrued in December 2002, when they were diagnosed with lung cancer. Furthermore, Appellants' claims for damages for lung cancer are clearly separate and distinct from any claims for risk or fear of cancer that may have existed in the 1980s. Accordingly, the statute of limitations for Appellants' claims against Crane for lung cancer did not begin to run until December 2002.
Slip op. at 18-19 (citations omitted).
Justice Saylor dissented on the ground of repose. Plaintiffs had an obligation to name all defendants who were responsible for their harm in their first suit. When they failed to do so and the statute of limitations ran, "Crane became entitled to the repose afforded by the statute of limitations." Slip op., Dissent at 4. According to Justice Saylor, "when a party's right to institute and maintain a suit arises, the legal landscape is fixed in the sense that recognized causes of action in favor of the injured party may not subsequently be removed. By the same token, defendants and potential defendants also become vested in the defenses available to them at that juncture." Id. (citations omitted). Thus, when Crane was not named in the original suit, "it was able to rely upon the statute of limitations in order to arrange its affairs going forward." Id. at 6.
What neither the majority nor the dissent addressed was how the majority's rule advanced the purposes of the statute of limitations. Clearly, it does not. Plaintiffs' earlier lawsuit served to preserve evidence of product identification and presented the defendants who were sued there with the opportunity to challenge documents and recollections at a time that was relatively close to exposure. To allow a plaintiff who previously had the opportunity to name all potential defendants the chance to add new potential defendants nearly 15 years later is fundamentally unfair. Crane -- the new defendant -- has no ability to defend itself in the same way. Pennsylvania's new twist on the two disease rule is fundamentally at odds with the evidence preservation goals of the statute of limitations.
But, as they say, asbestos is a law unto itself.
