The opinion of the court was delivered by: NEWCOMER
Defendants move for summary judgment in these cases, asserting that plaintiffs in each case did not file suit within the period allowed by the appropriate statute of limitations. Because of the similarity of legal issues among these cases, the Court will consolidate its rulings with one memorandum of law.
Plaintiffs are workers, or the representatives of decedent workers' estates, who were injured by prolonged exposure to asbestos. They have brought actions sounding in tort for the injuries sustained against the defendants, suppliers of asbestos.
Rule 56 of the Federal Rules of Civil Procedure provides in pertinent part:
(c) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
See Bryson v. Brand Insulations, Inc., 621 F.2d 556 (3d Cir. 1980); Mortensen v. First National Savings and Loan Association, 549 F.2d 884, 891 (3d Cir. 1977). The facts relevant to the timeliness of plaintiffs' actions recited below are not in dispute and summary judgment is therefore appropriate in some of the cases enumerated below.
A. Louis Grabowski and Helen Grabowski v. Turner & Newall, et al. No. 78-3046
1. Plaintiff was examined by Dr. David L. Forde on April 5, and April 8, 1976, and on May 1, 1978.
Dr. Forde's examination in 1976 revealed "abnormal pleural densities... compatible with asbestos exposure." Dr. Forde's examination in 1978 revealed a condition "quite compatible with his asbestos exposure."
2. Plaintiff testified in a deposition that Dr. Forde told him in "the spring of 1976" that "it was asbestos getting into the sides of the walls of the lungs" that caused plaintiff's symptoms. Plaintiff testified, "I don't understand medical terms too well, but he tried to explain if in some way that it was relative to asbestos, I believe. I believe he mentioned it was relative to asbestos."
3. In the same deposition, plaintiff testified as follows:
Q. When did anyone definitely tell you that you had problems directly associated with breathing asbestos, for the first time?
Q. When was that; when did you see Galgon?
Q. Did Dr. Ford ever tell you, specifically, that you had problems associated with breathing asbestos?
A. Well, he told me, I had asbestosis.
Q. Was that the first time you were told by a physician that you had a problem relating to breathing asbestos?
4. Plaintiff filed suit on September 12, 1978.
B. Carl A. DaMato and Rose DaMato v. Bell Asbestos Mines, Ltd., et al., C. A. No. 79-4337
1. Hospital records of May 13, 1975 show that plaintiff complained of persistent cough, shortness of breath, and claimed he had suffered from asbestosis for several years.
2. Records of May 1974 show that plaintiff's physician after rendering a diagnosis of plaintiff's illness advised ...