asbestos-as the complaint before me. Thus, at first glance, this claim is barred.
One of plaintiffs' contentions, however, might serve to narrow the scope of the first claim. They argue that (1) the cancer alleged in the current action was not discoverable until after the first suit was brought, and (2) that a cause of action for cancer accrued after the first suit was brought. Therefore, one might conclude that judgment on the first suit cannot bar an action for cancer which was then undiscoverable. Because the first proposition is a disputed material fact, I shall take it as true for purposes of this motion. The second argument is questionable.
But, even assuming arguendo its correctness, the proposed conclusion does not follow.
The most important reason for rejecting the conclusion is that the prior complaint embraces the injury alleged in the subsequent suit. The state complaint includes all types of then-existing and future bodily injuries caused by asbestos exposure. Both complaints specifically allege "risk of mesothelioma and other cancers." The only relevant difference between the pleadings is that the second complaint mentions "(adenocarcinoma) of the transverse colon." In this respect, the injuries alleged in the second complaint are not different; they are merely more specific. Had plaintiffs prevailed in the state court action, they would have been entitled to recover for all cancers in that action, and a subsequent action would have been prevented by the claim-preclusion rule of "merger." See, e.g., Restatement (2d), supra note 3, § 47(a) (T.D. No. 1). Because defendants prevailed, the symmetric rule of "bar" requires the same result. See, e.g., id. § 48. Furthermore, medical knowledge of the effects of asbestos exposure is such that someone contracting one asbestos-related disease should know that asbestos exposure increases the risk of other latent injuries, and that medical knowledge may entitle plaintiffs to damages for the increased risk. See § 61.1, Comment c (T.D. No. 5, 1978). That plaintiffs and their attorneys both were aware of this risk, including the specific risk of unknown cancers, and thought they were entitled to recovery for the risk is reflected in the language of the 1979 complaint.
Thus, a comparison of the complaints compels the conclusion that judgment on the first bars suit on the second.
This conclusion is supported by two rules which help define the scope of the claim. The first is that a transaction may be single despite different harms. See generally id. § 61, Comment c; Restatement 1st, supra note 3, § 62, Comment e. Thus, discovery of a different harm is not enough to save plaintiffs from claim preclusion. Indeed, damages for injury caused by an actionable wrong extend to future increased damages. Restatement (2d), supra note 3, § 61.1, Comment c (T.D. No. 5, 1978).
The second rule interpreting the scope of a claim is that claim preclusion applies where evidence needed in the second suit would have sustained the prior action. Restatement (1st), supra note 3, § 62, Comment e. A glance at the complaints demonstrates that the evidence required for the federal action would have also sustained the state action.
In fact, the cancer which plaintiffs focus on here might well have caused Judge Takiff to rule the other way, if only plaintiffs had brought that information to his attention. The plaintiffs knew of the newly discovered injury no later than August, 1980, at least four months prior to the first motion for summary judgment on the statute of limitations. Likewise, plaintiffs' counsel were aware of the diagnosis at least as early as the filing of the federal complaint, which occurred two months prior to Judge Takiff's decision. Thus, the failure to present this evidence in the prior action results from a deliberate bypass of available state process.
Plaintiff suffers from cancer allegedly caused by defendants. He cuts a sympathetic figure. It is difficult to tell someone in his position that he lacks a remedy at law. It is my duty, however, to decide cases without sympathy, by reference to the appropriate legal principles. Under those principles, the current claim is within the scope of the prior claim. None of the exceptions to the rules of merger and bar applies. See generally Restatement (2d), supra note 3, § 61.2 (T.D. No. 5, 1978). Defendants therefore are entitled to judgment on the ground that this action is barred by a prior final judgment on the same claim.