and because all of plaintiff's exposures to the remaining defendants' products occurred in New Jersey, New Jersey law should apply to plaintiff's claims against the remaining defendants if those claims are separable from plaintiff's claims against the other defendants. Pennsylvania has no clear interest in the application of its law to a tort committed outside Pennsylvania by nonPennsylvania residents which caused injury to a nonPennsylvania resident. Moreover, Pennsylvania has no significant relationship to the injury caused to Mr. Kelly by the remaining defendants within the meaning of the Second Restatement.
This analysis is complicated, however, by the question whether a Pennsylvania court would apply Pennsylvania's choice of law rules separately to plaintiff's claim against each defendant. Plaintiff's injury is not easily divisible. Mr. Kelly has allegedly suffered two diseases as the result of a lifetime of exposure to asbestos in New Jersey, Pennsylvania, and other states.
A Pennsylvania court applying Pennsylvania's choice of law rule to plaintiff's claim on the basis of the totality of his exposures to asbestos might conceivably opt for Pennsylvania substantive law.
It appears, however, that the Court of Common Pleas for Philadelphia County has taken the position that in a multi-defendant asbestos case, the plaintiff's separate claims are to be treated as discrete causes of action. This is the lesson to be learned from that court's action in severing all asbestos claims against defendants petitioning under the Bankruptcy Act. See Matthews v. Johns-Manville Corp., 307 Pa. Super. 300, 453 A.2d 362 (1982) (quashing appeal). Our court has followed that lead. See Order of Judge Troutman (March 2, 1984); see also Gold v. Johns-Manville Corp., 723 F.2d 1068 (3d Cir.1983)(dismissing appeal).
The separation of one defendant, or set of defendants, from the rest of an asbestos action shows that an asbestos claim does not form an indivisible whole. Therefore, the claims presented here relate only to the exposure of plaintiff in New Jersey to asbestos products manufactured or distributed outside of Pennsylvania by the four remaining defendants, none of which has its principal place of business in Pennsylvania. Accordingly, it would seem that a Pennsylvania court would apply New Jersey law to plaintiff's claims against each of the four remaining defendants.
2. Statute of Limitations
a. Applicable Standards
National Gypsum has moved for summary judgment on the ground that this action is barred by Pennsylvania's two-year statute of limitations for personal injury actions, 42 Pa.Cons.Stat.Ann. § 5524 (Purdon Supp.1983). In the alternative, National Gypsum takes the position that this action would similarly be barred by New Jersey's two-year statute of limitations for like actions, N.J.Stat.Ann. 2A:14-2 (West 1952). All other remaining defendants have joined in National Gypsum's motion.
Both Pennsylvania and New Jersey have adopted the "discovery rule" for the beginning of the limitation period. In either state, the limitation period runs from the time that "the plaintiff has discovered his injury, or, in the exercise of reasonable diligence, should have discovered his injury." Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493, 500 (1984) (asbestos case); accord Jarusewicz v. Johns-Manville Products Corp., 188 N.J.Super. 638, 458 A.2d 156, 158 (Law Div.1983) (asbestos case).
The difference between the two states' rules lies in their application of the limitation bar. "In Pennsylvania a plaintiff's claims for all injuries arising out of the same tortious conduct of a defendant must be brought within two years of the time that the plaintiff knows, or in the exercise of reasonable diligence should know, of his initial injury and that the injury was caused by someone's wrongful conduct." Cathcart, 471 A.2d at 507 (emphasis in original). Under this rule, if plaintiff discovers that he has asbestosis more than two years before he commences an action and then later develops cancer which he attributes to exposure to asbestos, both plaintiff's asbestosis claim and his cancer claim are barred. On the other hand, our Court of Appeals has held that New Jersey follows the opposite rule, precluding the asbestosis but admitting the cancer claim. Goodman v. Mead Johnson & Co., 534 F.2d 566, 574 (3d Cir.1976). Since the decision in Goodman, no reported opinion of a New Jersey court has questioned Goodman's holding.
Because I have held that New Jersey substantive law applies to plaintiff's claims against the remaining defendants, New Jersey's definitions of those claims for the purpose of applying its statute of limitations apply as well. Thus, Goodman, and not Cathcart, provides the rule in this case.
As discussed more fully below, defendants contend that Mr. Kelly, in the exercise of reasonable diligence, should have known of his asbestosis more than two years before he commenced this action on December 21, 1981. Plaintiff, however, asserts claims for two allegedly asbestos-related diseases: asbestosis and epidermoid carcinoma. Defendants do not contend that Mr. Kelly should have known of his cancer's relation to asbestos exposure more than two years before Mr. Kelly commenced this action. Accordingly, under New Jersey law, Mr. Kelly's cancer claim cannot be barred by the statute of limitations.
In support of their claim that Mr. Kelly's asbestosis claim is barred by the statute of limitations, defendants adduce two forms of evidence. The first is a letter from Jeffrey A. April to Dr. Robert L. Krasney dated October 15, 1975. The second is plaintiff's deposition testimony of July 2, 1984. For reasons elaborated below, Mr. April's letter does not support defendants' contentions. However, Mr. Kelly's deposition testimony could not leave a reasonable jury in doubt that Mr. Kelly, in the exercise of reasonable diligence, should have known of his injury from exposure to asbestos in 1975 and that Mr. Kelly knew in 1975 that his injury was actionable.
b. April Letter
Jeffrey April, who plaintiff claims was not an attorney, worked for an Atlantic City law firm that Mr. Kelly had consulted concerning his divorce. Kelly Deposition at 196.
Dr. Krasney, now deceased, was an internist at the Hospital of the University of Pennsylvania who treated Mr. Kelly for heart ailments. Kelly Deposition at 197. National Gypsum has submitted a letter from Mr. April to Dr. Krasney which reads as follows:
October 15, 1975