plaintiff where the injured person had sought and received worker's compensation on the basis of asbestos-related impairments some fifteen years before suit was filed. In that case, conclusive evidence of the plaintiff's knowledge of his disease was established through the plaintiff's own statements. Likewise, in Cianfrani v. Johns-Manville Corporation, 334 Pa. Super. 1, 482 A.2d 1049 (1984), the court affirmed a summary judgment where, inter alia, the plaintiff admitted that he was advised of his asbestosis and filed a "Federal Employees Notice of Injury and Occupational Disease" four years before bringing suit. To similar effect is Berardi v. Johns-Manville Corporation, 334 Pa. Super. 36, 482 A.2d 1067 (1984), a case in which summary judgment was upheld where the decedent, seeking worker's compensation, admitted that he had asbestos-related lung disease four years before suit was brought, and wrote a letter to the Department of Labor explaining the connection between asbestos exposure and his illness more than two years before filing of the complaint.
In the leading case Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 471 A.2d 493 (1984), the court affirmed summary judgment where the plaintiff's deposition established that, also in connection with a disability determination, he knew of his "asbestosis lung" and its cause more than two years before suit was filed. In Volpe v. Johns-Manville Corporation, 323 Pa. Super. 130, 470 A.2d 164 (1983), the court sustained an order granting summary judgment where the plaintiff testified that, more than three years before filing suit, he was informed that he had asbestosis and read articles describing the dangers of exposure to asbestos. Finally, in Staiano v. Johns-Manville Corp., 304 Pa. Super. 280, 450 A.2d 681 (1982), the court affirmed the grant of summary judgment where the plaintiff filed a "Federal Employees' Notice of Injury or Occupational Disease" form on which he claimed injury from occupational exposure to asbestos in 1972, approximately five years before suit was filed.
It is apparent from this review of the Superior Court's cases, that the "discovery rule" has not been construed as an authorization for judicial fact-finding of the underlying events upon which defendants seek to charge an injured party with discovery of his injury and its cause. The Superior Court, in accord with federal practice, has permitted summary judgment only where the factual record left no genuine dispute as to when the critical information was imparted to the plaintiff.
In the case at bar, I cannot determine as a matter of law that Mr. Lowe had the requisite notice of his injury in December, 1979. That determination can only be made after an assessment of the accuracy of Dr. McNally's conclusion that in Lowe's case he followed his usual practice of informing the employee of his findings, describing their complications, and making appropriate inscriptions in the employee's medical record. Making such an assessment is a function for a jury.
Defendants properly assert that the test for applicability of the discovery rule includes a heavy burden of inquiry upon the party seeking to invoke it. See Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983); Cathcart v. Keene Industrial Insulation, 471 A.2d at 500; Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, slip op. at 8 (3d Cir. 1985); O'Brien v. Eli Lilly & Company, 668 F.2d 704 (3d Cir. 1982); Cowgill v. Raymark Industries, Inc., C.A. 83-4196 (E.D. Pa. Feb. 1, 1985) (Huyett, J.). As the Pennsylvania Supreme Court has stated, "The 'discovery rule' is . . . an exception, and arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause." Pocono International Raceway, 468 A.2d at 471 (emphasis in original). In the context of this case, however, defendants' reference to Lowe's duty to inquire puts the cart before the horse: Lowe was obligated to discover the fact of his injury only if he had been apprised of facts sufficient to put him on notice that he suffered from a disease. The current record does not establish such notice. Lowe's knowledge of his exposure to asbestos is insufficient in the absence of proof beyond genuine dispute that he also knew he had been injured. For the reasons discussed above, I conclude that it remains a genuine issue of fact whether Dr. McNally informed Lowe of his asbestos-related illness. Moreover, defendants have not established that information from alternative sources should have put Lowe on notice of his injury. Certainly Lowe could not have been expected on his own to diagnose his pleural thickening -- a latent disease apparently in its initial stages.
Nor have defendants argued that Lowe's case of pleural thickening curtailed his life activities such that he should have been put on guard of a respiratory ailment.
In short, a physician's guidance was necessary to inform Lowe that the effects of his exposure to asbestos had become manifest in a disease. Because that underlying fact has not been established, I cannot say as a matter of law that Lowe should have investigated and discovered the fact of his injury more than two years before suit was filed.
Because I will deny defendants' motions, I need not presently resolve the effect on plaintiffs' mesothelioma claim of a ruling that plaintiffs' pleural thickening claim is time-barred. That question, which has become debated under the term "second disease rule," would be squarely presented by a jury verdict in favor of defendants with respect to Mr. Lowe's discovery of his pleural thickening. In view of the need for a jury trial at least for the issues discussed in this opinion, and the possibility that our Court of Appeals will decide that issue in Ross v. Johns-Manville Corp., appeal docketed, No. 84-1528 (3d Cir.), I conclude that reserving judgment on that issue would be appropriate. Nevertheless, in the interest of judicial economy, it will be necessary at trial to require the jury to specify at least: (1) whether Lowe discovered his injury and its cause more than two years before suit was brought, (2) the amount of damages for plaintiffs' mesothelioma claim, and (3) the total amount of damages. In that fashion, the verdict can be adjusted according to any intervening decisions of the Court of Appeals or the trial judge's rulings on post-trial motions.
This 20th day of March, 1985, it is ORDERED:
1. Plaintiffs' Motion for Substitution of Joseph Eugene Lowe and James Albert Lowe as Plaintiffs in place of Eugene Lowe is GRANTED;
2. Defendants' Motion for Summary Judgment is DENIED.