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LOWE v. JOHNS-MANVILLE CORP.

March 20, 1985

EUGENE LOWE and MARGARET LOWE, h/w
v.
JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALES CORPORATION, RAYBESTOS MANHATTAN, OWENS-ILLINOIS, CELOTEX, EAGLE-PICHER, KEENE CORPORATION, NICOLET INDUSTRIES, INC., AMATEX, PITTSBURGH-CORNING, UNARCO, ARMSTRONG WORLD, GAF CORPORATION, FIBREBOARD CORPORATION, PACOR, INC., PORTER HAYDEN, FORTY EIGHT INSULATIONS, INC., DAR INDUSTRIAL PRODUCTS, OWENS-CORNING FIBERGLAS, SOUTHERN TEXTILE COMPANY, H. K. PORTER CO.



The opinion of the court was delivered by: LUONGO

 In this lawsuit, plaintiffs Joseph Eugene Lowe and James Albert Lowe ("plaintiffs") seek recovery as personal representatives of Eugene Lowe (Lowe) for injuries sustained by Lowe as a result of his occupational exposure to asbestos. The defendants have moved for summary judgment on the ground that plaintiffs' claims are barred by the statute of limitations. Because I conclude that a genuine issue of material fact exists as to when Lowe discovered that he suffered from an asbestos-related disease, I will deny the motions.

 I.

 This case was originally filed as a personal injury action by Eugene Lowe and his wife Margaret Lowe on May 14, 1982. Mr. Lowe died testate on September 13, 1982, and the named plaintiffs were later appointed as co-administrators of his estate. A motion for substitution of parties was filed and Lowe's death was suggested upon the record on February 20, 1985. I will grant the motion for substitution. *fn1"

 II.

 The question presented by defendants' motions is whether it can be said, as a matter of law, that Lowe had "discovered" or ought to have "discovered" that he had an asbestos-related disease in excess of two years before the filing of this action. The parties agree that if Lowe could not be charged with such knowledge, application of the "discovery rule" exception to the statute of limitations would preserve plaintiffs' claim. The parties dispute the impact that a ruling in defendants' favor would have: Plaintiffs argue that, under Pennsylvania's choice of law principles, New Jersey law defines plaintiffs' substantive claims, *fn2" and that under New Jersey law, Lowe's discovery of some asbestos-related maladies would not preclude recovery for subsequently developed, far more serious disorders. *fn3" Defendants assert that Pennsylvania law governs accrual of actions in cases brought in Pennsylvania, *fn4" and that Pennsylvania precedent mandates dismissal of all asbestos-related claims if claims with respect to Lowe's initial asbestos-related injury are time-barred. *fn5"

 III.

 In support of their motions for summary judgment, defendants have presented evidence that Mr. Lowe knew or should have known in December, 1979, both that he had pleural thickening, and that his illness was related to asbestos exposure. To establish the latter proposition, defendants point out that in July, 1978 Lowe completed a "Dust Exposure Record" on which he acknowledged that he had been exposed to asbestos. With respect to Lowe's knowledge of his injury, defendants contend that in December, 1979 Lowe was informed by his employer's physician that he suffered from pleural thickening. Because I find the issue of Mr. Lowe's knowledge of his illness dispositive of the present motions, I must examine with great care the evidence upon which defendants predicate Lowe's discovery of his disease.

 Eugene Lowe was employed at Mobil Oil Corporation's refinery in Paulsboro, New Jersey at various times from 1942 until this suit was filed. Lowe's employment caused him to come in contact with asbestos products as well as the dust and fibers that accompany the use of such products. Because of his exposure to asbestos, Lowe participated in Mobil's Asbestos Surveillance Program, a medical examination program designed to monitor the effects of asbestos exposure among Mobil's employees.

 Pursuant to Mobil's Asbestos Surveillance Program, participating employees were invited to group discussions of the effects of asbestos exposure. On those occasions, employees were provided a description of asbestos-related diseases, the risks of such diseases and related complications, and they were informed of the effect of smoking on persons exposed to asbestos. In addition to group discussions, the Asbestos Surveillance Program included personal interviews between individual employees and Mobil's staff physicians for the purpose of discussing the results of the employees' physical examinations and x-rays.

 To establish that Lowe learned of his finding of pleural thickening in a group discussion and personal interview, defendants rely upon Mobil's medical records concerning Lowe's treatment as well as the deposition testimony of Dr. John P. McNally, a Mobil physician. Lowe's medical records contain two notations of particular relevance. The first is a notation dated 12/18/79, signed by Dr. McNally, which states findings for Lowe of "moderate R plaque" and "questionable fibrosis," and that Lowe was to be called in for a "group chest consult." The second, dated 12/20/79 and also signed by Dr. McNally, states that Lowe was a "participant in [a] group discussion of asbestos related disease" and that he was "informed of his own finding of pleural thickening."

 Dr. McNally's deposition testimony described both the group discussions and personal interviews. The group sessions were utilized, according to McNally, to describe the effects of asbestos exposure in layman's terms with the assistance of visual aids such as anatomic sketches. The personal interviews, which Dr. McNally termed "confessionals," were used to explain each employee's individual findings so that the individual "not only knew what the basic disease was but that he knew what his position in it was."

 When asked specifically about his contacts with Lowe, McNally stated that he remembered Lowe, that having refreshed his recollection with Lowe's medical records he recalled Lowe participating in a group discussion, that after review of his notes he found no reason to believe he conducted the group discussion in a manner different from his ordinary practice, and that there would be no reason for his notation of having informed Lowe of his finding of pleural thickening if he had not conducted a personal interview with Lowe on December 20, 1979.

  Plaintiffs argue that whether McNally informed Lowe of his pleural thickening remains a genuine issue of material fact for four reasons: First, plaintiffs argue that a jury should evaluate Dr. McNally's rather equivocal answers with respect to his specific conversations with Mr. Lowe. Critical to plaintiffs' argument in this regard was McNally's admission in his deposition that he did not specifically remember his personal interview with Mr. Lowe. Second, plaintiffs dispute that the information conveyed by Dr. McNally sufficiently apprised Lowe that he was suffering from an asbestos-related disease. Plaintiffs argue that McNally so minimized Lowe's findings that it would be unreasonable to charge Lowe with discovery of his illness. Third, plaintiffs point out that subsequent entries in Lowe's medical records indicate that Lowe was to be informed of similar findings in September, 1980. This, plaintiffs argue, would be superfluous if Lowe had actually been so informed in December, 1979. Finally, as evidence of Lowe's state of mind prior to 1982, plaintiffs have proffered affidavits from Margaret Lowe, and James Lowe (Eugene Lowe's son) and Dr. Rudolph T. DePersia (Eugene Lowe's personal physician). Mrs. Lowe's affidavit states that she and her husband discussed his physical examinations including the December, 1979 examination, that Mr. Lowe told her the results of such examinations were good, and that Mr. Lowe did not mention having an asbestos-related disease prior to his hospitalization in March, 1982. James Lowe's affidavit states that, when Mr. Lowe became ill in March, 1982, he went to ...


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