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Cowgill v. Raymark Industries Inc.

amended january 8 1986.: December 30, 1985.

STELLA COWGILL, EXECUTRIX OF THE ESTATE OF GEORGE COWGILL, DECEASED AND INDIVIDUALLY, APPELLANT
v.
RAYMARK INDUSTRIES, INC., ET AL., H.K. PORTER COMPANY, INC., PACOR, INC., EAGLE-PICHER INDUSTRIES, J.P. STEVENS & COMPANY, GARLOCK, INC., PRECISION SEAL DIVISION, SOUTHERN TEXTILE COMPANY, ARMSTRONG WORLD INDUSTRIES, INC., NICOLET, INC., KEENE CORPORATION, OWENS-ILLINOIS GLASS COMPANY, CELOTEX CORPORATION, GAF CORPORATION, FIBREBOARD CORPORATION, OWENS-CORNING FIBERGLAS CORPORATION, FORTY-EIGHT INSULATION, INC., PITTSBURGH CORNING CORPORATION, C.E. REFRACTORIES, APPELLEES V. PORTER HAYDEN, CO. LAFAVORITE RUBBER MFG., CO., APPELLEES



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civ. No. 83-4196.

Author: Adams

Before: ADAMS, Acting Chief Judge, GIBBONS and STAPLETON, Circuit Judges.

Opinion OF THE COURT

ADAMS, Acting Chief Judge.

This appeal in a diversity case presents the question whether appellant's claims under state survival and wrongful death acts were correctly dismissed on statute of limitations grounds.

Appellant's husband, a pipefitter who worked with asbestos-containing products for over thirty years, died shortly before she brought this lawsuit. The district Court determined that, based on the undisputed facts in the record, the decedent should have know that he had an asbestos-related injury over two years before the filing of this suit. It therefore held that appellant's action was time barred, and granted summary judgment for the defendant asbestos companies. We conclude that, viewing the record in the light most favorable to appellant, as we must on a motion for summary judgment, it cannot be said as a matter of law that decedent should reasonably have know he had an asbestos-related injury more than two years before appellant filed her suit. Accordingly, we will vacate the grant of summary judgment and remand.

I.

George Cowgill, the decedent of appellant Stella Cowgill, began working for Mobile Oil Company as a pipefitter at its refinery in Paulsboro, New Jersey in 1926. During his employment he handled asbestos-containing pipe covers made by several manufacturers. Mr. Cowgill left his job at Mobile in 1961.

Eighteen years later, in 1979 Mr. Cowgill received a letter and a telephone call from Mobile. The extent and nature of the information communicated to decedent in the letter and call are disputed, but it is agreed by all parties that Mr. Cowgill was invited to return to the Paulsboro refinery for a physical examination at Mobile's expense. Mr. Cowgill accepted this offer, and on November 16, 29 and 30, 1979, he was examined by a physician employed by Mobile, and a number of tests were performed on his blood and lung capacity. That the physician consulted with Mr. Cowgill after his examination and testing is not disputed, although the parties disagree as to what Mr. Cowgill was told by the physician.

Decedent returned to the Mobile plant in April 1980 for a second physical examination, and in November 1980 for a third examination. His medical records indicate that, on November 30, 1980, he participated in a group discussion arranged by Mobile. Defendants presented evidence that this discussion was one of the series of group presentations regarding asbestos-related diseases that Mobile had arranged for its retired and soon-to-retire employees. Mr. Cowgill, who was deposed in December of 1982 before his death in March 1983, had not clear recollection what was discussed at the group meeting he attended or exactly when it took place, although he admitted having been present at the meeting. In November 1981, Mr. Cowgill was formally diagnosed as having asbestosis. The diagnosis was communicated to him in a letter dated November 11, 1981, and appellant does not deny that, as of that date, decedent was aware of his asbestos-related injury.

Mr. Cowgill filed a personal injury suit in the Court of Common Pleas for Philadelphia County in August 1982.*fn1 In his complaint, he alleged that his asbestosis was caused by exposure at the Mobile Oil refinery. Named as defendants were a number of asbestos manufacturers.

In September 1982, the month after he filed his state court action, Mr. Cowgill was diagnosed as having carcinoma of the lungs. He died of lung cancer on March 3, 1983. In response to preliminary objections filed by defendants, the state court dismissed his lawsuit on March 30, 1983 on grounds of forum non conveniens.*fn2

Stella Cowgill, George's widow, filed this suit in the District Court for the Eastern District of Pennsylvania, under the New Jersey wrongful death and survival acts, N.J. Stat. Ann. § 2A:15-3 (West Supp. 1985) and § 2A:31-1 (West 1952), on August 26, 1983. Jurisdiction was predicated on 28 U.S.C. § 1332(a) (1982) by reason of the diversity of citizenship of the parties. Eighteen asbestos manufacturers were named as defendants, and two additional manufacturers were impleaded as third party defendants.

Armstrong World Industries, one of the defendants in this action, moved for summary judgment on behalf of all defendants on April 30, 1984. Armstrong's motion alleged that appellant's suit was governed by the Pennsylvania two-year statute of limitations applicable in personal injury actions, 42 Pa. Cons. Stat. Ann. § 5524(2) (Purdon Supp. 1985), and that the statute began to run on November 30, 1979, at the time of Mr. Cowgill's first physical examination by a Mobile doctor. Armstrong's motion thus requested that appellant's suit be dismissed as time barred. Appellant filed a response to Armstrong's motion on May 14, 1984, and Armstrong, on behalf of all defendants, responded to her answer on May 25, 1984.

After the discovery deadline had passed and a joint pretrial memorandum had been filed, on November 16, 1984, defendant Owens-Corning Fiberglas Corporation moved for permission to reopen discovery to take the deposition of George Cowgill's personal physician, Dr. Brennan. The motion was granted and Dr. Brennan was deposed on January 4, 1985. All parties received copies of the transcript shortly after the deposition was taken. However, although defendants' motion for summary judgment was still pending, Dr. Brennan's deposition was never filed with the district court.

On January 24, 1985, the district judge granted summary judgment for defendants. He held that, based on the undisputed facts in the record, and drawing all inferences favorable to appellant, decedent should reasonably have know as of November 1979 that he had an asbestos-related injury caused by his exposure to asbestos at the Mobil Oil refinery. The court thus concluded that the two-year ...


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