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GUNSALUS v. CELOTEX CORP.

November 23, 1987

John R. Gunsalus
v.
The Celotex Corporation, et al.



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 Plaintiff, John R. Gunsalus, filed a personal injury action against sixteen manufacturers of asbestos products (the "asbestos defendants"), the Tobacco Institute and the American Tobacco Company (or American Brands, Inc.) (the "Tobacco defendants"); he alleges that the synergistic effect of smoking cigarettes and working with substantial quantities of asbestos caused him to develop lung cancer. Now before the court are the motion of the Tobacco Institute for judgment on the pleadings and/or summary judgment and the motion of American Tobacco Company for summary judgment.

 The Tobacco Institute, incorporated in 1958, is a trade association of the tobacco industry. It disseminates information about the tobacco industry but has never manufactured, sold, or distributed tobacco or any tobacco product. The American Tobacco Company manufactures Pall Mall cigarettes; plaintiff alleges that he has smoked Pall Mall cigarettes since approximately 1942 when he was eleven years old.

 The first four counts of plaintiff's complaint assert claims against the asbestos defendants only. Counts five through nine assert claims against the American Tobacco Company for negligence (Count V), breach of warranty (Count VI), negligent and fraudulent misrepresentation (Count VII), strict liability (Count VIII) and violation of the Pennsylvania Unfair and Deceptive Practices Act (Count IX). Counts ten and eleven assert claims against the Tobacco Institute for negligent and fraudulent misrepresentation (Count X) and for violation of the Pennsylvania Unfair and Deceptive Practices Act (Count XI). Count twelve is asserted against all defendants and incorporates all prior counts.

 In light of Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir. 1986), cert. denied, 479 U.S. 1043, 107 S. Ct. 907, 93 L. Ed. 2d 857 (1987), plaintiff now concedes that all of his claims against the Tobacco Institute and the American Tobacco Company challenging "the adequacy of the warning on cigarette packages or the propriety of a party's actions with respect to the advertising and promotion of cigarettes," Id. at 187 (footnote omitted), since January 1, 1966 are preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331 et seq.1 See also Stephen v. American Brands, Inc., 825 F.2d 312 (11th Cir. 1987); Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir. 1987).

 Plaintiff still seeks to proceed against the Tobacco Institute on a modified version of Count X that asserts "good samaritan" liability under §§ 323 and 324A of the Restatement (Second) of Torts. See Plaintiff's Memorandum of Law in Response to the Tobacco Institute's Motion for Judgment on the Pleadings and/or Summary Judgment at 1-2, 13-14. The Tobacco Institute moves for judgment on the pleadings and/or summary judgment. For the reasons stated below, the Tobacco Institute's motion is granted.

 The court is faced with some confusion concerning the theories on which plaintiff seeks to proceed against the American Tobacco Company, but they apparently include negligence, strict liability, misrepresentation and breach of warranty. The negligence and strict liability claims are based on "good samaritan" liability, design defect and risk-utility, as well as failure to warn prior to January 1, 1966. The American Tobacco Company moves for summary judgment. For the reasons stated below, American Tobacco Company's motion for summary judgment is granted in part and denied in part.

 First, we consider whether the statute of limitations had run as to the Tobacco defendants on the date this action was instituted. Next we consider whether viable claims have been stated for "good samaritan" liability. Finally, we consider if there are genuine issues of material fact as to the remaining claims and whether the American Tobacco Company is entitled to judgment as a matter of law.

 I. Statute of Limitations

 The Tobacco defendants both move for summary judgment on the ground that plaintiff's claims are barred by Pennsylvania's statute of limitations. Under Fed.R.Civ.P. 56, summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 
Since the applicability of the statute of limitations usually involves questions of fact for the jury, defendants bear a heavy burden in seeking to establish as a matter of law that the challenged claims are barred.

 Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 498 (3d Cir. 1985).

 A. Personal Injury Claims

 Pennsylvania's two-year statute of limitations for personal injury actions applies to all of plaintiff's claims against the tobacco defendants except the breach of warranty claims. 42 Pa.C.S.A. § 5524(2) (Purdons 1987).

  Normally, a claim arising under Pennsylvania law accrues at "the occurrence of the final significant event necessary to make the claim suable." Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d 18, 20 (3d Cir. 1966), cert. denied, 387 U.S. 930, 18 L. Ed. 2d 992, 87 S. Ct. 2053 (1967). In a latent disease case, however, where the claim is not discoverable despite the exercise of due diligence, the limitations period is tolled under the "discovery rule." Owens v. Lac D'Amiante du Quebec, Ltee., 656 F. Supp. 981, 982 (E.D. Pa. 1987), aff'd without opinion, 833 F.2d 305 (3d Cir. 1987). The statute of limitations in such a case begins to run when "the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful act of another." Wheeler v. Johns-Manville Corp., 342 Pa. Super. 473, 493 A.2d 120, 122 (1985); see also Urland v. Merrell-Dow Pharmaceuticals, Inc., 822 F.2d 1268 (3d Cir. 1987); Cowgill v. Raymark Industries, Inc., 780 F.2d 324, 330 (3d Cir. 1985); Price v. Johns-Manville Corp., 336 Pa. Super. 133, 485 A.2d 466 (1984); Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 471 A.2d 493, 500 (1984). The statute of limitations begins to run on an injury caused by the tortious conduct of a defendant, even if that defendant's conduct is not the sole cause of the injury if it is a substantial factor. See Van Buskirk, supra, 760 F.2d at 492.

 Although defendants bear the burden of proof on the statute of limitations defense, plaintiffs bear the burden of proving that the discovery rule should apply. "The discovery rule does not reward ignorance, but 'imposes a burden of diligence upon plaintiff to inform himself.'" Van Buskirk, supra, 760 F.2d at 498 (quoting Grabowski v. Turner & Newall, 516 F. Supp. 114, 118 (E.D. Pa. 1980), aff'd sub nom., DaMato v. Turner & Newall, Ltd., 651 F.2d 908 (3d Cir. 1981) (per curiam)).

 This complaint was filed on December 13, 1985. Defendants contend that at least by 1979, plaintiff knew or should have known that he had a heart injury and severe shortness of breath and "the possible causal relationship of these injuries to his cigarette smoking." American Tobacco Company's Memorandum of Law in Support of its Motion for Summary Judgment at 17.

 In the mid-1950s, plaintiff was stabbed in the heart; in the mid-1970s he suffered three heart attacks and had serious heart disease symptoms as well as shortness of breath. Defendants contend these facts are sufficient to preclude recovery for all injuries caused by cigarette smoking including the instant claim for lung cancer even though there is nothing in the record to suggest that plaintiff had reason to know that he had lung cancer more than two years before the institution of this suit. If plaintiff's heart condition or shortness of breath were caused by cigarette smoking, it would not matter under the statute of limitations that he now claims damages for lung cancer. Under Pennsylvania law, "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," even if the injuries are of completely different types and affect different parts of the body. Cathcart, supra, 471 A.2d at 507; see also Ross v. JohnsManville Corp., 766 F.2d 823, 826 (3d Cir. 1985).

 Plaintiff testified that Dr. Rosenberg told him in 1954, "You ought to give up cigarettes. It's [sic] ain't doing you no good. That your heart is bad now." Gunsalus deposition, August 20, 1986, at 306. At some point in the 1970s, Dr. Rosenberg informed plaintiff that he had suffered a heart attack and told plaintiff to stop smoking. Plaintiff stated that Dr. Rosenberg told him:

 
What happened, he said my heart problem was caused from the stabbing and cutting up I had. They cut the outside lining of the heart and nicked the heart, when I got stabbed and cut up. He said, 'Your heart is so damaged and so weak,' he said, 'you've got to quit smoking and you've got to quit drinking and you've got to do this.' That was it.

 Id. at 181. Dr. Rosenberg told plaintiff again in 1985, "that smoking wasn't helping [his heart] any." Id. at 308. Plaintiff testified that he was never told that smoking caused his shortness of breath, but that he was told "my heart condition and smoking, it was contributing to the shortness of breath." Id. at 341. In his deposition, plaintiff admitted he was told by three different doctors to stop smoking.

 Following the stabbing and heart attacks, plaintiff knew that he had a heart injury; he also knew more than two years before the institution of this suit that he had shortness of breath. However, the evidence presently of record does not establish as a matter of law that plaintiff knew or had reason to know that either his heart condition or shortness of breath were caused in whole or substantial part by cigarette smoking or that his cigarette smoking so aggravated pre-existing injuries that it constituted a new injury sufficient to start the running of the statute of limitations. *fn2"

 There are at least two genuine issues of material fact on the personal injury claims statute of limitations issue. *fn3"

 First, the jury will have to determine whether cigarette smoking had a sufficient causal connection to plaintiff's heart condition or shortness of breath for a claim to have accrued against the Tobacco defendants. The jury may find either that cigarette smoking was a substantial factor in causing plaintiff's heart condition or shortness of breath or that smoking so aggravated plaintiff's preexisting heart condition or shortness of breath that it was a separate injury sufficient to start the running of the statute of limitations. Only if plaintiff's heart condition or shortness of breath was caused by the tortious conduct of the Tobacco defendants does the statute of limitations on his lung cancer claim begin to run when plaintiff knew or had reason to know of the heart condition or shortness of breath.

 Second, if the jury finds a sufficient causal nexus between the heart condition or shortness of breath and cigarette smoking, it will then have to determine whether at the end of the 1970s plaintiff knew or should have known of the causal connection between the heart injury and cigarette smoking. Van Buskirk, supra, 760 F.2d at 487 ("whether or when a plaintiff knows or has reason to know of the existence and cause of his or her injury will often turn on inferences drawn from disputed facts"). Because these genuine issues of material fact exist, summary judgment based on the statute of limitations defense on plaintiff's pre-1966 personal injury claims is denied. At the final pretrial ...


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