United States District Court, Western District of Pennsylvania, C.D
June 6, 1991
BETTY CURRY, INDIVIDUALLY AND AS ADMINISTRATRIX FOR THE ESTATE OF GERALD E. CURRY, DECEASED, PLAINTIFF,
CONSOLIDATED RAIL CORPORATION; PENN CENTRAL CORPORATION; BENDIX CORPORATION; CELOTEX CORPORATION; DUROX EQUIPMENT COMPANY; EAGLE PICHER INDUSTRIES, INC.; FLINTKOTE COMPANY; GARLOCK, INC.; KEENE CORPORATION; OWENS-CORNING FIBERGLASS CORPORATION; RAYMARK INDUSTRIES, INC.; STUDEBAKER-WORTHINGTON, INC.; AND UNION RUBBER, INC., DEFENDANTS, V. ANCHOR PACKING COMPANY; CERTAINTEED CORPORATION; NICOLET, INC.; NOSROC CORPORATION; J.W. ROBERTS LTD.; TNT LIQUIDATING COMPANY; TURNER & NEWELL PLC AND TURNER ASBESTOS FIBERS LTD., THIRD PARTY DEFENDANTS.
The opinion of the court was delivered by: Lee, District Judge.
Plaintiff, Betty Curry, instituted this asbestos action
individually and as Administratrix for the Estate of Gerald E.
Curry, on or about January 25, 1985, against the railroad
defendants Conrail and Penn Central pursuant to the Federal
Employers' Liability Act (FELA), 45 U.S.C. § 51-60. Plaintiff
also included as defendants various asbestos manufacturer and/or
supplier defendants based upon diversity jurisdiction and
pursuant to the Pennsylvania Survival and Wrongful Death Acts
and state law theories including negligence and strict
liability. With plaintiff's consent, these
manufacturer/supplier defendants have since been dismissed with
Before the Court are Defendants Consolidated Rail and Penn
Central's Motions for Summary Judgment in which defendants argue
plaintiff's claim is time barred pursuant to Title 45 United
States Code Section 56. Section 6 of the FELA provides in
relevant part: "No action shall be maintained under this chapter
unless commenced within three years from the day the cause of
Defendants contend plaintiff's claim was filed well over three
years from the day her cause of action accrued; that date being
October of 1979 when plaintiff's decedent husband entered the
hospital and was diagnosed as having lung cancer. In the
alternative, defendant maintains plaintiff's claim accrued no
later than March 4, 1980, plaintiff decedent's date of death.
Conversely, plaintiff maintains her Complaint was timely filed
and that the statute of limitations does not automatically begin
to run on the date her husband's lung cancer was diagnosed or
even on the date of his death. Instead, plaintiff argues the
cause of action "does not accrue until plaintiff becomes aware
of the disease and its cause." (Emphasis added).
Plaintiff maintains she did not become aware that asbestos was
a possible cause of her husband's lung cancer until
approximately between March and May of 1983 when she discovered
the same through the news media. Thereafter, upon further
investigation and consultation with counsel, plaintiff
instituted suit on January 25th, 1985.
The United States Supreme Court has recognized the FELA is a
broad remedial statute and has adopted a standard of liberal
construction in order to accomplish the congressional
objectives. See Outten v. National Railroad Passenger
Corporation, a/k/a Amtrack, 928 F.2d 74 (3d Cir. 1991). The
Court has further recognized the congressional purpose in
enacting the FELA would be frustrated if a plaintiff were
chargeable with knowledge of the slow progress of a disease "at
some past moment in time, unknown and inherently unknowable even
in retrospect." Urie v. Thompson, 337 U.S. 163, 169, 69 S.Ct.
1018, 1024, 93 L.Ed. 1282 (1949).
The Urie case involved a steam locomotive fireman who
developed a debilitating lung disease from prolonged exposure to
diesel fumes. The Court stated that plaintiff could be charged
with knowledge of the gradual deterioration of his lungs "`only
when the accumulated effects of the deleterious substance
manifested themselves.'" Id. at 170, 69 S.Ct. at 1025, quoting
Associated Indemnity Corp. v. Industrial Accident Commission,
124 Cal.App. 378, 381, 12 P.2d 1075, 1076 (1932).
The Urie Court held when an occupational illness is the
basis for a claim under FELA, the statute of limitations begins
to run when the employee becomes aware of his disease and its
cause. This discovery rule also was applied to claims arising
under the Federal Tort Claims Act which, in effect, delays the
accrual of a cause of action until a plaintiff has the
opportunity to discover the legal ramifications of the injury.
See De Witt v. United States, 593 F.2d 276, 278 (7th Cir.
In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62
L.Ed.2d 259 (1979), the Court differentiated between knowledge
of the injury and knowledge of a legal remedy whereby it stated
"we are unconvinced that for statute of limitations purposes, a
plaintiff's ignorance of his legal rights and his ignorance of
the fact of injury or its cause should receive identical
treatment. In other words, having discovered his injury, the
putative plaintiff "must determine within the period of
whether to sue or not." 444 U.S. at 124, 100 S.Ct. at 360.
In Kichline v. Consolidated Rail Corp., 800 F.2d 356 (3d
Cir. 1986), quoting Zeleznik v. United States, 770 F.2d 20, 23
(3d Cir. 1985), the Third Circuit observed the substance of the
Kubrick discovery rule to be as follows:
"[T]he statute of limitations begins to run on the
first date that the injured party possesses
sufficient critical facts to put him on notice that a
wrong has been committed and that he need investigate
to determine whether he is entitled to redress."
"Under Urie's rationale," the Kichline Court
continued, "when an occupational injury is the basis
for the claim under FELA, the statute of limitations
begins to run when the employee becomes aware of his
disease and its cause."
The Third Circuit's interpretation of the Urie and Kubrick
holdings leads us to conclude that the statute of limitations
begins to run once plaintiff discovers both plaintiff decedent's
condition and its cause. Thus, the critical question for our
purposes is when did plaintiff possess sufficient critical facts
to put her on notice that a wrong had been committed?
STANDARDS FOR SUMMARY JUDGMENT
Defendants have moved this Court to grant summary judgment in
their favor pursuant to Rule 56 of the Federal Rules of Civil
Procedure.*fn2 In interpreting Rule 56, the United States
Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986) has ruled that:
"The plain language . . . mandates entry of summary
judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element
essential to that party's case, and on which that
party will bear the burden of proof at trial. In such
a situation, there can be no genuine issue as to
material fact, since a complete failure of proof
concerning an essential element of the non-moving
party's case necessarily renders all other facts
immaterial." Celotex, 477 U.S. at 322 to 323, 106
S.Ct. at 2552.
An issue of material fact is genuine only if the evidence is
such that a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Incorporated,
477 U.S. 242
, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
Furthermore, the Court must view the facts in a light most
favorable to the nonmoving party and the burden of establishing
that no genuine issue of material fact exists rests with the
movant. Pontius v. Children's Hospital, 552 F. Supp. 1352
Plaintiff admits that plaintiff decedent was diagnosed with
lung cancer in approximately October of 1979, and died from lung
cancer on March 4, 1980. However, plaintiff specifically denies
that she or plaintiff decedent knew or should have known the
cause of this lung cancer and lung cancer death was
asbestos-related prior to March or May of 1983. On the other
hand, defendants maintain plaintiff's cause of action, if any,
accrued at the time plaintiff decedent was diagnosed or in the
alternative, no later than plaintiff decedent's date of death.
Our application of the discovery rule in this FELA action is
controlled by Urie, Kubrick and Kichline; that rule being
that plaintiff's cause of action accrues only when it is
established that she possessed sufficient facts to put her on
notice of plaintiff decedent's injury and its cause.
Viewing the evidence in a light most favorable to plaintiff,
we are satisfied there remains a material issue of fact as to
when plaintiff possessed sufficient information or facts to
indicate that plaintiff decedent's illness and death may have
In Barr v. Consolidated Rail Corporation, et al., No.
84-2650 (W.D.Pa., September 14, 1986), a case remarkably similar
to the instant case, the Court concluded that plaintiff was
entitled to the favorable inference that she did not know, nor
should she have known, of facts supporting the likelihood that
her husband's exposure to asbestos was related to his sickness
and subsequent death.
The decedent in Barr retired from the railroad in 1976,
developed lung cancer and died in March of 1980. Plaintiff Barr
instituted suit on November 2, 1984 after learning from a friend
that asbestos exposure might have caused her husband's lung
cancer death. In that case, this Court held that Mrs. Barr's
FELA action was timely filed and summary judgment, based upon a
statute of limitations argument, was inappropriate.
We find nothing in the instant facts thus far which would
cause us to stray from the reasoning of Barr, particularly in
view of the fact that defendants have presented no evidence that
prior to March or May of 1983, plaintiff discovered that her
husband's illness and resulting death may have been caused by
exposure to asbestos.
Defendants' Motion for Summary Judgement is HEREBY DENIED.