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CURRY v. CONSOLIDATED RAIL CORP.

June 6, 1991

BETTY CURRY, INDIVIDUALLY AND AS ADMINISTRATRIX FOR THE ESTATE OF GERALD E. CURRY, DECEASED, PLAINTIFF,
v.
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.

MEMORANDUM OPINION

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 prejudice.*fn1

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 action accrued."

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.

LEGAL ANALYSIS

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. 1979).

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 limitations 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 ...

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