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FRIED v. SUNGARD RECOVERY SERVS.

September 12, 1996

SIGMUND FRIED, et. al.
v.
SUNGARD RECOVERY SERVICES INC. et. al.



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 SEPTEMBER, 12, 1996

 Today we address Defendant Intech Construction, Inc.'s Motion for Partial Summary Judgment of Counts VI and VII of Plaintiff Sigmund Fried's Second Amended Complaint. For the reasons that follow, we grant Defendant's Motion and order that Counts VI and VII be dismissed with prejudice.

 BACKGROUND

 This case concerns an alleged conspiracy to remove asbestos illegally from a building where Plaintiffs were employed, causing or aggravating Plaintiff Sigmund Fried's ("Fried") lung cancer and resulting in increased danger to the health of the other members of the putative Plaintiff class. Defendant Intech Construction, Inc. ("Intech") is the construction contractor that renovated the sixth and seventh floors of the building at 401 North Broad Street. On May 2, 1996, this Court dismissed all but two of the Pennsylvania common law claims asserted by Fried against Intech. Intech now moves for summary judgment on the two remaining state law claims, Counts VI and VII.

 STANDARD FOR SUMMARY JUDGMENT

 In order to grant a motion for summary judgment, a court must find that the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, reveal no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 DISCUSSION

 Fried argues first that we should deny Intech's Motion as untimely given that the Case Management Order of June 21, 1995 set the deadline for summary judgment motions as January 15, 1996. We agree with Intech, however, that the interests of judicial efficiency and economy are clearly best served by addressing these issues now. Denying this Motion as untimely would do no more than delay the disposition of these issues until trial. Further, rigid adherence to the Case Management Order is not appropriate where, as here, new developments in the law give rise to arguments previously unavailable. Thus, we proceed to the merits of the dispute.

 I. COUNT VI

 Fried alleges that Intech's failure to take reasonable care in removing the asbestos from 401 North Broad Street caused him to be exposed to dangerous levels of asbestos. In Count VI, Fried requests an award of expenses for "ongoing medical surveillance and monitoring for early diagnosis and detection of asbestos-related diseases" as a result of this exposure. Pls.' Second Am. Compl. at P 67.

 The Pennsylvania Supreme Court recently held that, under Pennsylvania law, a party may recover damages for expenses incurred in the medical surveillance of asymptomatic pleural thickening caused by occupational exposure to asbestos. Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996). *fn1" As we have previously explained, we read the Simmons decision as holding that mere exposure to significant levels of asbestos, without a demonstrable physical consequence such as pleural thickening, does not support a claim for medical monitoring. See Fried v. Sungard Recovery Services, 925 F. Supp. 375, 377 (E.D.Pa. 1996); Cf. In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829 (3d Cir. 1990), cert. denied, 499 U.S. 961, 111 S. Ct. 1584, 113 L. Ed. 2d 649 (1991) (predicting that, under Pennsylvania law, medical monitoring claim would not require pleural thickening); In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994), cert. denied, 115 S. Ct. 1253, 131 L. Ed. 2d 134 (1995) (same); Redland Soccer Club v. Department of Army, ...


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