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April 30, 1997


Appeal from the Order Dated January 22, 1996, Docketed January 23, 1996, In the Court of Common Pleas of Philadelphia County, Civil No. 2251 June Term, 1992. Before ABRAMSON, J.

Before: Cavanaugh and Beck, JJ. and Cercone, P.j.e. Opinion BY Beck, J. Concurring And Dissenting Opinion BY Cavanaugh, J.

The opinion of the court was delivered by: Beck


FILED APR 30 1997

We decide whether the "two disease rule" as first stated in our asbestos cases, *fn1 is applicable in a malpractice action where a plaintiff claims as a measure of damages increased risk and fear of liver cancer. We find the two disease rule is applicable and plaintiff-appellant cannot successfully assert as a measure of damages the increased risk and fear of liver cancer.

In September, 1982, plaintiff-appellant Ronald L. Klein was treated by defendant-appellee Robert Mowery, M.D., for purposes of obtaining a hepatitis B vaccine. Blood tests were performed and revealed elevated liver-associated enzymes. As a result of these test results, appellant was referred to defendant-appellee Paul Weisberg, M.D., who diagnosed appellant as having non-A, non-B hepatitis. Appellant saw Dr. Mowery on several more occasions in 1983 and 1984. On December 4, 1990, a liver biopsy was performed on appellant by Harvey Licht, M.D., and hemochromatosis and cirrhosis were diagnosed.

Appellant filed this action against Drs. Mowery and Weisberg, claiming that their negligence in failing timely and properly to diagnose his liver condition caused him to suffer injuries, including hemochromatosis and cirrhosis of the liver, sterility, painful and unnecessary treatments, and treatments that were made less effective by the delayed diagnosis. *fn2 Appellant also alleged that appellees' negligence had increased his risk of developing liver cancer.

Prior to trial, upon learning that appellant sought a jury instruction on increased risk of cancer, appellees filed a motion in limine with the court, seeking to preclude any evidence on claims of increased risk and/or fear of liver cancer. The motion in limine did not address the remaining claims made by appellant, i.e., increased harm caused by delayed diagnosis. These latter claims had earlier been challenged in defense motions for summary judgment. Specifically, the appellees argued in these motions that appellant's expert reports did not sufficiently establish the requisite standard of care and did not establish causation to the required degree of medical certainty. These motions for summary judgment were denied by the Honorable Joseph D. O'Keefe.

On January 22, 1996, during proceedings on the matter before the Honorable Howland W. Abramson, the Judge granted the motion in limine regarding increased risk and/or fear of cancer and permitted appellant to create a record regarding the case he would have presented if the motion in limine had been denied. During this colloquy, Judge Abramson conceded that he was dismissing the claims for increased risk and/or fear of cancer explicitly raised in the motion in limine, and that he also was dismissing the remaining claims of increased harm caused by delayed diagnosis because of insufficient expert testimony. Appellant then "stipulated on the record that this Order was case dispositive" and that the "Judge has in effect dismissed all claims for damages by his ruling and that there's no need to pursue a trial because there would be no damages to submit to the jury."

On January 29, 1996, the court issued an order which essentially made two legal holdings: 1) fear and/or increased risk of cancer are not cognizable claims under our current case law regarding the "two-disease rule" and 2) appellant's proffered expert testimony was insufficient as a matter of law to support his claims for increased harm caused by delayed diagnosis. *fn3

We turn to the merits of appellant's arguments on appeal. Appellant first argues that the trial court erred in holding that the "two disease" rule applies to preclude appellant's claim of fear and/or increased risk of cancer. We hold that the trial court correctly decided to preclude evidence on this particular claim.

In Marinari v. Asbestos Corp., 417 Pa. Super. 440, 612 A.2d 1021 (1992) (en banc), we expressly held that a plaintiff with one asbestos-related injury, such as pleural thickening, may commence a separate action for new asbestos-related injuries, such as lung cancer, if and when such additional conditions develop. By applying this "two-disease" rule in asbestos cases, we have acknowledged that in certain personal injury lawsuits, it would be unfair and unwieldy to require a plaintiff with one disease to bring a single action for all possible permutations of that disease, despite the fact that additional conditions or symptoms have not yet developed and in fact may never develop.

Before adoption of the two disease rule, the statute of limitations proved fatal to the second action and otherwise forced plaintiffs to include all types of potential injuries, no matter how speculative, in a single action. Since adoption of the rule, it has been applied to preclude recovery for fear and/or increased risk of lung cancer in asbestos cases, the rationale being that if cancer ever develops, the plaintiff will be permitted to sue for that actual injury at that time. Giffear v. Johns-Manville Corp., 429 Pa. Super. 327, 632 A.2d 880, 888-89 (1993).

We have applied this reasoning in other "fear of contracting disease" cases. In Lubowitz v. Albert Einstein Med. Center, 424 Pa. Super. 468, 623 A.2d 3 (1993), we similarly held that the "fear of AIDS" was not a legally cognizable injury. We declined to allow recovery of "monetary damages for a risk or fear of developing AIDS in the future." Id. at 471, 623 A.2d at 5. Our supreme court has recently confirmed in Simmons v. Pacor, Pa. , 674 A.2d 232 (1996), that damages for fear of cancer are simply too speculative for recovery. ...

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