may be discharged by demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond its pleading and designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories showing there is a genuine issue for trial. Id. at 324. Moreover, when the non-moving party bears the burden of proof, it must "make a showing sufficient to establish the existence of [every] element essential to that party's case." Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir. 1987) (quoting Celotex, 477 U.S. at 322).
Summary judgment must be granted "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." White, 862 F.2d at 59 (quoting Celotex, 477 U.S. at 322). The non-movant must specifically identify evidence of record, as opposed to general averments, which supports his claim and upon which a reasonable jury could base a verdict in his favor. Celotex, 477 U.S. at 322. The non-movant cannot avoid summary judgment by substituting "conclusory allegations of the complaint . . . with conclusory allegations of an affidavit." Lujan v. National Wildlife Found., 497 U.S. 871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990). Rather, the motion must be denied only when "facts specifically averred by [the non-movant] contradict "facts specifically averred by the movant." Id.
III. Statute of Limitations
Defendants move for summary judgment based on the statute of limitations. Defendants contend that Pennsylvania's two year statute of limitations applies to the instant case because plaintiffs' underlying legal theory is one of negligence. 42 Pa. Cons. Stat. Ann. § 5524. Applying this statute of limitations, defendants submit that all of the plaintiffs are barred from prosecuting their claims because they either knew, or should have known, that smoking placed them at an increased risk of contracting a serious latent disease years before any of them commenced this litigation. Defendants additionally argue that they should not be estopped from asserting the statute of limitations defense, that the doctrine of laches does not apply to this case, and that the continuing tort doctrine does not apply to this case.
In response, plaintiffs ask this Court to deny defendants' motion for the following reasons. First, plaintiffs argue that the equitable doctrine of laches controls, thus making the only relevant considerations whether defendants can show prejudice from the timing of plaintiffs' suit or whether plaintiffs unjustifiably delayed in bringing their medical monitoring claim. Second, due to defendants' ongoing wrongful conduct, the continuing wrong doctrine applies and prevents any applicable statute of limitations from beginning to run until the conduct ceases. Third, due to the nature of the injury of medical monitoring case -- long-term exposure increasing the risk of latent disease -- there could have been no earlier accrual of plaintiffs' claims. Fourth, because medical monitoring is a relatively new cause of action, plaintiffs could have not brought this action until recently.
As a threshold matter, the Court finds that a statute of limitations applies to this case, not the doctrine of laches. To begin, this action is not purely an equitable action. Admittedly, the Court has recently concluded that this action is both inherently equitable and legal. See Barnes v. American Tobacco Co. , 989 F. Supp. 661, 1997 U.S. Dist. LEXIS 16119, slip op. at 14 (E.D. Pa. 1997). Hence, plaintiffs' argument that this action is purely equitable has already been rejected. More importantly, however, a statute of limitations should apply to this action because plaintiffs could have brought this action at law or in equity.
It has been long established that equity will follow the law and will apply the statute of limitations for the corresponding legal action. Ebbert v. Plymouth Old Co., 348 Pa. 129, 34 A.2d 493, 495 (Pa. 1943). In particular, where a plaintiff could maintain an action at law but fails to do so within the required time period, he will not be heard to bring the same action in equity. 34 A.2d at 495-96; City of Philadelphia v. Louis Labs., Inc., 201 Pa. Super. 16, 189 A.2d 891, 893 (Pa. 1963). In Ebbert, the Supreme Court of Pennsylvania stated:
It is well established that equity will frequently follow the statute of limitations which controls analogous proceedings at law. This is especially, if not invariably, true if the cause of action is not exclusively cognizable in equity, which is the situation here, because, where an accounting is desired, it may be obtained in a common-law proceeding. . . . Because of this concurrent jurisdiction the statute of limitations is generally held to be a bar to proceedings in equity for an accounting when it would be a bar to an action at common law for the same matter.
Ebbert, 34 A.2d at 495-96 (emphasis added). Thus, if a plaintiff is barred by the statute of limitations from bringing an action at law, this same plaintiff will be barred from bringing the concurrent action in a court of equity.
Fortuitously, the Third Circuit, in Algrant v. Evergreen Valley Nurseries Ltd., 126 F.3d 178, 1997 U.S. App. LEXIS 24916, 1997 WL 570840 (3d Cir. 1997), recently addressed a very similar issue. In Algrant, a question arose as to whether the statute of limitations that attaches to underlying substantive claims in a declaratory judgment action also applies to the actual declaratory judgment counts that were based on the underlying substantive claims. In answering this question in the affirmative, the Third Circuit explicitly noted that "it is settled . . . that where legal and equitable claims coexist, equitable remedies will be withheld if an applicable statute of limitations bars the concurrent legal remedy." Id. at *3 (citation omitted). The Third Circuit also approvingly cited the Supreme Court's holding that "'equity will withhold its relief in such a case where the applicable statute of limitations would bar the concurrent legal remedy."
Based on this persuasive reasoning, the Court concludes that once the statute of limitations has run on an action at law, a plaintiff cannot save his claim by bringing the concurrent claim in equity. For the purposes of this case, there exist two pertinent inquiries: first, does plaintiffs' current equitable action have a concurrent legal action; and second, if yes, what statute of limitations applies? The first line of inquiry has already been answered; there is no doubt that this action has a purely legal concurrent action. As stated in this Court's Memorandum and Order dated October 12, 1997, plaintiffs could have brought an entirely legal action by simply requesting lump-sum money damages. Barnes, slip op. at 11-12. Consequently, because plaintiffs could have brought this action at law, the next line of inquiry is what statute of limitations would be applied in that legal action.
In order to determine what statute of limitations should apply in this action, the Court must look at the theories of liability that underlie a medical monitoring claim. Under Redland Soccer Club, Inc. v. Dep't of the Army, the Supreme Court of Pennsylvania stated that a plaintiff, in part, must prove that he was exposed to a proven hazardous substance caused by the defendant's negligence. 548 PA. 178, 696 A.2d 137, 145 (Pa. 1997).
The Redland Soccer court thus found that a plaintiff must establish that the defendant was negligent in order to set forth a medical monitoring claim. Because negligence is the theory of liability that underlies a medical monitoring claim, this Court predicts that the Pennsylvania Supreme Court, if confronted with this issue, would apply the two year statute of limitations set forth in 42 Pa. Cons. Stat. Ann. § 5524. Moreover, to the extent that strict products liability or an intentional tort can act as the underlying theory of liability for a medical monitoring claim, which the parties dispute, the applicable statute of limitations would still be two years because intentional torts and strict products liability are governed by 42 Pa. Cons. Stat. Ann. § 5524. Having determined what statute of limitations applies to this action, the Court will now ascertain whether plaintiffs would have been barred from maintaining a legal action because of the operation of the statute of limitations.
Generally, a plaintiff "is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period." Pocono International Raceway, Inc. v. Pocono Produce, 503 Pa. 80, 468 A.2d 468, 471 (Pa. 1983). A claim 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). The "statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake, or misunderstanding do not toll the running of the statute of limitations." Pocono, 468 A.2d at 471. However, there are some exceptions to this narrow rule.
The "discovery rule" is a "narrow exception to this general rule." Tohan v. Owens-Corning Fiberglas Corp., 696 A.2d 1195, 1200 n.4 (Pa. Super. 1997). The discovery rule tolls the statute of limitations to reflect the "plaintiff's complete inability, due to facts and circumstances not within his control, to discover an injury despite the exercise of due diligence." Kingston Coal Co. v. Felton Mining Co., Inc., 456 Pa. Super. 270, 690 A.2d 284, 288 (Pa. Super. 1997). Under the discovery rule, the statute of limitations begins to run when the "plaintiff knows, or in the exercise of reasonable diligence should have known, (1) that he has been injured, and (2) that his injury has been caused by another's conduct." Bradley v. Ragheb, 429 Pa. Super. 616, 633 A.2d 192, 194 (Pa. Super. 1993).
The plaintiff has the burden of proving that he exercised reasonable diligence in bringing his claim. Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245, 249-50 (Pa. 1995). Reasonable diligence is "an objective, rather than a subjective standard. Under this standard, the plaintiff's actions must be evaluated to determine whether he exhibited those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others." 666 A.2d at 249. Reasonable diligence "may require one to seek further medical examinations as well as competent legal representation." Id. In addition, "when information is available, the failure of a plaintiff to make proper inquiries is a failure to exercise reasonable diligence as a matter of law." Kingston Coal, 690 A.2d at 289.
In contrast, plaintiffs contend that the continuing tort doctrine applies to this case. Plaintiffs cite to the following passage in Page v. United States, 234 U.S. App. D.C. 332, 729 F.2d 818, 821-22 (D.C. Cir. 1984), for the proposition that they may avail themselves to the doctrine of continuing harm in lieu of the discovery rule:
It is well-settled that when a tort involves continuing injury, the cause of action accrues, and the limitations period begins to run, at the time the tortious conduct ceases. Since usually no single incident in a continuous chain of tortious activity can fairly or realistically be identified as the cause of significant harm, it seems proper to regard the cumulative effect of the conduct as actionable. Moreover, since one should not be allowed to acquire a right to continue the tortious conduct, it follows logically that statutes of limitation should not run prior to its cessation . . . .
Relying on this case, and others, plaintiffs argue that their medical monitoring claims are not barred by the statute of limitations because the continuing harm doctrine applies. Specifically, plaintiffs argue that "defendants' defective design, manufacturing, and sale of cigarettes that are intended to be as addictive as possible, suppression of research regarding the harmfulness of smoking and other conduct constitute a continuing harm that has, and continues to be, inflicted on plaintiffs and the entire class." (Pls.' Br. at 100) (emphasis added).
Notwithstanding plaintiffs' argument, the Court finds that the continuing harm doctrine simply does not apply to the facts of this case. It is axiomatic that the statute of limitations applies in cases involving product defects and begins to run when the plaintiff knows, or should have known, of his injury and that it has been caused by another. Bradley, 633 A.2d at 194; Cochran, 666 A.2d at 249. Moreover, in "a latent disease case [or "creeping disease" case], . . . where the claim is not discoverable despite the exercise of due diligence, the limitations period is tolled under the 'discovery rule.'" Gunsalus v. Celotex Corp., 674 F. Supp. 1149, 1153 (E.D. Pa. 1987) (citation omitted). In cases involving exposure to a hazardous substance, Pennsylvania courts specifically have rejected the continuing tort theory. As the Pennsylvania Superior Court has written:
In Anthony v. Koppers Co., 284 Pa. Super. 81, 425 A.2d 428 (1980), revers'd on other grounds, 496 Pa. 119, 436 A.2d 181 (1981), we reviewed the application of the statute of limitations to cases in which the plaintiff has contracted a disease from a continuous exposure to a hazardous substance. We found that other jurisdictions have taken one of three approaches to these "creeping disease" cases: