Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Phyllis Kiser v. A.W. Chesterton Co.

March 16, 2011

PHYLLIS KISER,
PLAINTIFF,
v.
A.W. CHESTERTON CO., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

Transferred from the Western District of Virginia

MEMORANDUM

I. INTRODUCTION

This is an asbestos personal injury case. Before the Court are the Motions to Dismiss of Defendants Trane U.S., Inc., SEPCO, Inc., CBS Corp., Georgia-Pacific Corp., Foster Wheeler Corp., Riley Power, Inc., Goulds Pumps, Inc., Ingersoll-Rand Co., John Crane, Inc., Rapid American Corp., General Electric Co., Warren Pumps, and Harsco Industrial Patterson Kelley.

Federal jurisdiction in this case is based on diversity of citizenship under 28 U.S.C. § 1332. Pursuant to Erie Railroad Co. v. Tompkins, this Court will apply Virginia substantive law in deciding Defendants' Motions to Dismiss. 304 U.S. 64 (1938); see also Guaranty Trust Co. v. York, 326 U.S. 99, 108 (1945).

An issue that often appears in personal injury asbestos litigation is whether a plaintiff, who brought a suit for a nonmalignant asbestos-relating disease may later bring a second lawsuit if he or she later develops a malignant asbestos-related disease. Depending on the applicable state law, there are two competing theories on this issue: the separate disease rule, also known as the "two disease" rule, and the indivisible cause of action theory, also known as the "one disease" rule.

Under the separate disease rule, a plaintiff may bring suit for a nonmalignant asbestos-related disease without triggering the statute of limitations for any malignant asbestos-related diseases which may later develop. Many state courts have adopted the separate disease rule. See Abrams v. Pneumo Abex Corp., 981 A.2d 198, 208 (Pa. 2009) (adopting the "two disease" rule); Anderson v. AC&S, Inc., 797 N.E.2d 537, 544 (Ohio Ct. App. 2003) (internal citations omitted) (noting that under the Federal Employers' Liability Act, asbestosis and mesothelioma are distinct diseases giving rise to separate causes of action); Wagner v. Apex Marine Ship Mgmt. Corp., 100 Cal. Rptr. 2d 533, 536 (Cal. Ct. App. 2000) (recognizing the separate disease rule in a claim brought under the Jones Act).

By contrast, under the indivisible cause of action theory, the statute of limitations for all asbestos-related diseases begins to run at the time of the initial diagnosis or discovery, depending on the jurisdiction, of any asbestos-related disease. See Joyce v. AC&S, Inc., 785 F.2d 1200 (4th Cir. 1986) (applying Virginia law). Therefore, if a plaintiff is diagnosed with or discovers that he or she has a nonmalignant asbestos-related disease, the statute of limitations also begins to run on claims for any malignant disease which may later develop.

The issue here is whether the 1985 amendment to Virginia's statute of limitations, codified at VA. CODE ANN.

§ 8.01-249(4), overruled Virginia case law which had recognized the indivisible cause of action theory.

II. BACKGROUND

The facts in this case are uncontroverted. In 1988, Orvin Kiser, Sr. was diagnosed with nonmalignant pleural thickening and asbestosis. (Pl.'s Resp., doc. no. 13 at 3.) In April of 1990, Mr. Kiser filed an action against eighteen (18) defendants for his asbestosis claim. (Def.'s Mot. Dismiss, doc. no. 11 at 1.) Those defendants are not parties to the instant case. (Id.) This prior action remained pending in the United States District Court for the Western District of Virginia for twenty (20) years before it was dismissed in July of 2010. (Id. at 2.)

Mr. Kiser was diagnosed with mesothelioma on November 7, 2009. (Pl.'s Resp. at 3.) He passed away on March 30, 2010.

(Def.'s Mot. Dismiss at 2.) Plaintiff Phyllis Kiser ("Plaintiff"), as Executor of the Estate of Mr. Kiser, brought this wrongful death suit on October 26, 2010, alleging that various defendants' asbestos-containing products caused Mr. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.