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In Re: Asbestos Products v. Various

May 5, 2011


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


Transferred from the Southern District of Mississippi

Before the Court is Plaintiff's Motion for Reconsideration of this Court's grant of summary judgment in favor of Defendant Volkswagen Group of America, Inc. ("Defendant").


Defendant moved for summary judgment on the basis that Plaintiff's claims are time-barred. Plaintiff was diagnosed with lung cancer in 1985, but did not bring suit until 2006, outside of the statute of limitations for personal injury cases under Mississippi law. (See doc. no. 24.) The Court granted Defendant's motion, and several Defendants' joinders, as unopposed, as Plaintiff had failed to file a timely response. (See doc. no. 92.)

Plaintiff's Motion for Reconsideration asks the Court to treat Defendant's Motion for Summary Judgment as a partial motion for summary judgment as to Plaintiff's lung cancer claims, but argues that Plaintiff's asbestosis claims are not time-barred.*fn1 Plaintiff was not diagnosed with asbestosis until October 14, 2003, and it is undisputed that he filed his claim within three years of this diagnosis. (Pl.'s Mot., doc. no. 95, at 2-3.) Plaintiff's Administrative Order 12 submissions contain separate diagnosing information for lung cancer and asbestosis.


A Motion for Reconsideration will be granted when the party seeking reconsideration establishes "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court . . . [issued its previous decision]; or (3) the need to correct a clear error of law or fact or prevent manifest injustice." Max's Seafood Cafe© v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999); North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995); United States v. Cabiness, 278 F. Supp. 2d 478. 483-84 (E.D. Pa. 2003) (Robreno, J.). Further, "[b]ecause federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Cont'l Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995).

Plaintiff asserts that granting summary judgment in favor of Defendant amounted to manifest injustice, as the issue of Plaintiff's asbestosis claims was "not raised by Defendant" and Plaintiff's "viable asbestosis claims still remain." (Pl.'s Mot., doc. no. 95, at 3.) Indeed, this specific issue was not squarely addressed in Defendant's Motion for Summary Judgment, which discussed only lung cancer claims, and was therefore not considered by the Court in granting summary judgment in favor of Defendant.

However, the question of whether Mississippi is a "two-disease" state was addressed by both parties in briefing the instant Motion for Reconsideration, and is ripe for consideration.


The timeliness of Plaintiff's asbestosis claim is contingent on whether Mississippi has adopted the two-disease rule, that is, whether lung cancer and asbestosis are separate and divisible injuries, or if the clock began to run on all of Plaintiff's asbestos-related claims with his first diagnosis.

See Kiser v. A.W. Chesterton Co., 11-60039, doc. no. 51 (explaining that "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, for any asbestos-related disease."). Although the Mississippi Supreme Court has not squarely decided this issue, there is sufficient authority to Erie predict with some measure of confidence that Mississippi is a "two-disease" state.

First, in Gentry v. Wallace, the Mississippi Supreme Court cited with approval the decision in Jackson v. Johns-Manville Sales Corp., 727 F.2d 506 (5th Cir. 1984)("Jackson I"), in which the Fifth Circuit Court of Appeals determined that under Mississippi law, asbestosis and cancer are separate and distinct diseases, with separate statute of limitations periods. 606 So.2d 1117, 1122 (1992). The Mississippi Supreme Court stated, in a medical malpractice context, that "[i]t would disadvantage a plaintiff unfairly and disserve judicial economy to measure the limitations periods for future diseases from the time of manifestation of a separate and distinct disease." Gentry v. Wallace, 606 So.2d at 1122 (citing Jackson I). In addition to fairness to the plaintiff, the court noted that allowing plaintiffs to recover for cancer that had not yet occurred, and may never manifest, would serve to make manufacturers "insurersof their products," contrary to the public policy of the state of Mississippi. Id. at 1122. The Gentry court concluded that wrongful death and personal injury actions arising out of the same alleged negligent medical care have separate statute of ...

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