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Herbert L. Daley and Evelyn Daley, H/W v. A.W. Chesterton

February 21, 2012


Appeal from the Order of the Superior Court entered on April 15, 2009 at No. 2763 EDA 2006 vacating the Order entered on September 12, 2006 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 2640 October Term 2005 The opinion of the court was delivered by: Madame Justice Todd


ARGUED: December 1, 2010


In this appeal by allowance, we consider whether the separate disease rule, which also has been referred to as the "two-disease" rule, allows an individual to bring separate lawsuits for more than one malignant disease which allegedly resulted from the same asbestos exposure. We conclude that it does, and, accordingly, affirm the order of the Superior Court, which reversed the trial court's grant of summary judgment in favor of U.S. Supply Co. ("U.S. Supply") and Duro-Dyne Corp. ("Duro-Dyne") (collectively, "Appellants").*fn1

In 1989, Appellee Herbert L. Daley was diagnosed with pulmonary asbestosis*fn2 and squamous-cell carcinoma of the right lung.*fn3 In October 1990, Daley and his wife (collectively, "Appellees") filed a personal injury action (the "1990 Action") against several defendants seeking compensatory damages for work-related pulmonary asbestosis and lung cancer. Neither of the appellants in the instant case was a named defendant in the 1990 Action. Appellees settled the claims raised in the 1990 Action in 1994.

During the summer of 2005, Daley was diagnosed with malignant pleural mesothelioma.*fn4 On October 24, 2005, Appellees filed suit against U.S. Supply, Duro-Dyne, A.W. Chesterton ("Chesterton"), and eleven other defendants. Appellees alleged in their complaint that Daley's mesothelioma was caused by the same asbestos exposure that resulted in his lung cancer and pulmonary asbestosis, for which he sought and obtained compensation in 1990. U.S. Supply, Duro-Dyne, and Chesterton filed motions for summary judgment, contending that, because Daley previously filed an action for a malignant asbestos-related condition in 1990, Pennsylvania's "two-disease" rule did not allow him to file an action for a second malignant asbestos-related disease -- herein, mesothelioma - in 2005.*fn5 In addition, the companies argued that, at the time of the 1990 Action, Pennsylvania had not yet adopted the two-disease rule, and, therefore, the requirements of Pennsylvania's single cause of action rule applied, such that Appellees' 2005 Action for mesothelioma was barred by the two-year statute of limitations.*fn6

By separate orders dated September 11, 2006, the trial court granted the motions for summary judgment. In so doing, the trial court acknowledged that the Pennsylvania Superior Court, in Marinari v. Asbestos Corp., Ltd., 612 A.2d 1021 (Pa. Super. 1992) (en banc), adopted, for purposes of asbestos litigation, a "two-disease" rule, allowing plaintiffs "to bring one action based on a nonmalignant asbestos disease and a subsequent action for any separately diagnosed malignant disease." Trial Court Opinion, 1/8/07, at 3. The trial court further noted that, in Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996), and McNeil v. Owens-Corning Fiberglas Corp., 545 Pa. 209, 680 A.2d 1145 (1996), this Court determined that "malignant and nonmalignant asbestos-related injuries constitute separate claims." Trial Court Opinion, 1/8/07, at 3.

However, relying on the Superior Court's refusal to allow a plaintiff to bring more than one claim for symptomatic nonmalignant asbestos disease in Bowe v. Allied Signal Inc., 806 A.2d 435 (Pa. Super. 2002), and Gatling v. Eaton Corp., 807 A.2d 283 (Pa. Super. 2002), the trial court concluded "the two-disease rule, as adopted by Pennsylvania courts, permits a plaintiff to bring only one cause of action for nonmalignant diseases caused by asbestos exposure and then only one subsequent action for malignant diseases caused by that same asbestos exposure." Trial Court Opinion, 1/8/07, at 4-5 (emphasis original). As Appellees previously filed an action for the malignant disease of lung cancer, the trial court held they were precluded from bringing a subsequent action for the malignant disease of mesothelioma.

Appellees appealed to the Superior Court, which, in a unanimous published opinion authored by Judge Susan Peikes Gantman, vacated the trial court's orders granting summary judgment. The Superior Court concluded the trial court had misapplied the law by adopting an "unduly restrictive" interpretation of Marinari, and stated:

Although Pennsylvania case law frequently uses the nomenclature, "two-disease" rule, Marinari specifically stated it was adopting a "separate disease" rule in asbestos exposure actions, to do away with recovery of speculative damages, while preserving a plaintiff's right to recover for more than one asbestos-related disease, if a separate disease developed.

Daley v. A.W. Chesterton, 971 A.2d 1258, 1265 (Pa. Super. 2009).

The Superior Court further stated: "[w]e see nothing in Marinari to limit [Daley]" to one cause of action for a malignant asbestos-related disease and one cause of action for a nonmalignant asbestos-related disease, and opined "Marinari permits separate causes of action for distinct diseases due to asbestos exposure." Id. at 1265. The Superior Court determined that mesothelioma is a "separate and distinct disease from, and not the natural, predictable progression of, squamous-cell carcinoma," and, therefore, Daley's diagnosis of mesothelioma in 2005 gave rise to a separate cause of action with a new statute of limitations. Id. at 1264.

Following the denial of their petition for reargument en banc before the Superior Court, U.S. Supply, Duro-Dyne, and Chesterton filed petitions for allowance of appeal with this Court. On May 11, 2010, this Court ordered the matters consolidated and granted review of the following issue: "Did the Superior Court err by permitting suits for more than one malignant disease resulting from the same asbestos exposure under the two-disease rule?" Daley v. A.W. Chesterton, Inc., 606 Pa. 42, 994 A.2d 1078 (2010) (order); Daley v. A.W. Chesterton, Inc., 606 Pa. 43, 994 A.2d 1079 (2010) (order).

Our standard of review of an order granting or denying a motion for summary judgment is well established:

We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Our scope of review of a trial court's order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion.

Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001) (citations omitted).

In arguing the Superior Court erred in reversing the trial court's grant of summary judgment in the instant case, Appellants contend Marinari created "a limited exception to the unitary cause of action requirement for asbestos litigation" by adopting a "two-disease" rule. Appellants' Brief at 13. Appellants maintain that "[t]he classification of asbestos-related diseases into nonmalignant and malignant categories is at the core of [that rule]." Id. at 14. According to Appellants, Marinari "permit[s] one suit for a nonmalignant disease and a [single] separate later action for cancer." Id. at 15. To the extent the Superior Court held, in the instant case, that Marinari does not limit a plaintiff to one suit for a nonmalignant disease and one suit for a malignant disease, Appellants assert that its holding is contrary not only to the Superior Court's own case law, but also to decisions of this Court.

In support of their position, Appellants rely on the Superior Court's decisions in Bowe, supra, and Gatling, supra - specifically, on the Superior Court's statement in Bowe that "the intent of Marinari in creating the 'two-disease rule' was to allow for separate actions in asbestos litigation for nonmalignant and malignant diseases," and its finding that any distinction between pulmonary asbestosis, a disease on the inside of the lung, and pleural thickening, a disease on the outside of the lung, was irrelevant, as both diseases are nonmalignant. 806 A.2d at 441. In addition, Appellants note that, in Gatling, the Superior Court rejected the plaintiff's argument that, because he had two separate diseases, there were two separate and distinct causes of action, as "pleural asbestosis and pulmonary asbestosis are both nonmalignant diseases. . . . The two disease rule recognizes separate actions for nonmalignant and malignant diseases." 807 A.2d at 288 (emphasis original).

According to Appellants, the Superior Court's decisions in Bowe and Gatling demonstrate (1) that Marinari's "two-disease" rule permits one action for a malignant disease and one action for a nonmalignant disease, but not "successive lawsuits when both diseases fall within the same category"; and (2) that "[w]hen both injuries fall within the same category of disease," whether one disease is "separate and distinct" from another is irrelevant. Appellants' Brief at 20.

As additional support for their interpretation of Marinari, Appellants rely on language from this Court's decisions in Simmons, supra, and Abrams, supra. Specifically, Appellants note that this Court held in Simmons:

Marinari . . . permit[s] a plaintiff to commence separate causes of action for separate asbestos related diseases, i.e., one for a nonmalignant asbestos related disease which had become manifest and another cause of action for the subsequent development of a separate malignant disease such as lung cancer or mesothelioma.

Simmons, 543 Pa. at 674-75, 674 A.2d at 237 (emphasis added).

Appellants further highlight that, in Abrams, this Court referred to the separate disease rule as a "two-disease" rule, which, according to Appellants, evinces our intent to adopt the Superior Court's holding in Marinari only to the extent it permits a plaintiff to commence one suit for a nonmalignant asbestos-related disease and a second suit for a malignant asbestos-related disease.*fn7 Appellants' Brief at 18. Appellants concede this Court's decisions in Simmons and Abrams did not involve lawsuits for successive malignant diseases, as does the case sub judice, but maintain "this does not change the outcome because the two-disease rule recognized and endorsed by this Court leaves no doubt that the asbestos-related malignancy for which a plaintiff can seek recovery is lung cancer or mesothelioma, but not both." Appellants' Brief at 18-19 (emphasis original).

Finally, Appellants argue that the Superior Court's interpretation of Marinari is rife with practical difficulties. Appellants contend that, in allowing plaintiffs to bring more than one lawsuit for asbestos-related diseases of the same category, the judicial system will be burdened with piece-meal litigation.*fn8 Indeed, Appellants suggest that residents of other states will seek to benefit by the "expansion" of the two-disease rule by filing suit in Pennsylvania. Appellants further aver that allowing a plaintiff to bring separate lawsuits for separate malignant diseases, such as lung cancer and mesothelioma, will make the determination of an appropriate award of damages more difficult due to an "inability to segregate" the damages for each of the separate diseases. Appellants' Brief at 24. Appellants also argue that allowing separate actions for injuries "in the same disease category" conflicts with principles of res judicata. Id. at 25.

Appellees, conversely, challenge Appellants' interpretation of Marinari, arguing:

Marinari did not hold, as [Appellants] argue in their brief, that an asbestos victim is entitled to file one action for a non-cancerous asbestos condition, and one action for a cancerous asbestos condition. Instead, Marinari held that an asbestos victim is not limited to one lawsuit for all potential consequences of his asbestos exposure, but rather is entitled to file a second lawsuit if he develops a distinct and separate asbestos disease. There is no statement in the Marinari decision that an asbestos plaintiff is prohibited from filing a second action for a second separate and distinct malignancy.

Appellees' Brief at 10-11. Appellees emphasize the Marinari court's pronouncement that "[w]e today join a majority of jurisdictions . . . by holding that an asbestos plaintiff may assert, in a second lawsuit, a claim for a distinct, separate disease, if and when it develops at a later time." Marinari, 612 A.2d at 1028 (emphasis added).

Appellees further contend that the cases cited by Appellants for the proposition that Marinari intended to allow a single cause of action for a nonmalignant asbestos-related disease and a single cause of action for a malignant asbestos-related disease are inapplicable, in that those cases "do not involve the fact circumstance where an asbestos plaintiff contracts a second asbestos-related malignancy." Appellees' Brief at 15. Instead, Appellees offer the Superior Court's decision in McCauley v. Owens-Corning Fiberglas Corp., 715 A.2d 1125 (Pa. Super. 1998), as support for interpreting Marinari as allowing separate causes of action for separate and distinct asbestos-related diseases. In McCauley, the court held the plaintiff was not precluded from filing a cause of action for nonmalignant symptomatic pulmonary asbestosis in 1992, despite having failed to file an action for asymptomatic nonmalignant pleural thickening in 1985 (of which the plaintiff was aware at the time), because McCauley's pulmonary asbestosis could "arguably be considered part of a separate and distinct disease which triggered the statute of limitations on a second action." 715 A.2d at 1131.

Appellees also reject the assertion that the Superior Court's decision below, if affirmed, will result in increased litigation, and emphasize they are not suggesting that a plaintiff should be permitted to bring an "endless amount of actions." Appellees' Brief at 17. Rather, they contend: [c]onsistent with Marinari, asbestos victims should be limited to two lawsuits or two causes of action. In the case at bar, Mr. Daley has had only one prior action, and in his first action he recovered compensation for his pulmonary asbestosis and lung cancer. He has now filed a second action for an entirely different asbestos disease, that is, malignant mesothelioma. This does not present a third action on the part of Mr. Daley, and the plaintiff is not arguing that asbestos victims should be permitted to file more than two causes of action.

Id.*fn9 Finally, Appellees dispute Appellants' contention that the Superior Court's decision below, if left to stand, will promote overcompensation or duplicative damages, or ...

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