United States District Court, E.D. Pennsylvania
EDUARDO C. ROBRENO, J.
case was removed in March of 2015 from the Court of Common
Pleas of Philadelphia to the United States District Court for
the Eastern District of Pennsylvania as part of MDL-875.
assert that Mr. Conneen developed lung cancer as a result of,
inter alia, his exposure to asbestos released from
products manufactured and/or supplied by Defendant Goulds
Pumps, Inc. (“Goulds” or “Defendant”)
and/or about which Defendant owed and breached a duty of
care. (See Exhibit I to Pl. Opp., ECF No. 114 at
have brought claims against various defendants. Defendant
Goulds has moved for summary judgment, arguing that
Plaintiffs' claims are barred by the applicable statute
FACTUAL AND PROCEDURAL HISTORY
allege that Joseph Conneen (“Decedent” or
“Mr. Conneen”) was exposed to asbestos while,
inter alia, working as a pipefitter and plumber at
various locations in Pennsylvania during the period from 1962
to 1980. Defendant Goulds manufactured pumps. The locations
of the alleged asbestos exposure identified in
Plaintiffs' Complaint are:
• Philadelphia Naval Shipyard
• Rohm and Haas Chemicals - Bristol, PA
• Rohm and Haas chemical plant - Philadelphia, PA
(Exhibit I to Pl. Opp., ECF No. 114 at 48, &5.)
Goulds has moved for summary judgment, arguing that
Plaintiffs' claims are barred by Pennsylvania's
two-year-long statute of limitations. Although Plaintiffs
appear to agree with Defendant that Pennsylvania law governs
their claims against Defendant (and that a two-year-long
statute of limitations is applicable), Plaintiffs contend
that their Complaint was timely filed.
connection with Plaintiffs' opposition, Mr. Conneen has
provided an affidavit setting forth the events surrounding
his diagnosis and his discovery of asbestos as a potential
cause of his lung cancer. (See Exhibit A to Pl.
Opp., ECF No. 114 at 13-15.) According to Plaintiffs, Mr.
Conneen did not learn that asbestos was potentially a cause
of his illness until February 12, 2013. Plaintiffs contend
that this renders the Complaint timely because the statute of
limitations did not begin to run until February 12, 2013
(when he first learned that his lung cancer may have been
caused by asbestos) and that, to the extent that it can be
said to have begun to run when he learned of his lung cancer
diagnosis (in December of 2012), tolling of the statute of
limitations is warranted because he did not know at that time
that asbestos may have been a cause of the illness (i.e., he
had no reason or basis for bringing an asbestos action at
of a preliminary scheduling order, discovery in this case was
limited to discovery on the issue of statute of limitations.
(See ECF No. 73.) While Defendants were permitted to
conduct discovery - including deposition of Mr. Conneen - on
this matter, it appears from the record that Mr. Conneen has
not been deposed. Rather, in seeking summary judgment,
Defendants rely exclusively upon medical records from a
series of medical procedures and doctors' visits that
occurred in December of 2012.
undisputed that the Complaint in this case was filed on
January 20, 2015.
Summary Judgment Standard
judgment is appropriate if there is no genuine dispute as to
any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). “A
motion for summary judgment will not be defeated by
‘the mere existence' of some disputed facts, but
will be denied when there is a genuine issue of material
fact.” Am. Eagle Outfitters v. Lyle & Scott
Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-248 (1986)). A fact is “material” if proof of
its existence or non-existence might affect the outcome of
the litigation, and a dispute is “genuine” if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
undertaking this analysis, the court views the facts in the
light most favorable to the non-moving party. “After
making all reasonable inferences in the nonmoving party's
favor, there is a genuine issue of material fact if a
reasonable jury could find for the nonmoving party.”
Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d
265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v.
Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the
moving party bears the initial burden of showing the absence
of a genuine issue of material fact, meeting this obligation
shifts the burden to the non-moving party who must “set
forth specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 250.
The Applicable Law
alleged asbestos exposures at issue occurred at several
locations in Pennsylvania, some of which were clearly
land-based exposures (i.e., at Rohm and Haas facilities in
Bristol and the Bridesburg neighborhood of Philadelphia).
When the parties to a case involving land-based exposure
agree to application of a particular state's law, this
Court has routinely applied that state's law.
See, e.g., Brindowski v. Alco Valves,
Inc., No. 10-64684, 2012 WL 975083, *1 n. 1 (E.D. Pa.
Jan 19, 2012) (Robreno, J.).
there were also alleged asbestos exposures at the
Philadelphia Naval Shipyard, which may have been land-based
exposures (i.e., occurring at a location within the shipyard
not onboard a ship, such as a repair shop), but were more
likely on-ship (i.e., sea-based) exposures. See Conner v.
Alfa-Laval, Inc., 799 F.Supp.2d 455 (E.D. Pa. 2011)
(Robreno, J.) (applicability of maritime law generally);
Deuber v. Asbestos Corp. Ltd., No. 10-78931, 2011 WL
6415339 (E.D. Pa. Dec. 2, 2011) (Robreno, J.) (distinguishing
between land-based and ship- based exposures within a
shipyard facility). As this Court has routinely held, where a
case sounds in admiralty, application of a state's law
would be inappropriate. See, e.g., Mack
v. General Elec. Co., 896 F.Supp.2d 333, 336 (E.D. Pa.
2012) (Robreno, J.) (citing Gibbs ex rel. Gibbs v.
Carnival Cruise Lines, 314 F.3d 125, 131-32 (3d Cir.
2002)). Therefore, if some of the claims at issue are
governed by maritime law (i.e., arise from alleged sea-based
asbestos exposure), they could not be barred by the
Pennsylvania statute of limitations - and the Court could
instead grant summary judgment on those claims only if they
are barred by the maritime law statute of limitations.
reasons that follow below, the outcome of Defendant's
motion is the same regardless of whether Pennsylvania law or
maritime law is applied - and regardless of whether only one or
both laws are applicable to all or part of Plaintiffs'
claims. (In other words, neither statute of limitations would
bar any of Plaintiffs' claims.) Therefore, the Court need
not scour the record for indications as to whether the
alleged asbestos exposures at the Naval Shipyard are properly
governed by maritime law or Pennsylvania state
Statute of Limitations (Under Pennsylvania Law)
Pennsylvania law, the statute of limitations for an
asbestos-related injury is, generally, two years from the
date on which a claim may be brought (i.e., the date on which
an injury occurs). See Abrams v. Pneumo Abex Corp.,
602 Pa. 627, 981 A.2d 198 (Pa. 2009) (asbestos case);
Bone v. American Standard, No. 2468 EDA 2012, 2013
WL 5038573 (Pa. Super. 2013) (same); 42 Pa. C.S.A. '
5524(8) (and see ' 5524(2)); see also Fine v
Checcio, 582 Pa. 253, 266, 870 A.2d 850, 857 (Pa. 2005)
(discussing, generally, in a non-asbestos case, the running
of the statute of limitations under Pennsylvania law).
However, there are certain exceptions to this general rule in
which the statute of limitations may be deemed
“tolled.” See Fine v. Checcio, 582 Pa.
at 266-67, 870 A.2d at 858 (discussing the “discovery
rule” and the “doctrine of fraudulent
concealment” as two scenarios in which such tolling may
recognizes the “discovery rule” in cases where an
injured party is unable, despite the exercise of reasonable
diligence, to know of both (1) the fact of injury, and (2)
the cause of that injury. See Fine v. Checcio, 582
Pa. at 266-67, 870 A.2d at 858 (“The discovery rule
originated in cases in which the injury or its cause was
neither known nor reasonably knowable. . . . As the discovery
rule has developed, the salient point giving rise to its
application is the inability of the injured, despite the
exercise of reasonable diligence, to know that he is injured
and by what cause.”)(citing Lewey v. H.C. Frick
Coke Co., 166 Pa. 536, 31 A. 261 (Pa. 1895), Ayers
v. Morgan, 397 Pa. 282, 154 A.2d 788 (Pa. 1959),
Hayward v. Medical Center of Beaver County, 530 Pa.
320, 608 A.2d 1040, 1043 (Pa. 1992), and Pocono
International Raceway, Inc. v. Pocono Produce,
Inc., 503 Pa. 80, 468 A.2d 468 (Pa. 1983)).
exception to the statute of limitations created by the
“discovery rule” may apply in cases of
asbestos-related disease, where there is not an immediate and
obvious causal link between a diagnosis (such as lung cancer)
and exposure to asbestos. See Cochran v. GAF Corp.,
542 Pa. 210, 666 A.2d 245 (Pa. 1995) (discussing the
applicability of the “discovery rule” in a case
involving potentially asbestos-related lung cancer).
“The discovery rule is a judicially created device that
tolls the running of the applicable statute of limitations
until the point where the complaining party knows or
reasonably should know that he has been injured and that his
injury has been caused by another party's conduct. The
complaining party must use reasonable diligence to discover
the cause of an injury.” Gustine Uniontown Assocs.,
Ltd. v. Anthony Crane Rental, Inc., L.P., 577 Pa. 14, 30
n.8, 842 A.2d 334, 344 (2004) (citing Crouse v. Cyclops
Industries, 560 Pa. 394, 745 A.2d 606, 611 (Pa. 2000)).
has codified the “discovery rule” as it pertains
to asbestos actions:
(8) An action to recover damages for injury to a person or
for the death of a person caused by exposure to asbestos
shall be commenced within two years from the date on which
the person is informed by a licensed physician that the
person has been injured by such exposure or upon the date on
which the person knew or in the exercise of reasonable
diligence should have known that the person had an injury
which was caused by such exposure, whichever date occurs
42 Pa. C.S.A.§ 5524(8). (Emphasis added.)
also recognizes the “doctrine of fraudulent
concealment” and allows a tolling of the statute of
limitations under this doctrine even in situations of
unintentional deception (i.e., where a deception, albeit
unintentional, results in the concealment of a
plaintiff's claim such that an action is not brought
within the generally applicable statute of limitations). This
doctrine “is based on a theory of estoppel, and
provides that the defendant may not invoke the statute of
limitations if, through fraud or concealment, he causes the
plaintiff to relax his vigilance or deviate from his right of
inquiry into the facts.” Fine v. Checcio, 582
Pa. at 270-71, 870 A.2d at 860 (citing Deemer v.
Weaver, 324 Pa. 85, 187 A. 215 (Pa. 1936)).
either the “discovery rule” or the
“doctrine of fraudulent concealment, ” the
standard applicable in assessing a plaintiff's efforts to
timely bring an action is that of “reasonable
diligence.” Fine v. Checcio, 582 Pa. at 271,
870 A.2d at 861. In general, this is a question of fact for
the jury. In recent years, the Pennsylvania Supreme Court has
provided the following guidance on this matter:
While reasonable diligence is an objective test, “[i]t
is sufficiently flexible...to take into account the
difference[s] between persons and their capacity to meet
certain situations and the circumstances confronting them at
the time in question.” Crouse, 745 A.2d at 611
(quotation omitted). Under this test, a party's actions
are 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 interest and the interest of others.”
Therefore, when a court is presented with the assertion of
the discovery rules application, it must address the ability
of the damaged party, exercising reasonable diligence, to
ascertain that he has been injured and by what cause.
Id. Since this question involves a factual
determination as to whether a party was able, in the exercise
of reasonable diligence, to know of his injury and its cause,
ordinarily, a jury is to decide it. Hayward, 608
A.2d at 1043. See Smith v. Bell Telephone Co. of
Pennsylvania, 397 Pa. 134, 153 A.2d 477, 481 (1959).
Where, however, reasonable minds would not differ in finding
that a party knew or should have known on the exercise of
reasonable diligence of his injury and its cause, the court
determines that the discovery rule does not apply as a matter
of law. Pocono International, 468 A.2d at 471.
Fine v. Checcio, 582 Pa. at 267-68, 870 A.2d at
858-59. (Emphasis added.)
Cochran, the Pennsylvania Supreme Court considered
the “discovery rule” in the context of an
asbestos case. It affirmed the lower court's grant of a
motion for summary judgment on the grounds of the statute of
limitations because it found that “reasonable minds
could not differ as to the decedent's lack of reasonable
diligence rendering this case suitable for summary judgment,
” given that “the decedent waited four
years before diligently pursuing the cause of his
illness.” 542 Pa. at 218-19, 666 A.2d at 250 (emphasis
added). The facts in Cochran were as follows: the
decedent-plaintiff worked at a steel mill from 1943 until
1982 (and smoked cigarettes regularly during essentially this
entire period of almost forty years); he was diagnosed with
lung cancer during a hospital stay in June of 1981 (at which
time he ceased smoking); he first discussed with his
physician that asbestos exposure was a possible cause of his
cancer on March 3, 1985; he then obtained an opinion from an
expert, who opined on August 7, 1985 that his lung cancer was
caused by asbestos exposure; and he thereafter filed an
asbestos action against the defendants on September 27, 1985.
In short, the plaintiffs contended that the first time the
decedent learned that asbestos may have caused his cancer was
August 1985 (or perhaps March 1985), but the Supreme Court
(and the intermediate appellate court) held that the
“discovery rule” did not save his claims because
he had not exercised sufficient diligence in identifying the
cause of his lung cancer as he learned of the lung cancer in
June of 1981, did not inquire of his doctor about the
possibility of asbestos as a cause until March of 1985, and
did not file action until September of 1985.
Fine v. Checcio, the Pennsylvania Supreme Court
considered both the “discovery rule” and the
“doctrine of fraudulent concealment” in the
context of a dental malpractice action. In that case, a
plaintiff delayed in filing suit after a dental procedure
caused lasting numbness in his mouth and face. He contended
that (1) he had no reason to think there was an injury when
the numbness first began because the dentist had led him to
believe that it was a normal side effect of his procedure -
and that (2) he was thereafter continually
“lulled” into non-action for another six months
because the dentist told him on ten separate visits
thereafter that the numbness would take about six months to
wear off. His complaint was filed approximately two years and
one month after the procedure was performed and the numbness
began (i.e., approximately one month beyond the timeline
provided by the statute of limitations). He argued that,
pursuant to the “discovery rule” and/or the
“doctrine of fraudulent concealment, ” the
statute of limitations was tolled for the six month period in
which the dentist had “lulled” him into
non-action by leading him to believe that the numbness was
normal and would eventually disappear after about six months.
The Pennsylvania Supreme Court held that there were factual
issues precluding summary judgment on both the
“discovery rule” theory for tolling of the
statute of limitations and the “doctrine of fraudulent
concealment” theory for such tolling. In doing so, the
Court implicitly held that, if a jury believed that the
dentist had in fact made the “lulling” ...