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.

Conneen v. Amatek, Inc.

United States District Court, E.D. Pennsylvania

February 28, 2017

JOSEPH CONNEEN AND KATHLEEN CONNEEN, Plaintiffs,
v.
AMATEK, INC., et al., Defendants. Civil Action No. 2:15-cv-1063-ER

          MEMORANDUM

          EDUARDO C. ROBRENO, J.

          This 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.

         Plaintiffs 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 46-49, ¶¶7-16.)

         Plaintiffs have brought claims against various defendants. Defendant Goulds has moved for summary judgment, arguing that Plaintiffs' claims are barred by the applicable statute of limitations.

         I. FACTUAL AND PROCEDURAL HISTORY

         Plaintiffs 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 (Bridesburg neighborhood)

(Exhibit I to Pl. Opp., ECF No. 114 at 48, &5.)

         Defendant 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.

         In 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 that time).

         By way 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.

         It is undisputed that the Complaint in this case was filed on January 20, 2015.

         II. LEGAL STANDARD

         A. Summary Judgment Standard

         Summary 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.

         In 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.

         B. The Applicable Law

         The 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.).

         However, 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.

         For the reasons that follow below, the outcome of Defendant's motion is the same regardless of whether Pennsylvania law or maritime law is applied[1] - 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 law.[2]

         C. Statute of Limitations (Under Pennsylvania Law)

         Under 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 be appropriate).

         Pennsylvania 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)).

         The 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)).

         Pennsylvania 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 first.

42 Pa. C.S.A.§ 5524(8). (Emphasis added.)

         Pennsylvania 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)).

         Under 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.” Id.
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.)

         In 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.

         In 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” ...


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.