By: Tiffany Giangiulio

The Pennsylvania Supreme Court has issued a significant ruling, adverse to the interests of defendants, in asbestos litigation in the case of Abrams/Shaw v. John Crane, Inc., 681 A.2d 198 (Pa. 2009). The Supreme Court held that a plaintiff’s prior recovery for increased risk and fear of the development of asbestos-related cancer does not preclude a subsequent recovery, from a new defendant, of damages for the actual development of asbestos-related lung cancer. The ultimate effect of this ruling could result in defendants (as a class) paying full compensation for a second time to a plaintiff who had previously recovered for fear and risk of cancer when Pennsylvania had such remedies available (prior to 1992). Of significant concern, the Supreme Court also expressly held that no statutory or common law right of repose exists with respect to asbestos cases.

Brief Pennsylvania History of Claims/Remedies Available for Plaintiffs

Pennsylvania initially was a “one disease” jurisdiction. A plaintiff was required to file a single cause of action for all present and future harm within two (2) years of the initial diagnosis of any asbestos-related condition. Cathcart v. Keene Industrial Insulation, 471 A.2d 493 (Pa. Super. 1984). Under the one disease rule, plaintiffs diagnosed with non-malignant asbestos-related diseases were able to recover damages for risk and fear of developing an asbestos-related cancer in the future. Pennsylvania subsequently became a “two disease” jurisdiction. In Marinari v. Asbestos Corp. Ltd., the Superior Court of Pennsylvania held 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. 612 A.2d 1021 (Pa. Super. 1992). In this case, the plaintiff had been diagnosed with asymptomatic pleural thickening in 1983 and did not file suit. He subsequently filed a suit in 1987 after being diagnosed with lung cancer. Therefore, as a result of the Marinari decision, from 1992 forward, a Pennsylvania plaintiff’s discovery of a non-malignant asbestos-related disease did not trigger the statute of limitations with respect to a later, separately diagnosed cancer.

Following Marinari, significant rulings came down regarding non-malignant claims. First, in Giffear v. Johns Manville, the Pennsylvania Superior Court held that pleural thickening, absent disabling consequences or manifest physical symptoms, is a non-compensable injury. 632 A.2d 880 (Pa. Super. 1993). The Pennsylvania Supreme Court subsequently affirmed the Giffear decision in Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996). The Supreme Court held that asymptomatic pleural thickening was not a compensable injury. Further, plaintiffs with asymptomatic pleural thickening did not have claims for emotional distress or fear of cancer as these claims were too speculative. Id.

Abrams/Shaw History

Mr. Abrams filed a Complaint on March 20, 1986 alleging that he contracted asbestos-related “respiratory disease,” diagnosed on April 12, 1984. John Crane, Inc. was not a named defendant in this matter. The case was marked “settled” on the docket as dated April 19, 1993. On February 25, 2003, Mr. Abrams again filed a Complaint alleging that he contracted asbestos-related lung cancer, diagnosed in December, 2002. John Crane, Inc. was a named defendant in the second lawsuit only.

In the companion case, Mr. Shaw filed a Complaint on September 24, 1985 alleging that he contracted asbestos-related “asbestosis and/or restrictive pulmonary disease,” diagnosed on January 2, 1985. John Crane, Inc. was not a named defendant in this matter. The case was marked “settled” on the docket as of January 13, 1993. On February 25, 2003, Mr. Abrams filed a new Complaint alleging that he had contracted asbestos-related lung cancer, diagnosed in December, 2002. John Crane, Inc. was a named defendant in the second lawsuit only.

John Crane filed a joint motion for summary judgment in these matters. The basis of John Crane’s motion was that plaintiffs were diagnosed with non-malignant diseases when Pennsylvania was a single cause of action jurisdiction and, therefore, the statute of limitations for all asbestos diseases, including cancer, commenced with the initial diagnoses. Again, this means that both Mr. Shaw and Mr. Abrams had the right to recover for risk and fear of cancer damages in their non-malignancy suits in the 1980s. Plaintiffs responded to John Crane’s motion with the argument that the facts in these matters were indistinguishable from Marinari and, therefore, the question as to whether they could bring actions for cancer was governed by the separate disease rule of Marinari. Plaintiffs further asserted that this argument had already been decided in their favor in McCauley v. Owens-Corning Fiberglas Corp., 715 A.2d 1125 (Pa. Super. 1998). John Crane, Inc. replied in support of its motion, noting that these cases were distinguishable from Marinari in that the plaintiffs in these cases actually filed actions for their non-malignant diseases. John Crane, Inc. also noted that since these plaintiffs had the right to recover risk and fear of cancer damages in their non-malignancy actions, they could not recover cancer damages in the current actions.

Judge Ackerman of the Philadelphia Court of Common Pleas held that plaintiffs’ failure to assert claims against John Crane, Inc. within two (2) years of their diagnoses with non-malignant diseases barred them from pursuing claims for their lung cancers. He distinguished these cases from Marinari and McCauley on the basis that those plaintiffs, unlike Mr. Abrams and Mr. Shaw, had never sought damages for asbestos-related disease, including risk of cancer or fear of cancer. Therefore, Judge Ackerman granted John Crane, Inc. motion for summary judgment.

The Superior Court affirmed Judge Ackerman’s decision, holding that the Shaw/Abrams cases do not involve retroactive application of Marinari. The Superior Court held that plaintiffs had the opportunity to sue John Crane for increased risk and fear of cancer, but failed to do so despite knowing they were required to assert all claims for present and future harm within two years of the initial asbestos-related diagnosis. The Superior Court specifically noted that neither plaintiff in Giffear or McCauley was compensated for cancer-based claims in a prior asbestos lawsuit, as the plaintiffs were in this case. Judge Lally-Green issued a concurring opinion noting that in the pre-Marinari era, plaintiffs were required to file suit, within the applicable statute of limitations, against all potential asbestos defendants upon being diagnosed with an asbestos-related disease, even if they had not yet developed cancer.

There were two (2) dissenting opinions from the en banc Superior Court decision. Judge Stevens dissented, stating that damages for diagnosed cancer are separate and distinct from the damages the plaintiffs recovered in earlier actions. He further stated that the majority’s holding goes contrary to the goal of Marinari, to avoid denying full damages to a cancer victim. Judge Musmanno also dissented, specifying that the plaintiffs in this matter never sued or recovered damages from John Crane prior to their cancer diagnoses. He stated that the plaintiffs are not barred by the statute of limitations against John Crane because Marinari clearly held that the diagnosis of a non-malignant asbestos-related disease does not trigger the statue of limitations for a later diagnosed cancer. Mr. Abrams and Mr. Shaw both brought their lung cancer suits within two (2) years of their cancer diagnoses.

Supreme Court of Pennsylvania Decision

The issue presented to the Pennsylvania Supreme Court was:

Does prior recovery of damages for increased risk and fear of cancer due to asbestos exposure, awarded under the one-disease rule, preclude a plaintiff from recovering damages for cancer that developed and was diagnosed after the separate disease rule was adopted in Marinari v. Asbestos Corporation, Ltd.?

The Supreme Court held that such a prior recovery does not preclude a subsequent recovery, from a new defendant, of damages for the actual development of asbestos-related lung cancer. In her majority opinion, Madam Justice Todd reversed the Superior Court’s holding and specifically found that Mr. Abrams and Mr. Shaw were in a similar position to the plaintiffs in Marinari and, therefore, retroactive application of the Marinari decision applied.

However, Madame Justice Todd placed emphasis on the fact that plaintiffs did not recover for risk and fear of cancer from John Crane in their first suit. Specifically:

As it stands, however, Appellants’ prior recovery and/or settlement in 1993 with defendants other than Crane does not preclude their current actions against Crane, and the critical factor in determining whether Appellants can maintain an action against Crane is whether Appellants’ action against Crane for damages for lung cancer is timely under the applicable statute of limitations.

The Court reiterated that the plaintiffs’ cause of against John Crane in this case is an individual one, separate and distinct from the causes of action asserted by the plaintiffs against other defendants in the 1980s. Therefore, the fact that plaintiffs asserted risk and fear of cancer claims against other defendants does not preclude a subsequent and timely lawsuit against John Crane for actual cancer.

The Supreme Court further rejected the Superior Court’s conclusion that the plaintiffs’ present claims for damages for lung cancer are identical to their previously litigated risk of cancer claims, and therefore had to have been raised at the same time as their risk of cancer claims. Madame Justice Todd specifically held that cancer and non-cancer diseases “clearly” give rise to separate claims. Furthermore, she specifically held that the plaintiffs’ claims for damages for lung cancer are “clearly” separate and distinct from any claims for risk or fear of cancer that may have existed in the 1980s. Therefore, the statute of limitations for the plaintiffs’ claims against John Crane for lung cancer did not begin to run until their respective diagnoses in December, 2002.

Of particular concern to defendants in asbestos litigation, the Supreme Court explicitly held that no statutory right of repose exists with respect to asbestos cases. The Court reasoned that if the legislature had intended for asbestos exposure cases to be subject to a statue of repose, it would have expressly indicated so in its enactment of 42 Pa.C.S.A §5524(8). The Court also stated the common law theory of repose runs contrary to the holdings of Marinari, Giffear, and Simmons (citing Marinari with respect to latent disease cases, “that a potential defendant’s interest in repose is counterbalanced and outweighed by other factors, including evidentiary considerations, securing fair compensation for serious harm and deterring uneconomical anticipatory lawsuits.” Marinari v. Asbestos Corp. Ltd., 612 A.2d at 1026.)

Justice Saylor filed a dissenting opinion in which Chief Justice Castille joined. Justice Saylor noted that when the plaintiffs failed to name John Crane in the initial 1980s suits, John Crane became entitled to repose afforded by the statute of limitations. In the mid 1980s, Pennsylvania was a one disease jurisdiction and John Crane was potentially liable at that time. The statute of limitations defense was available to John Crane in the mid 1980s case, for example by third party joinder, and therefore, John Crane could have reasonably relied on it. Justice Saylor notes that the majority holding in this case undermines the important goal of repose and finality in the judicial system.

Justice Saylor further explained his dissent from the majority opinion in that under the one disease rule, plaintiffs recovered for increased risk of cancer based on the fact that later recovery for actual development of cancer was unavailable. Plaintiffs who filed claims under the one disease rule recovered for the expected harm that would come from a later diagnosis. Justice Saylor warned that if the Court permits recovery for this subset of plaintiffs that actually contract cancer after recovering for risk or fear of cancer, the Court will be requiring defendants, as a class, to provide full compensation a second time.

Outlook for Defendants in Pennsylvania Asbestos Litigation

The Supreme Court’s decision in the Shaw/Abrams cases poses future problems in Pennsylvania asbestos litigation for defendants. First and foremost, the Supreme Court expressly held that asbestos defendants have no right of repose. Plaintiffs who have had previous non-malignancy claims when Pennsylvania was a one disease jurisdiction and did not sue a certain defendant in that first suit, are free to sue new defendants in a subsequent malignancy suit. Defendants have no right of repose even if they should have been sued in the first suit. With more and more entities filing for bankruptcy, the likelihood of new defendants being sued in second malignancy suits may rise.

In addition, plaintiffs who recovered damages for risk or fear of cancer in non-malignancy suit prior to 1992 (Marinari) may also fully recover damages for a later diagnosed malignancy. While the Court expressly held that these are indeed separate and distinct claims, the Court put great emphasis on the fact that Mr. Shaw and Mr. Abrams had brought the risk and fear of cancer claims against other defendants in the 1980s, not John Crane. Therefore, it appears that the Supreme Court, while not expressly holding it, implied that recovery for the subsequent lung cancer claims would not be proper against those defendants who had paid for fear or risk of cancer in the pre-1992 suits.