Cancer Claim Allowed Under 2-Disease Rule, Pa. High Court Says

Compensation from some defendants for nonmalignant asbestos diseases does not preclude a plaintiff's subsequent recovery for cancer against a new defendant, a divided Pennsylvania Supreme Court has ruled.

In a 4-2 decision the court reversed summary judgment for John Crane Inc. in two asbestos-related lung cancer suits on statute-of-limitations bases.

The decision will affect only those plaintiffs whose first suits for nonmalignant diseases were filed before Pennsylvania became a two-disease state in 1992 and now have cancer-related claims against different defendants, according to attorney Howell K. Rosenberg of Brookman, Rosenberg, Brown & Sandler, who represented the plaintiffs in this case.

A Philadelphia trial court granted Crane summary judgment in 2003 in suits filed by two men who said occupational exposure to asbestos caused them to develop lung cancer.

Kenneth Abrams and John Shaw filed their suits that year, within three months of their cancer diagnoses, but Crane said the plaintiffs had successfully sued several other companies for nonmalignant asbestos-related injuries in the 1980s. Crane said it should have been named in those suits that included claims for increased risk and fear of developing cancer.

The trial court agreed that the suit against Crane should have been filed within two years of the plaintiffs' diagnoses with an asbestos-related disease and were therefore time-barred.

The plaintiffs died after the trial court's judgment. Their widows, Eleanor Abrams and Marilyn Shaw, were substituted as plaintiffs and appealed the ruling.

The Pennsylvania Superior Court agreed with the lower court in 2007.

In its 5-4 decision the panel said the 1980s-era lawsuits "were premised on the assertion that Mr. Shaw and Mr. Abrams would contract cancer in the future as a result of occupational exposure to asbestos," and therefore they "pertained to the same malignant asbestos-related disease for which appellants now seek to recover damages."

The plaintiffs asked the state Supreme Court to review.

A four-justice majority noted that after the original lawsuits were filed in the mid-1980s, Pennsylvania adopted the two-disease rule. In Marinari v. Asbestos Corp. Ltd., 612 A.2d 1021 (Pa. Super. Ct. 1992), the state Superior Court said a plaintiff's knowledge of a nonmalignant asbestos condition does not trigger the limitations period on a later suit for a separately diagnosed lung cancer.

Crane argued that, despite Marinari, no Pennsylvania court has allowed a plaintiff to recover damages for increased risk and fear of cancer and then later sue for an actual diagnosis of cancer.

The company said the finality of judgments and the avoidance of double recovery compelled a ruling affirming the Superior Court.

Justice Debra M. Todd, writing for the majority, said the Superior Court wrongly concluded that the plaintiffs' earlier risk-of-cancer claims were identical to their present claims for damages for lung cancer.

"Cancer and non-cancer diseases clearly give rise to separate claims," the majority said.

The high court also held that defendants enjoy no common-law or statutory right of repose with respect to asbestos cases and remanded the case to allow the plaintiffs to seek damages from Crane for lung cancer.

Justices J. Michael Eakin, Max Baer and Seamus P. McCaffery joined in the majority.

Justice Thomas G. Saylor and Chief Justice Ronald D. Castille dissented. They said the plaintiffs' claims were not revived by the subsequent adoption of the two-disease rule.

"Under the legal framework in effect at the time appellants initiated their lawsuits in the mid-1980s, the two-year statute of limitations applied to all claims arising from asbestos exposure. This limitation applied to any claims that appellants could have brought against Crane," the dissenters said.

Justice Jane C. Greenspan did not participate in the consideration of the case.

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The plaintiffs are represented by Howell K. Rosenberg, Laurence H. Brown and Steven J. Cooperstein of Brookman, Rosenberg, Brown & Sandler in Philadelphia.The defendant is represented by William R. Adams of Dickie, McCamey & Chilcote in Philadelphia and Michael A. Pollard of Baker & McKenzie in Chicago.