“Discovery Rule” Applied for Plaintiffs’ Claim to Survive Two-Year Statue of Limitations U.S. District Court for the Eastern District of Pennsylvania, March 2, 2017
The plaintiffs asserted that the decedent, Joseph Conneen, was exposed to asbestos while working as a pipefitter and plumber from 1962-80 at the Philadelphia Naval Shipyard and Rohm and Haas. The decedent died of lung cancer. The complaint was filed on January 20, 2015. In March 2015, the case was removed to the U.S. District Court for the Eastern District of Pennsylvania as part of MDL-875. Defendant Goulds moved for summary judgment on the basis of Pennsylvania’s two-year statute of limitations. The court denied this motion.
The plaintiffs provided an affidavit summarizing the events surrounding Mr. Conneen’s diagnosis and discovery of asbestos as a potential cause of his lung cancer. Although the decedent was diagnosed in December 2012, he did not discover asbestos as a potential cause until February 12, 2013. Although discovery was allowed on the statute of limitations issue, including a potential deposition of Mr. Conneen, he was never deposed and the defendants relied exclusively on his December 2012 medical records.
At the outset the court noted that the plaintiffs alleged both land-based (state law applied) and on-ship (maritime law applied) exposures. The outcome was the same, regardless of whether state or maritime law applied.
Under Pennsylvania law, the statute of limitations for an asbestos-related injury was generally two years from the date on which a claim may be brought. Pennsylvania employed the “discovery rule” in cases where an injured party was unable to know of both (1) the fact of injury and (2) the cause of that injury. This rule may apply in cases of asbestos-related disease, where there is not an immediate and obvious causal link between a diagnosis and exposure to asbestos. Pennsylvania also allowed a tolling of the statute through the “doctrine of fraudulent concealment,” even in situations of unintentional deception. Under both rules, the plaintiffs must have undertaken “reasonable diligence” in timely bringing an action. The court analyzed various Pennsylvania Supreme Court cases in which the court analyzed what constituted “reasonable diligence.”
Under maritime law, the statute of limitations was three years after the cause of action arose. Causes of action accrued when a plaintiff had a reasonable opportunity to discover his injury, its cause, and the link between the two.
The defendant argued the plaintiffs’ claims were barred because medical records supported that Mr. Conneen knew of his lung cancer diagnosis and had discussed with his doctors his asbestos exposures. Further, Mr. Conneen was not diligent in attempting to discover the cause of his lung cancer; the fact that he never smoked should have heightened his inquiry. The plaintiffs argued Mr. Conneen was reasonably diligent in inquiring about the cause of his lung cancer since he determined within two months of his diagnosis that asbestos may have been a cause. Further, none of his doctors advised him that asbestos may have been a cause. In support, the plaintiff provided an affidavit of Mr. Conneen stating that he first learned asbestos may have been a cause during a February 12, 2013 meeting with his doctor, in which he inquired about the cause.
The court found that under maritime law, defendant’s motion should be denied because the statute of limitation was three years. Under Pennsylvania law, the motion is also denied. First, although defendants rely on one medical record from December 18, 2012, mentioning a history of asbestos exposure, there was no indication that this document was ever provided to Mr. Conneen, or that this issue was ever discussed with Mr. Conneen. A subsequent letter from one of his doctors denied any worrisome asbestos exposures. Five separate physicians involved in Mr. Conneen’s care were aware of his asbestos exposure, but according to Mr. Conneen, none of them informed him that asbestos may be a cause until February 12, 2013.
Second, the court could not say that Mr. Conneen did not act with reasonable diligence. Contrary to previous cases analyzed by Pennsylvania courts on this issue, it took less than two months from the date of his diagnosis for Mr. Conneen to discover the potential link between his lung cancer and asbestos exposures. Further, the court could not conclude that the doctrine of fraudulent concealment applied to toll the statute, as there was no evidence that decedent’s doctors acted as agents for defendants to unintentionally deceive Mr. Conneen by concealing his potential claim.