United States District Court for the Southern District of New York, May 9, 2022
In this asbestos action, decedent Carlo Badamo served on several vessels during his time as a merchant marine from 1944 to 1955. Thereafter, he alleged that he developed asbestos-related cancer and brought a claim under the Jones Act. Three defendants: Farrell Lines, Chiquita, and Chevron, brought motions for summary judgment contending that the decedent’s claim is barred by the three-year statute of limitations. The defendants assert that the decedent underwent X-ray and CT scans which showed a mass on his lung in July 2017. The decedent was also counseled by a doctor who noted that “mass was highly suggestive of advanced lung cancer” in July 2017. Further, the decedent should have known that his injury could have been related to his service, as he filed an asbestos-related lawsuit in 2008. In opposition, plaintiff Sebastian Badamo argued that the instant case was timely filed as this claim did not begin to accrue until the decedent received his biopsy result which was used to diagnose the decedent with lung cancer in August 2017.
The court denied the defendants’ motions. Under the Jones Act, a “cause of action accrues for statute of limitations purposes when a reasonable person knows or in the exercise of reasonable diligence should have known of both the injury and its governing cause.” The court set forth that the decedent could not have known he had lung cancer until after the biopsy conducted in August 2017. However, the question of whether the decedent should have known about his lung cancer at an earlier point is a question for the factfinder. Moreover, the court pointed to Edgett v. Union Pacific Railroad Co. for the proposition “that the suspicion of cancer is insufficient alone to start the statute of limitations for a FELA claim and therefore for a Jones Act claim.” While the defendants argued that a claim can accrue without a definite diagnosis, the court distinguished the cases cited to support that proposition. Specifically, “[c]ontrary to injuries like joint pain and hearing loss, which can manifest to an individual before any medical diagnosis is made, there is no evidence that injuries such as lung cancer manifest in the same manner.” In support, the court cited one of the decedent’s doctors, who testified that the decedent could not have known that he had lung cancer without a biopsy.
Chevron also moved for summary judgment contending that there is no evidence supporting the decedent’s claim that Chevron is liable in this action. In opposition, the plaintiff argued that the Jones Act has a more relaxed causation standard. The court cited Scoran v. Overseas Shipholding Group, which set forth that “[a] plaintiff’s burden of proof in a Jones Act case is not a heavy one.” Indeed:
[t]he elements of a claim of negligence under the Jones Act are (1) that the plaintiff was a member of the crew of a vessel and that he was acting in the course of his employment, (2) that the defendant was the plaintiff’s employer, (3) that the defendant or one of its officers, employees, or agents was negligent, and (4) that such negligence played any part, no matter how slight, in bringing about an injury or illness to the plaintiff.”
In viewing the record in the light most favorable to the plaintiff at the summary judgment stage, the court held that sufficient evidence exists for a reasonable jury to find that the decedent was exposed to asbestos on Chevron’s ships. The decedent testified that he was exposed to asbestos from the ventilation and working conditions in engine rooms on every ship he worked aboard. The court was not persuaded to award Chevron summary judgment simply because the decedent did not state the Chevron vessels by name during his deposition. The court also considered the decedent’s sworn statement that he breathed in dust from asbestos-containing products aboard a number of vessels, including Chevron’s ships. In addition, Navigation and Vessel Inspection Circular publications by the United States Department of Transportation and Coast Guard showed that all four Chevron vessels had asbestos insulation on board the ships. Further, two of the plaintiff’s experts opined that asbestos would have been present on the ships at the time the decedent was on board. Under the relaxed standard, the court found that all of the evidence would permit a jury to find for the plaintiff using circumstantial evidence. Therefore, the court denied all of the motions for summary judgment.