(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of
the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity,
portions of any opinion may not have been summarized).
Argued November 30, 1999 -- Decided February 24, 2000
VERNIERO, J., writing for a majority of the Court.
This appeal involves the applicability of the discovery rule to an action for damages for injuries allegedly arising
out of the plaintiff's exposure to asbestos products that would otherwise be barred by the applicable statute of limitations.
Plaintiff, Kazimierz Lapka, was employed by the Essex Chemical Corporation in Sayreville from 1967 to 1984.
He worked as a chemical operator and hot-melt operator, both positions requiring him to mix a liquid with pigment and
asbestos powder in the manufacture of paneling glue. During the course of his employment, Lapka was exposed to
finished and unfinished asbestos products, dust, particles, fibers, and other hazardous substances.
Lapka was first diagnosed with a lung ailment as a result of a chest x-ray taken on February 13, 1981. The
radiologist's report relative to his interpretation of that x-ray noted “mild diffuse fibrotic lung changes.” A second x-ray
about one week later disclosed “pleural thickening” and “increased markings within the lungs.” In March 1981, Lapka's
treating physician made a diagnosis of “pulmonary fibrosis and emphysema.”
Lapka went on disability leave in 1981. When he returned to work, pursuant to the recommendation of both the
company physician and his physician, Lapka was put in a position that did not expose him further to hazardous substances.
That notwithstanding, he continued to experience problems, including shortness of breath, requiring his hospitalization in
June 1984. At that time, he was diagnosed with chronic obstructive pulmonary disease.
On January 14, 1986, Lapka signed a workers' compensation claim petition. In that claim petition, he indicated
that during the course of his employment, he had been “exposed to asbestos, noise and chemicals.” The claim petition was
filed on February 13, 1986. Thereafter, Lapka's attorneys had him examined by a doctor Malcolm H. Hermele, who
reported Lapka's relevant history as related by him. Dr. Hermele concluded that Lapka suffered from emphysema,
restrictive pulmonary disease and small airways disease, all of which had been causally related to or exacerbated by his
exposure to the noxious agents identified by Lapka when he gave the doctor his medical history.
Thereafter, Lapka was again hospitalized in November 1996. The admitting attendant prepared Lapka's personal
history sheet, noting that Lapka had related that he had stopped working in 1984 when he was diagnosed with asbestosis.
Lapka died on November 3, 1996. The record does not reveal the cause of death.
The Lapkas filed their complaint in the Law Division on March 24, 1988 - more than two years after the workers'
compensation claim petition was filed and more than seven years after Lapka was first diagnosed with a lung ailment. The
complaint alleged that Lapka had contracted “chronic asbestos and/or pulmonary disease” during the course of his
employment as a result of being “continuously exposed to both products containing finished and unfinished asbestos
products, dust, particles and fibers.” On November 24, 1997, the trial court dismissed the complaint as not timely filed.
The Appellate Division affirmed in an unreported decision. The panel concluded that Lapka knew his condition
was asbestos-related “at least as of the date he signed and filed his workers' compensation petition in January 1986.” The
court also concluded that because the workers' compensation claim petition unquestionably established plaintiff's
knowledge of the essential facts, no Lopez (evidentiary) hearing was required to determine the applicability of the
discovery rule.
The Supreme Court granted the Lapkas' petition for certification.
HELD: Because the record unquestionably establishes Lapka's awareness of his exposure to asbestos and its possible
cause of or contribution to his injury more than two years before he filed his action for damages, the discovery rule does
not operate to delay the accrual of his cause of action, and his suit is thus time-barred by the two-year statute of limitations.
1. The workers' compensation petition leaves no doubt as to the state of Lapka's knowledge as of the date of that petition
and the record establishes that Lapka knew or should have known that he had a basis for a claim more than two years
before the complaint was filed. (pp. 11-13)
2. A sworn and signed workers' compensation petition cannot be disavowed by a plaintiff subsequently seeking to
establish a lack of knowledge of the asserted injury and its cause. (pp. 13-14)
3. Medical or legal certainty is not required to impute discovery. Rather, discovery is imputed if a plaintiff is aware of
facts that would alert a reasonable person to the possibility of an actionable claim. (pp. 14-15)
4. The fact that Lapka himself provided Dr. Hermele with his medical history, chronicling his exposure to asbestos and
other noxious substances, suggests that prior to the date of that examination, Lapka knew, or his records revealed, that
exposure to asbestos caused or at least contributed to his injury. (pp. 15-16)
5. Medical confirmation of a plaintiff's injury in a toxic tort case is not necessary for a cause of action to accrue. Rather,
the existence of “some reasonable medical support” is sufficient to impute discovery. (pp. 16-17)
6. Because the record unquestionably establishes Lapka's awareness of the essential facts, no formal hearing was
necessary to resolve the discovery rule issue. (p. 18)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN has filed a separate dissenting opinion. Justice Stein believes that the workers' compensation
claim petition in the context of this record does not support the Court's conclusion that Lapka knew his occupational
exposure to asbestos was the cause of his injuries. Thus, Justice Stein would reverse the matter to the Appellate Division
and remand the matter to the Law Division to conduct a Lopez hearing to determine whether the discovery rule precludes
the dismissal of the complaint on statute of limitations grounds.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI, COLEMAN, and LONG join in JUSTICE
VERNIERO's opinion. JUSTICE STEIN has filed a separate dissenting opinion in which JUSTICE O'HERN joins.
SUPREME COURT OF NEW JERSEY
A-
93 SEPTEMBER TERM 1998
KAZIMIERZ LAPKA and EMILIA
LAPKA, his wife,
Plaintiffs-Appellants,
v.
PORTER HAYDEN COMPANY, formerly
known as H.W. Porter Company
and Reid Hayden, and H.M. ROYAL
CO., INC.,
Defendants-Respondents,
and
THE MANVILLE CORPORATION
ASBESTOS DISEASE COMPENSATION
FUND (THE MANVILLE FUND), as
the responsible designated
legal entity for the
liability of Canadian Johns
Manville Amiante Ltd.,
formerly Canadian Johns
Manville Asbestos Ltd.; Johns
Manville Sales Corporation
successor to and in lieu of
Johns-Manville Products
Corporation; Johns-Manville
Canada Inc., formerly known as
Canadian Johns-Manville Co.
Ltd.; Johns-Manville
Corporation; UNION CARBIDE;
WHITAKER, CLARK & DANIELS;
JOHN DOE CORPORATIONS (a
fictitious name representing
one or more corporations
and/or companies engaged in
the business of manufacturing,
supplying and distributing
asbestos containing products,
fibers and dust); and RICHARD
ROE CORPORATIONS (a fictitious
name representing one or more
general contractors at the
plaintiff's places of
employment) and JUDY DOE
CORPORATIONS (a fictitious
name representing one or more
legal entities who stand in
the shoes of John Doe,
Richard Roe either as
successor in interest, alter
ego or by other equitable
doctrine which makes them
responsible for the John Doe
liability),
Defendants.
Argued November 30, 1999 -- Decided February 24, 2000
On certification to the Superior Court, Appellate Division.
Carl W. Swanson argued the cause for
appellants (Lynch Martin Kroll, attorneys).
John C. Garde and Terrence Smith argued the
cause for respondents (McCarter & English,
attorneys for Porter Hayden Company and
McGivney & Klugler, attorneys for H.M. Royal
Co., Inc., attorneys; Mr. Garde, Mr. Smith
and Debra M. Perry, of counsel; Paul L.
Kattas and Edward R. Schreiber, III, on the
briefs).
The opinion of the Court was delivered by
VERNIERO, J.
Plaintiffs Kazimierz Lapka and his wife, Emilia Lapka,
commenced this action by filing a complaint in the Law Division
on March 24, 1988. (In this opinion, the singular plaintiff
refers to Kazimierz Lapka.) The complaint alleges injury caused
by occupational exposure to asbestos.
We are called on to determine whether the action is barred
by the two-year statute of limitations found at N.J.S.A. 2A:14-2.
That determination requires us to consider the applicability of
the “discovery rule,” an equitable principle that delays accrual
of a cause of action “until the injured party discovers, or by an
exercise of reasonable diligence and intelligence should have
discovered that he may have a basis for an actionable claim.”
Lopez v. Swyer,
62 N.J. 267, 272 (1973).
The trial court and Appellate Division each held that
plaintiffs' suit was time-barred. The courts concluded, based on
medical records and plaintiff's earlier submission of a workers'
compensation claim, that the cause of action accrued more than
two years before the suit was filed. We agree and affirm.
Plaintiff was employed by the Essex Chemical Corporation (“Essex Chemical” or the “company”) in Sayreville from 1967 to 1984. He worked as a chemical operator and hot-melt operator. Those jobs required plaintiff to mix a liquid with pigment and asbestos powder in the manufacture of paneling glue. Plaintiff also assisted in the manufacture of other products, including urethane and paint. During the course of his employment, plaintiff was exposed to finished and unfinished asbestos products, dust, particles, fibers, and other hazardous substances.
Plaintiff was first diagnosed with a lung ailment as a result of a chest x-ray taken on February 13, 1981. The radiologist who examined the x-ray made this notation in the patient's record: “OPINION: Findings of pulmonary emphysema with mild diffuse fibrotic lung changes as well.” We note that “[c]ontinuous breathing of asbestos-laden air will cause an eventual concentration of the particles in the lung tissue . . . [and]. . . the noxious effect of these rock particles causes the body to set up an inflammation until eventually fibrosis occurs.” Sloane-Dorland Annotated Medical-Legal Dictionary 285 (1987).
About one week later, on February 21, 1981, plaintiff was admitted to Raritan Bay Medical Center complaining of shortness of breath. Another chest x-ray was taken on February 22, 1981 that showed, according to notations in the medical record, that plaintiff suffered from “pleural thickening” and “increased markings within the lungs” compatible with a “previous inflammatory disease.”
Upon plaintiff's discharge from the hospital on March 1, 1981, his treating physician, Dr. Thaddeus A. Balinski, rendered a final diagnosis, noting in the patient's discharge papers: “pulmonary fibrosis and emphysema.” Dr. Balinski also signed and submitted a physician's supplementary statement to plaintiff's insurance carrier. Consistent with Dr. Balinski's earlier diagnosis, the supplementary statement dated June 29, 1981, indicated a diagnosis of “emphysema.”
Plaintiff went on disability leave in 1981. The loss prevention manager for Essex Chemical, Karl J. Trommler, Jr., expressed concern about returning plaintiff to the position of hot-melt operator in view of his diagnosed condition. In a letter dated July 7, 1981 to Dr. Balinski, Trommler described plaintiff's work environment and asked Dr. Balinski to “help me to decide what placement is in Mr. Lapka's best interest from a health standpoint.” Trommler noted that as a hot-melt operator, plaintiff would add raw materials to the hot-melt reactor and thereupon be exposed to hot air, fumes, coal tar, various hyrocarbon groups, and trace impurities driven off during the heating process. Dr. Balinski replied in a letter dated August 3, 1981, stating: “I believe that in the best health and interest of Kazimierz Lapka, he not be returned to his regular job but to another job that we discussed in a less toxic area.” That belief was consistent with an earlier opinion expressed by the company physician, Dr. Francis X. Urbanski. Dr. Urbanski stated in a July 23, 1981 letter to Trommler: “The distinct possibility of future occupational inhalation exposure could possibly cause aggravation to his pulmonary status. Suitable occupational placement in the future must include a work environment that prevents any possibility of significant inhalation exposure.”
Plaintiff returned to work in a new position, that of chief operator. That job required him to receive and record data concerning certain reactors at the company.
Plaintiff was again admitted to the Raritan Bay Medical Center on June 6, 1984. At the time he was experiencing shortness of breath, weight loss, and general weakness. At the medical center, he was again diagnosed with chronic obstructive pulmonary disease (“COPD”). An x-ray confirmed that diagnosis. On the patient's admitting form, Dr. Balinski noted that plaintiff “work[ed] in a chemical factory [and was] possibl[y] allerg[ic] to some chemicals and [would] feel[] [shortness of breath] while working.” Plaintiff signed a workers' compensation claim petition on January 14, 1986. The petition, a two-page form, is printed and made available by the Division of Workers' Compensation (the “Division”) pursuant to N.J.S.A. 34:15-51. The form requires a petitioner to fill in specific information about a claim. The upper portion of the form states in pre-printed text:
Petitioner [plaintiff], alleging that the Petitioner sustained an injury by an accident arising out of and in the course of petitioner's employment with Respondent [Essex Chemical], compensable under R.S. 34:15-7 et seq., supplements and amendments, respectfully states:
In the space on the petition labeled DESCRIBE EXTENT AND CHARACTER OF INJURY, plaintiff filled in the following information: “PETITIONER SUSTAINED PULMONARY, AND INTERNAL ORGAN DISABILITY; AS WELL AS BINAURAL LOSS OF HEARING AND BILATERAL EYE DISABILITY.” On that part of the form labeled DATE OF ACCIDENT OR DATES OF OCCUPATIONAL EXPOSURE, plaintiff stated: “1967 to June 5, 1984.” In the space on the petition labeled WHERE, plaintiff stated: “Respondent's premises.” In the space on the form labeled HOW, plaintiff stated: “PETITIONER EXPOSED TO ASBESTOS, NOISE AND CHEMICALS.” In the space on the form labeled DATE INJURY REPORTED TO EMPLOYER AND TO WHOM, plaintiff stated: “Respondent had constructive notice.” An attorney from the law firm of Franz and Mintz notarized plaintiff's signature, which appears at the bottom portion of page two of the petition. Consistent with standard oath-taking language, the text immediately preceding the attorney's signature provides: “STATE OF NEW JERSEY/COUNTY OF MIDDLESEX: ss/Subscribed and sworn or affirmed to before me this 14th day of JANUARY, 1986.”
Plaintiff filed the claim petition with the Division on February 13, 1986. Thereafter, plaintiff's attorneys requested that Dr. Malcolm H. Hermele examine plaintiff. The examination occurred on March 24, 1986. Dr. Hermele summarized his examination and conclusions in a letter to Franz and Mintz dated the same date. Dr. Hermele's letter states in part:
At your request, I examined Kazimierz Lapka in my office on March 24, 1986. He gave me the following history:
Mr. Lapka was employed by Essex Chemical Corp. from 1967 to May, 1984 as a chemical operator. He was exposed to dust, fumes, dirt, asbestos, carbon monoxide, chemicals used in plastic products, petroleum products, paints, powders, solvents, acetone and extremes in temperature . . . .
Mr. Lapka complains of coughing, bringing up phlegm, experiencing shortness of breath. Patient cannot climb one flight of stairs without shortness of breath and uses two pillows at night in order to be able to sleep and breathe properly. On getting up in the morning, patient has coughing fits which go on for quite a while and are productive of a whitish yellow phlegm. All the above complaints have been going on for more than 2 years . . . .
. . . .
Conclusions: Based upon the history and the
physical examination it is my opinion that
Kazimierz Lapka has emphysema, restrictive
pulmonary disease and small airways disease
for which I would estimate a permanent
disability of 65" of total. Based upon the
history it is my opinion that the chest
condition is causally related to or
exacerbated by the exposure to the above
pulmonary noxious agents while employed by
Essex Chemical Corp.
As noted in the letter, Dr. Hermele reached his conclusions based
upon a physical examination and the patient's history, which was
given to him by plaintiff.
Plaintiff was again admitted to Raritan Bay Medical Center
on November 2, 1996. The admitting attendant prepared
plaintiff's personal history sheet, noting on the sheet: “stoped
[sic] working in 1984 when he was diagnosed [with] asbestos.”
The form also indicates that the history so noted was given by
“patient and patient's wife.” Plaintiff's patient chart also
includes this entry: “[a]ccording to patient and his wife, this
pt [patient] has H/O [history of] emphysema & asbestosis &
silicosis since '84.” Another entry indicates that plaintiff
“had h/o [history of] COPD for > 20 yr, c [with] asbestosis
silicosis diagnosed about 12 years ago.” Plaintiff died on
November 3, 1996. The record does not reveal the cause of death.
Plaintiffs filed their complaint in the Law Division on
March 24, 1988. It alleges that plaintiff contracted “chronic
asbestos and/or pulmonary disease” and suffered other injuries
during the course of his employment as a result of being
“continuously exposed to both products containing finished and
unfinished asbestos products, dust, particles and fibers.”
Plaintiffs later amended the complaint to include defendants
Porter Hayden Company and H. M. Royal Co., the designated legal
entities of certain manufacturers and suppliers of asbestos
containing products. Essex Chemical was named as a defendant in
the original complaint for purposes of obtaining discovery only.
The trial court dismissed the complaint as untimely on
November 24, 1997. (After the notice of appeal was filed in the
Appellate Division, the Law Division judge vacated a previous
order permitting the substitution of plaintiff Emilia Lapka as
Executrix of the Estate of Kazimierz Lapka. The parties' briefs
to this Court retained the earlier caption.) The Appellate
Division affirmed in an unreported decision. The panel concluded
that plaintiff knew his condition was asbestos-related “at least
as of the date he signed and filed his workers' compensation
petition in January 1986.” The court also determined that,
because the workers' compensation petition “unquestionably
established plaintiff's knowledge of the essential facts,” no
evidentiary hearing was required as might otherwise be conducted
in keeping with the procedures outlined in Lopez, supra,
62 N.J. 267. We granted plaintiffs' petition for certification,
158 N.J. 687 (1999).
The statute of limitations governing this action is found at N.J.S.A. 2A:14-2, which states:
Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.
Applying discovery rule principles to this statute, we must ask: Did plaintiffs file suit within two years from the date they discovered, or by the exercise of reasonable diligence and intelligence should have discovered, the basis for an actionable claim?
According to defendants, the hospital records demonstrate that plaintiff knew that he had been exposed to asbestos no later than 1984, and knew also that he was suffering from work-related respiratory problems. They emphasize that, in January 1986, plaintiff signed the workers' compensation petition specifying that he suffered from a pulmonary condition related to occupational exposure to asbestos. Thus, defendants argue that the medical records, together with the filing of the workers' compensation claim, indicate that plaintiffs knew or should have known that they had a basis to sue more than two years before the complaint was filed.
Plaintiffs counter that the entries in the hospital records do not establish that either of them believed in 1984 that plaintiff suffered from asbestosis. Alternately, they argue that even if the hospital records are viewed as establishing that plaintiff knew about asbestosis in 1984, those records do not establish that he had, in fact, been so diagnosed. In their view, the records do not conclusively show that plaintiff believed in 1984 that he suffered from an asbestos-related illness. With respect to the workers' compensation petition, plaintiffs assert that because plaintiff was not diagnosed specifically with asbestosis until March 24, 1986, the date of Dr. Hermele's examination, the petition does not mark their discovery of the cause of action.
We conclude that the record establishes that plaintiff knew or should have known that he had a basis for a claim more than two years before the complaint was filed. As early as 1981, plaintiff's treating physician, Dr. Balinski, stated to the company manager that plaintiff should be transferred into a “less toxic area.” The company physician, Dr. Urbanski, concurred. Other parts of the record, including the 1996 hospital admitting forms, indicate that plaintiff knew enough by 1984 to prompt diligent inquiry as to whether the exposure to workplace substances was having a deleterious effect on his health.
Plaintiff's workers' compensation petition leaves no doubt as to the state of his knowledge as of the date of that petition, January 14, 1986. The petition unambiguously alleges occupational exposure to asbestos as a cause of plaintiff's injury. It also avers that the company “had constructive notice” of both the asserted injury and its cause. It logically follows that if the company had such notice, so too did plaintiff for purposes of any subsequent action.
By statute, a workers' compensation petition must be “verified by the oath or affirmation of the petitioner.” N.J.S.A. 34:15-51. The respondent's answer must be similarly verified. N.J.S.A. 34:15-52. The intent of these verification provisions “is that in proceedings brought before the Division the issues be narrowed by specific averments supported by factual contentions.” Conway v. Mister Softee, Inc., 51 N.J. 254, 261 (1968). On the facts presented, we cannot overlook the information contained in plaintiff's sworn petition without jeopardizing the integrity of the petition itself.
Courts in other jurisdictions are in wide agreement that a sworn and signed workers' compensation petition cannot be disavowed by a plaintiff subsequently seeking to establish a lack of knowledge. See, e.g., Ackler v. Raymark Indus., 551 A.2d 291, 293 (Pa. Super. Ct. 1988) (stating that “it is not necessary that the exact nature of his injury be known so long as it objectively appears that he is reasonably charged with the knowledge that he has an injury caused by another”); Price v. Johns-Manville Corp., 485 A.2d 466 (Pa. Super. Ct. 1984) (affirming the importance of averments contained in a sworn and signed workers' compensation petition when determining plaintiff's knowledge of asbestos exposure); Meeker v. American Torque Rod of Ohio, Inc., 607 N.E.2d 874 (Ohio Ct. App. 1992) (holding that workers' compensation claim averring chemical exposure sufficient to establish plaintiff's knowledge).
Plaintiffs suggest that the discovery rule delays accrual of an action until a claimant acquires an exact medical diagnosis of an asserted condition. We disagree. We impute discovery if the plaintiff is aware of facts that would alert a reasonable person to the possibility of an actionable claim; medical or legal certainty is not required. As we explained in Burd v. New Jersey Tel. Co., 76 N.J. 284, 291, 293 (1978):
It was not our intent . . . to hold that a claimant's time to sue, for limitations purposes, does not begin to run until he knows or is advised by a lawyer that facts of which he does, or should, reasonably have knowledge, give rise to a legal cause of action against a particular defendant. The statute of limitations necessarily imputes conclusively to a claimant knowledge that the law affords or may afford a cause of action on the basis of those facts of injury and causal relationship which in law do evoke a cause of action. In this regard it is of no consequence whether the cause of action arises in the field of products liability or any other aspect of tort law, or as to the degree of expertise which different lawyers possess in one such field or another. The discovery principle modifies the conventional limitations rule only to the extent of postponing the commencement of accrual of the cause of action until plaintiff learns, or reasonably should learn, the existence of that state of facts which may equate in law with a cause of action.
. . . .
. . . . The proofs need not evoke a finding that plaintiff knew for a certainty that the factual basis was present. It is enough that plaintiff had or should have discovered that he “may have” a basis for the claim.
See also Savage v. Old Bridge-Sayreville Med. Group, 134 N.J. 241, 248 (1993) (providing that discovery will be imputed when an injury has occurred and there exists the awareness of “facts that would alert a reasonable person exercising ordinary diligence that a third party's conduct may have caused or contributed to the cause of the injury and that conduct itself might possibly have been unreasonable or lacking in due care”).
Although cited by plaintiffs in support of their argument, the letter by Dr. Hermele is consistent with a finding that plaintiffs' cause of action accrued more than two years in advance of the filing of the complaint. That letter chronicled plaintiff's history at Essex Chemical, including the fact that he was exposed to asbestos as well as other noxious agents. By the terms of the letter, Dr. Hermele was provided such history by plaintiff himself. That suggests that, prior to the date of the examination, plaintiff knew, or his records revealed, that exposure to asbestos caused or at least contributed to his injury.
Dr. Hermele examined plaintiff on March 24, 1986, two years to the day prior to the filing of plaintiffs' Law Division action. The inference is plain, if not compelling: to provide personal history to Dr. Hermele for use in the examination, plaintiff must have had knowledge of facts or access to pertinent information in advance of that date. Within that time frame, plaintiff's knowledge or awareness of facts would mark the accrual of the cause of action at a point outside of the allowable limitations period. Plaintiffs urge a different conclusion, relying in part on Vispisiano v. Ashland Chem. Co., 107 N.J. 416 (1987). The plaintiff there sought recovery of damages for injuries resulting from his exposure to toxic chemical waste during his employment at a toxic-waste disposal site. Although the record in Vispisiano contained information allowing the plaintiff to draw a causal connection between his symptoms and occupational exposure to toxins, his doctors discouraged the belief that there was a connection sufficient to form the basis of a cause of action. The plaintiff persisted in learning the cause of his symptoms and eventually obtained the proper diagnosis. On those facts, we held that plaintiff's suit was not untimely in accordance with the discovery rule.
We did not hold in Vispisiano that medical confirmation of plaintiff's injury in a toxic tort case is necessary for a cause of action to accrue. Indeed, we carefully noted the distinction between “some reasonable medical support” and “medical confirmation,” requiring only the former for purposes of imputing discovery. Id. at 437. We explained: “[W]e do not insist on medical confirmation as such: a physician's willingness to include chemical poisoning in the differential diagnosis would probably suffice, as would any other reasonably reliable source of information.” Ibid. The record here contains numerous indications of plaintiff's condition, including plaintiff's own averments contained in the workers' compensation petition. The record amply provides “some reasonable medical support” in respect of plaintiffs' claim; thus, our conclusion is in accord with Vispisiano.
We hold that plaintiffs' suit is time-barred by the provisions of N.J.S.A. 2A:14-2 and that the discovery rule does not operate on these facts to delay the accrual of the cause of action. Because the discovery rule, at its root, is a rule of equity, we must consider elements of fairness pertaining to all parties, not just to those asserting the benefits of the rule. After all, statutes of limitations are statutes of repose and the principal consideration underlying their enactment is one of fairness to the defendant . . . . It is not every belated discovery that will justify an application of the rule lifting the bar of the limitations statute. The interplay of the conflicting interests of the competing parties must be considered.
We sympathize with the plight of any worker exposed to hazardous
substances. However, we are bound to principles of fairness and
equity that serve to protect all litigants. We are satisfied
that those principles require us to affirm the judgment below.
Accordingly, the judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI, COLEMAN, and LONG join in JUSTICE VERNIERO's opinion. JUSTICE STEIN has filed a separate dissenting opinion, in which JUSTICE O'HERN joins.
SUPREME COURT OF NEW JERSEY
A- 93 SEPTEMBER TERM 1998
KAZIMIERZ LAPKA and EMILIA
LAPKA, his wife,
Plaintiffs-Appellants,
v.
PORTER HAYDEN COMPANY,
formerly known as H.W. Porter
Company and Reid Hayden, and
H.M. ROYAL CO., INC.,
Defendants-Respondents,
and
THE MANVILLE CORPORATION
ASBESTOS DISEASE COMPENSATION
FUND (THE MANVILLE FUND), as
the responsible designated
legal entity for the
liability of Canadian Johns
Manville Amiante Ltd.,
formerly Canadian Johns
Manville Asbestos Ltd.; Johns
Manville Sales Corporation
successor to and in lieu of
Johns-Manville Products
Corporation; Johns-Manville
Canada Inc., formerly known as
Canadian Johns-Manville Co.
Ltd.; Johns-Manville
Corporation; UNION CARBIDE;
WHITAKER, CLARK & DANIELS;
JOHN DOE CORPORATIONS (a
fictitious name representing
one or more corporations
and/or companies engaged in
the business of manufacturing,
supplying and distributing
asbestos containing products,
fibers and dust); and RICHARD
ROE CORPORATIONS (a fictitious
name representing one or more
general contractors at the
plaintiff's places of
employment) and JUDY DOE
CORPORATIONS (a fictitious
name representing one or more
legal entities who stand in
the shoes of John Doe,
Richard Roe either as
successor in interest, alter
ego or by other equitable
doctrine which makes them
responsible for the John Doe
liability),
Defendants.
STEIN, J., dissenting.
The Court bars petitioners' products liability claim on
statute of limitations grounds, relying primarily on typed
language in a workers' compensation claim petition that included
“asbestos,” as well as “noise” and “chemicals,” among the
substances to which decedent's exposure allegedly contributed to
his work-related disability. The uncontroverted medical evidence
in this record reveals that none of the many physicians that had
examined decedent ever had associated his pulmonary condition
with asbestos exposure, suggesting that the reference to asbestos
on the claim petition was gratuitous and without foundation.
Nevertheless, exalting literalism over substance, the Court bars
petitioners' product liability suit, and in the process
diminishes the significance of this Court's ruling in Vispisiano
v. Ashland Chemical Co.,
107 N.J. 416 (1987).
In Vispisiano, this Court reversed a summary judgment in
favor of defendants on statute of limitations grounds because the
facts were insufficient to put the plaintiff on notice that
exposure to chemicals at work might have caused the injuries that
were the subject of his suit. We held that “before a toxic-tort
case plaintiff may be deemed, in a discovery rule context, to
have the requisite state of knowledge that would trigger the
running of the statute of limitations [plaintiff's] impression of
the nature of the injury and of its cause must have some
reasonable medical support.” Id. at 437 (internal quotations
omitted). The underlying facts in Vispisiano were adduced at a
Lopez hearing, used to determine when a plaintiff knew or had
reason to know of the existence of a cause of action. Lopez v.
Swyer,
62 N.J. 267 (1973).
Petitioners will not be afforded that procedural protection
because the Court's opinion concludes that “the record here
unquestionably establishes plaintiff's awareness of the essential
facts” necessary to find that petitioners knew or reasonably
should have known of their cause of action. Because the products
liability complaint was filed on March 24, 1988, the Court holds
that the statute of limitations bars plaintiffs' claim because
decedent knew or should have known of the existence of his cause
of action when he filed a workers' compensation petition on
January 14, 1986. Although petitioners' attorney did not
specifically request a Lopez hearing in response to defendants'
summary judgment motions, this record demonstrates that a Lopez
hearing was required to afford petitioners an opportunity to
establish that the discovery rule should preclude defendants'
statute of limitations defense.
I
Kazmierz Lapka began working for Essex Chemical Corporation
(Essex Chemical) in 1967. On February 9, 1981, Lapka left work
for an extended period of time due to health problems. After
undergoing a chest x-ray on February 13, 1981, he initially was
diagnosed with pulmonary emphysema with mild diffuse fibrotic
lung changes. Complaining of pain, shortness of breath, and a
cough, Lapka was admitted to the Raritan Bay Medical Center on
February 21, 1981. In a report dated February 29, 1981, Dr.
Francis Urbanski, Essex Chemical's physician, concluded that
Lapka suffered from mild restrictive and moderate large airway
obstructive ventilatory impairment with severe small airway
obstruction. Urbanski also expressed reservations about Lapka's
return to work as a “hot melt operator.” Lapka was discharged on
March 1, 1981, with a final diagnosis of pulmonary fibrosis and
emphysema. That diagnosis was based in part on chest x-rays that
demonstrated “bilateral apical pleural thickening” and “increased
markings within the lungs.” Pulmonary fibrosis is a medical
condition involving inflammation and scarring of the lung tissue.
Among its known causes are occupational or environmental
exposure, vapors, certain drugs, radiation, and infection.
Asbestos exposure, although a possible cause of pulmonary
fibrosis, is hardly the exclusive cause. Exposure to other
chemicals or toxic substances may also cause or contribute to
that condition. Current Medical Diagnosis & Treatment 306-07
(Lawrence M. Tierney, Jr. et al. eds., 38th ed. 1999).
On June 29, 1981, Dr. Thaddeus Balinski, Lapka's personal
physician, completed an Attending Physician's Supplementary
Statement in connection with Lapka's claim for medical coverage
that listed his condition as “emphysema.” On July 7, 1981, the
Loss Prevention Manager at Essex Chemical discussed with Dr.
Balinski his concern about Lapka returning to his job. Dr.
Balinski concurred with Dr. Urbanski's recommendation that Lapka
not return to his previous job, but to a different job “in a less
toxic area.” On July 23, 1981, Dr. Urbanski completed a Return
to Work Evaluation that noted that Lapka had a “long history of
smoking at least one pack of cigarettes each day, but . . . he
stopped smoking on February 9, 1981.” Based on the results of
two evaluations and a pulmonary function test, Dr. Urbanski
concluded that the “clinical findings indicate that pulmonary
emphysema is not present but, rather, the studies illustrate
reverseability [sic] of the employee's ventilatory impairment and
demonstrates [sic] that, in the absence of any environmental
exposure, values have returned to normal.”
On a Medical-Work History form completed on May 23, 1982,
Lapka reported that he had emphysema and shortness of breath
after minimal exertion, but did not report any tightness or
constriction of the chest or lungs. A Professional Health
Services report dated June 16, 1983, contained pulmonary test
results that noted Lapka's “forced vital capacity is normal,
indicating no restrictive problem . . . but flow rates are
depressed, suggesting a possible early stage mild obstructive
deficiency.” Another Physical Examination and Evaluation report
on Lapka dated August 1, 1983, noted that he was “employable or
can continue to work in exposure to chemical or physical
stresses” and was “physically able to use personal protective
equipment, including respirator.”
On February 13, 1984, Lapka returned to Dr. Balinski for
treatment. Dr. Balinski diagnosed emphysema and COPD (chronic
obstructive pulmonary disease) on the Attending Physician's
Statement Health Insurance Claim used in connection with Lapka's
treatment. In June 1984, Lapka returned to the hospital.
Lapka's admitting and final diagnosis was COPD. That diagnosis
was based on a chest x-ray and pulmonary function tests that
“showed mild airway obstruction, with small airway disease.”
On June 6, 1985, Dr. Charles Brancato “strongly suggested”
that Lapka be put on permanent disability because pulmonary
function tests completed earlier in the year revealed a
“'moderate to severe airway obstruction', a marked worsening as
compared to the previous tests dated June 12, 1984.” Those
January 1985 tests were supervised by Dr. N. Reddy who
acknowledged in a letter dated January 29, 1985, to Essex
Chemical that Lapka had a history of COPD and was “not suited for
the work in which he is involved with [sic].” The chest x-ray
from those tests revealed a number of small calcifications in the
lungs that were deemed “compatible with previous granulomatous
disease.”
On January 14, 1986, Lapka filed a petition for workers'
compensation benefits. The claim form was neatly typed and
specific information surrounding Lapka's injury was provided as
follows:
Date of Accident or Dates of Occupational
Exposure:
1967 to June 5, 1984
Where:
Respondent's premises
How:
PETITIONER EXPOSED TO ASBESTOS, NOISE
AND CHEMICALS
Occupation:
Laborer-Operator
Date Stopped Work:
June 5, 1984
Date Returned to Work:
-----
Date Injury Reported to Employer and to Whom:
Respondent had constructive notice
In the next section of the claim form, “DESCRIBE EXTENT AND
CHARACTER OF INJURY,” the form noted that “PETITIONER SUSTAINED
PULMONARY, AND INTERNAL ORGAN DISABILITY; AS WELL AS BINAURAL
LOSS OF HEARING AND BILATERAL EYE DISABILITY.” The petition is
signed by Lapka and Paul Franz, an attorney at law.
On March 24, 1986, Lapka was examined by Dr. Malcolm Hermele
at the request of Franz and Mintz, Esqs. In his report to Franz
and Mintz dated the same day, Hermele noted in Lapka's Past
Medical History that Lapka had a “history of Emphysema and
Bronchitis.” Hermele described Lapka's work environment,
specifically referring to twelve different potential work-related
sources of his disability, including asbestos, but without
attempting to identify the more suspect of those sources:
Mr. Lapka was employed by Essex Chemical
Corp. from 1967 to May, 1984 as a chemical
operator. He was exposed to dust, fumes,
dirt, asbestos, carbon monoxide, chemicals
used in plastic products, petroleum products,
paints, powders, solvents, acetone and extremes
in temperature. He was required to do much
bending, lifting, standing and manipulation of
his hands and feet while on the job. In
addition to the physical stress and strain of
his job, he was under considerable emotional
stress and tension as he competed to get his
particular job accomplished.
[(emphasis added).]
Hermele noted the multiple breathing difficulties that Lapka
experienced and concluded that Lapka's “chest condition is
causally related to or exacerbated by the exposure to the above
pulmonary noxious agents while employed by Essex Chemical Corp.”
(Emphasis added). Hermele also concluded that “[b]ased upon the
history and the physical examination it is my opinion that
Kazimierz Lapka has emphysema, restrictive pulmonary disease and
small airways disease for which I would estimate a permanent
disability of 65" of total.”
On April 7, 1987, Lapka was awarded $23,800 based on a 33
and 1/3rd" permanent/partial pulmonary disability due to
emphysema, restrictive pulmonary disease and small airways
disease in an Order Approving Settlement by the Division of
Workers' Compensation. On August 10, 1992, Lapka was awarded an
additional $27,200 because his partial/total disability due to
chronic obstructive pulmonary disease with severe emphysema was
increased to 50%.
On August 23, 1988, Dr. Matthew H. Smith, at the request of
Jane Cantor, Esq., evaluated Lapka for occupational lung disease.
For the first time since Lapka's earliest medical examinations
relating to his pulmonary condition, Dr. Smith specifically
addressed Lapka's exposure to asbestos:
[F]rom the beginning of his employment
until 1976 [Lapka] mixed a liquid with
pigment and asbestos powder in the
manufacture of paneling glue. The
surrounding equipment and the air around
him was heavily laden with asbestos dust
and particulate matter, and the patient was
never offered a filter mask. He has no
other occupational exposures of which he is
aware.
With regard to the remainder of his
pulmonary symptoms, he was a one pack per
day smoker for 15 years quitting in 1952.
. . .
My impression is that Mr. Lapka does suffer
from asbestos related disease. This is
manifested by his progressive exertional
dyspnea, his history of exposure, and his
absence of cardiac or other causes.
On November 2, 1996, Lapka was again admitted to Raritan Bay
Medical Center. Lapka's chart noted that “according to patient &
his wife, this pt [patient] has H/O [history of] emphysema &
asbestosis & silicosis since '84.” Other chart notations
indicated that “[h]e has h/o COPD for >20 yrs, [with] asbestosis
silicosis diagnosed about 12 years ago” and that Lapka “smoked
IPPD for 40 yrs. Quit 7 yrs ago. Used to work in chemical plant
(?) for 17 yrs. stop in 1984 when was dx [diagnosed] as having
asbestosis/silicosis (?).” Lapka died on Novemeber 3, 1996.
II
A cause of action accrues when a plaintiff “learns, or
reasonably should learn, the existence of that state of facts
which may equate in law with a cause of action.” Burd v. New
Jersey Telephone Co.,
76 N.J. 284, 291 (1978) (internal emphasis
omitted). Where a plaintiff does not know or have reason to know
that he or she has a cause of action, the cause of action will
not accrue “until [plaintiff] discovers, or by an exercise of
reasonable diligence and intelligence should have discovered
[the] basis for an actionable claim.” Viviano v. CBS, Inc.,
101 N.J. 538, 546 (1986). See also Lopez, supra, 62 N.J. at 272-73.
“In order to start the statute of limitations [in a complex
medical malpractice case], more is required than mere speculation
or an uninformed guess 'without some reasonable medical support'
that there was a causal connection.” Mancuso v. Neckles, __
N.J. __, slip op. at 10 (2000) (quoting Vispisiano, supra, 107
N.J. at 437). The discovery rule avoids inequitable results that
would flow from a mechanical application of the relevant statute
of limitations. O'Keeffe v. Snyder,
83 N.J. 478, 491 (1980);
Fernandi v. Strully,
35 N.J. 434, 449-50 (1961).
The pertinent statute of limitations required the complaint
to be filed within two years after the cause of action accrued.
N.J.S.A. 2A:14-2. “[T]he purpose of statutes of limitations is
to stimulate litigants to pursue their causes of action
diligently.” Vispisiano, supra, 107 N.J. at 426. Because of the
latent characteristics and difficulty in diagnosis associated
with a toxic-tort illness, we articulated in Vispisiano the
standard that would start the statute of limitations running for
a toxic-tort plaintiff:
[B]efore a toxic-tort-case plaintiff may be
deemed, in a "discovery rule" context, to
have the requisite state of knowledge that
would trigger the running of the statute of
limitations his impression of the nature of
the injury and of its cause must have some
reasonable medical support, [therefore,] we are
convinced that defendants were not entitled to
summary judgment. We hasten to add that we do
not insist on medical confirmation as such: a
physician's willingness to include chemical
poisoning in the differential diagnosis would
probably suffice, as would any other reasonably
reliable source of information.
[Id. at 437 (emphasis added).]
Similarly, this matter requires us to carefully examine the
record in search of evidence that Lapka knew or should have known
that his condition was causally related to asbestos and that that
knowledge was based on some reasonable medical support, mindful
of the fact that the burden of proof rests with the party
claiming the use of the discovery rule. Id. at 432; Lopez,
supra, 62 N.J. at 276.
III
Lapka did not receive a medical diagnosis that his injuries
were causally related to asbestos exposure until Dr. Smith stated
that fact in his letter of August 23, 1988. Although a medical
diagnosis is not required to confirm that Lapka knew or should
have known of his condition's cause, Vispisiano, supra, 107 N.J.
at 437, Lapka had received multiple medical diagnoses that
informed him that his injuries were a result of pulmonary
fibrosis or emphysema, not asbestosis. During Lapka's early
medical history, he received those different diagnoses as well as
medical advice that he could “continue to work in exposure to
chemical or physical stresses.” Even in 1985, Lapka's
“worsening” test results were deemed “compatible with previous
granulomatous disease.” No medical diagnoses ever mentioned
asbestos or asbestosis as a cause of Lapka's injuries. Because
Lapka was never informed that asbestos was the cause of his
injuries, Lapka was never given “the impression of the nature of
his injury” from any of the doctors that examined him.
Therefore, Lapka's knowledge concerning the accrual of a cause of
action cannot definitively be determined by the written
documentation in the record.
The earliest date that Lapka may have been put on notice
that his injuries were caused by asbestos was March 24, 1986, the
date of the report produced by Dr. Hermele in support of Lapka's
petition for workers' compensation benefits. However, even that
report's reference to “asbestos” as one of twelve noxious
substances to which Lapka was exposed at work falls far short of
the Vispisiano standard of “reasonable medical support.”
As did the Appellate Division, the Court places significant
emphasis on Lapka's workers' compensation petition in which Lapka
sought benefits based on his exposure to “asbestos, noise, and
chemicals.” Although the petition conceivably could be
considered as some evidence that Lapka may have suspected that
asbestos caused his injuries, a more reasonable inference is that
Lapka's attorney's insertion of asbestos as a possible cause of
Lapka's pulmonary condition was merely an uninformed
generalization included in the form to provide possible support
for the workers' compensation claim. We note that Dr. Hermele
was retained by Lapka's counsel to support Lapka's petition for
workers' compensation benefits and that the Order Approving
Settlement issued by the Division of Workers' Compensation
incorporated Hermele's diagnosis of “emphysema, restrictive
pulmonary disease and small airways disease.” In approving the
settlement, the Division of Workers' Compensation did not make a
finding that Lapka suffered from asbestosis.
A better rule for determining the date of accrual of
knowledge of a toxic-tort plaintiff who has filed a worker's
compensation claim was adopted by the Texas Supreme Court in
Childs v. Haussecker,
974 S.W.2d 31, 42-43 (Tex. 1998). Relying
on this Court's decision in Vispisiano, id. at 42, the Texas
Supreme Court observed:
[A]lthough several courts have adopted [the]
position that the filing of a worker's
compensation claim or lawsuit alleging that
the plaintiff has an occupational injury
begins the statute of limitations running as
a matter of law, we believe this rule, while
not without some appeal, does not necessarily
reflect accurately the plaintiff's knowledge
in every case. Rather than demonstrating what
a plaintiff actually knows or should have known,
an occupational injury claim or suit may be
filed by an overly cautious plaintiff merely
because of that layperson's unfounded suspicions
or belief that an injury is related to a
particular exposure. . . . This being the case,
a latent occupational disease cause of action
should not be deemed to accrue absent some
objective verification of a causal connection
between injury and toxic exposure. . . .
Accordingly, a diligent plaintiff's mere
suspicion or subjective belief that a causal
connection exists between his exposure and his
symptoms is, standing alone, insufficient to
establish accrual as a matter of law.
[Childs, 974 S.W.
2d at 42-43 (citations omitted).]
Although the Court does not adopt a per se rule that a workers'
compensation petition necessarily triggers the running of the
statute of limitations, the claim petition in the context of this
record does not support the Court's conclusion that Lapka knew
his occupational exposure to asbestos was the cause of his
injuries. The Court's conclusion simply is inconsistent with the
extensive evidence of Lapka's prior medical evaluations and
reports that conspicuously omit any reference whatsoever to
asbestos exposure as a cause of Lapka's pulmonary condition. Cf.
Ackler v. Raymark Indus. Inc.,
551 A.2d 291, 292 (Pa. Super. Ct.
1988) (petition alleged “in detail the nature of his illness as
asbestosis . . . the dates on which his injury occurred, the
location, the nature of his occupation, and what he was doing
that caused his asbestosis”); Price v. Johns-Manville Corp.,
485 A.2d 466, 467 (Pa. Super. Ct. 1984) (“Mr. Price argued that his
disability from asbestosis was total” on appeal to the Workmen's
Compensation Appeal Board); Meeker v. American Torque Rod of
Ohio, Inc.,
607 N.E.2d 874, 876 (Ct. App. Oh. 1992) (plaintiff
specifically listed the chemicals that caused his injuries).
Finally, Lapka's November 1996 hospital records do not
assist us in determining Lapka's state of knowledge. Lapka was
first specifically informed in 1988 that he suffered from an
asbestos related disease. After acquiring that knowledge, Lapka
and his wife may have assumed that his deteriorating physical
condition had been caused by asbestos, and told the attending
doctor as much hoping that that information might save Lapka's
life. Lapka died the day after he was admitted to the hospital
in 1996. Additionally, although the notations on Lapka's chart
that stated that patient had a history of emphysema, asbestosis,
and silicosis since 1984 and that he was diagnosed with
asbestosis and silicosis 12 years ago may accurately have
reflected what the petitioners told the attending physician, this
record demonstrates unequivocally that the petitioners'
recollection was inaccurate because no such diagnosis had ever
been made before 1988. Accordingly, the 1996 hospital records
provide little assistance in determining when Lapka knew or
reasonably should have known that asbestos was a cause of Lapka's
injuries.
IV
For the reasons stated, I would reverse the judgment of the Appellate Division and remand this matter to the Law Division to conduct a L