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[J-138A&B-2008] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

ELEANOR ABRAMS, EXECUTRIX OF THE ESTATE OF KENNETH ABRAMS,

: : : Appellant : : : v. : : : PNEUMO ABEX CORPORATION, : AMERICAN STANDARD, INC., A.W. : CHESTERTON, INC., BRAND : INSULATION, INC., BROWN BOVERI : CORPORATION, BURNHAM BOILER : CORPORATION, CERTAINTEED : CORPORATION, CLEAVERBROOKS : CO., CRANE CO., DEMMING DIVISION, : CRANE PACKING, CROUSE-HINDS, : CROWN CORK & SEAL COMPANY, : INC., DANA CORPORATION, DRESSER : INDUSTRIES, INC., DURABLA : MANUFACTURING CO., EASTERN : GUNNITE CO., INC., GEORGIA PACIFIC : CORPORATION, GOULDS PUMPS, INC., : GREENE TWEED & CO., INC., HAJOCA : PLUMBING CO., HALLIBURTON CO., : HONEYWELL, MCARDLE-DESCO : CORPORATION, MELRATH GASKETS, : INC., METROPOLITAN LIFE : INSURANCE CO., NOSROC : CORPORATION, PARS : MANUFACTURING CO., PECORA : CORPORATION, PFIZER, INC., : QUIGLEY CO., INC., RAILROAD : FRICTION PRODUCTS, THE READING :

No. 17 EAP 2008 Appeal from the Order of the Superior Court entered on December 17, 2007 at No. 1182 EDA 2005, affirming the Judgment entered on April 4, 2005 in the Court of Common Pleas, Philadelphia County, Civil Division at No. 3458 Feb. Term 2003

COMPANY, RILEY STOKER CORPORATION, ROCKBESTOS COMPANY, UNION CARBIDE CORPORATION, WALTER B. GALLAGHER CO., WEIL MCLAIN CO., WESTINGHOUSE ELECTRIC CORPORATION AND JOHN CRANE, INC., Appellees

: : : : : : : : : : ARGUED: October 20, 2008

MARILYN SHAW, EXECUTRIX OF THE ESTATE OF JOHN SHAW,

: : : Appellant : : : v. : : : A.W. CHESTERTON, INC., BRAND : INSULATION, INC., CERTAINTEED : CORPORATION, CLEAVERBROOKS : CO., CRANE CO., DEMMING DIVISION, : CRANE PACKING, CROWN CORK AND : SEAL COMPANY, INC., DANA : CORPORATION, DURABLA : MANUFACTURING CO., GEORGIA : PACIFIC CORPORATION, GOULDS : PUMPS, INC., GREENE TWEED & CO., : INC., MELRATH GASKETS, INC., : METROPOLITAN LIFE INSURANCE CO., : NOSROC CORPORATION, PARS : MANUFACTURING CO., PECORA : CORPORATION, RAPID AMERICAN : CORPORATION, RILEY STOKER : CORPORATION, UNION CARBIDE : CORPORATION, WALTER B. : GALLAGHER CO., WEIL MCLAIN CO., : VIACOM /WESTINGHOUSE ELECTRIC : CORP., ANCHOR PACKING CO., : COMBUSTION ENGINEERING, INC., :

No. 18 EAP 2008 Appeal from the Order of the Superior Court entered on December 17, 2007 at No. 1185 EDA 2005, affirming the Judgment entered on April 4, 2005 in the Court of Common Pleas, Philadelphia County, Civil Division at No. 3459 Feb. Term 2003

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CROUSE-HINDS, DURAMETALLIC CORP., GARLOCK, INC., GENERAL ELECTRIC CO., HAJOCA PLUMBING CO., INGERSOLL RAND, STUDEBAKERWORTHINGTON, INC., ZURN INDUSTRIES, JOHN CRANE, INC., Appellees

: : : : : : : : ARGUED: October 20, 2008

OPINION

MADAME JUSTICE TODD

DECIDED: October 21, 2009

This Court granted allowance of appeal in the instant consolidated personal injury cases to determine whether a prior recovery of damages for increased risk and fear of developing cancer due to asbestos exposure, awarded under the "one disease" rule, precludes a plaintiff from recovering, from a party he has not previously sued, damages for cancer that developed and was diagnosed after the separate disease rule, also referred to as the "two disease" rule, was adopted in Marinari v. Asbestos Corp., Ltd., 612 A.2d 1021 (Pa. Super. 1992) (en banc). For the reasons set forth below, we conclude 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. Accordingly, we reverse the order of the en banc panel of the Superior Court affirming the trial court's grant of the motion for summary judgment filed by Appellee John Crane, Inc. ("Crane"),1 and remand this matter for further proceedings. The relevant facts of this case are as follows: In April 1984, Kenneth Abrams was diagnosed with nonmalignant asbestos-related disease.2
1 2

John Shaw similarly was

Crane is the only appellee involved in the instant appeal. Nonmalignant asbestos-related disease results from exposure to asbestos. Pulmonary asbestosis/parenchymal asbestosis and pleural thickening are types of nonmalignant asbestos-related disease, and occur when the body reacts to the inhalation of asbestos (continued...) [J-138A&B-2008] - 3

diagnosed with nonmalignant asbestos-related disease in January 1985. Within two years of their respective diagnoses, both the Abrams and the Shaws filed complaints against various defendants seeking damages for increased risk and/or fear of cancer;3 Crane,

(...continued) fibers which become imbedded in the lungs or other tissue. Specifically, asbestosis is a pneumoconiosis, a condition characterized by the permanent deposition of substantial amounts of particulate matter in the lungs, caused by the inhalation of asbestos fiber dust. Cleveland v. Johns-Mansville Corp., 547 Pa. 402, 406 n.1, 690 A.2d 1146, 1148 n.1 (1997). Pleural thickening, which may occur independent of, or in connection with, asbestosis, and can be diagnosed by an x-ray, is the formation of calcified tissue on the pleura, the membranes surrounding the lungs. Simmons v. Pacor, Inc., 543 Pa. 664, 672, 674 A.2d 232, 236 (1996). Exposure to asbestos also may result in malignant diseases, such as lung cancer (pulmonary carcinoma) and mesothelioma, which is characterized by tumors arising from mesothelial cells in the chest, stomach, and heart. McCauley v. Owens-Corning Fiberglas Corp., 715 A.2d 1125, 1126 n.1 (Pa. Super. 1998). 3 As Judge Musmanno accurately noted in his dissent to the Superior Court's en banc opinion in this matter, the Abrams' 1986 complaint asserted a claim for only a fear of increased risk of cancer: 47. As a direct and approximate [sic] result of the aforesaid, and since plaintiff first learned of his injury, plaintiff has developed severe anxiety, hysteria or phobias, any or all of which has developed into a reasonable and traumatic fear of an increased risk of additional asbestos caused and/or related disease, including, but not limited to, cancer to plaintiff, resulting from exposure, directly and indirectly, to the asbestos products of the defendant. 48. As a direct and proximate result of the aforesaid, and since first learning of plaintiff's injury, wife-plaintiff has developed severe anxiety, hysteria or phobias, any or all of which has developed into a reasonable and traumatic fear of an increased risk of asbestos-caused and/or related disease, including, but not limited to, cancer to wife-plaintiff, resulting from exposure, directly and indirectly to the asbestos products of defendants, to plaintiff's work clothes and tools. (continued...) [J-138A&B-2008] - 4

however, was not named as a defendant in either case. Both lawsuits were settled in 1993, prior to trial. In December 2002, both Abrams and Shaw were diagnosed with lung cancer. In February 2003, the Abrams and the Shaws filed separate lawsuits against various companies, including Crane, alleging that the cause of their lung cancer was occupational exposure to asbestos-containing products manufactured by those companies. Subsequent to the filing of their complaints, Abrams and Shaw both passed away, and their widows, Eleanor Abrams and Marilyn Shaw (collectively, "Appellants"), were substituted as plaintiffs in their capacity as executrixes of their late husbands' estates. On February 11, 2005, Crane filed a motion for summary judgment in both cases, asserting that Appellants' claims were barred by the statute of limitations. Specifically, Crane alleged that Appellants had successfully sued several companies for asbestosrelated injuries in the mid-1980s; that those actions included claims for increased risk and fear of developing cancer; and that Crane should have been named as a defendant in (...continued) Exhibit A to Sur Reply of Crane to Appellants' Response to Motion for Summary Judgment, 2/28/05 (R.R. at 58a) (emphasis added). The Shaws' 1986 complaint, in contrast, contained claims for both fear of cancer and increased risk of cancer: 28. As a direct and proximate result of the aforesaid, husbandplaintiff was caused to contract diseases and injuries to his body parts, organs, tissues and bones, the full extent of which has not been determined, including but not limited to asbestosis, pleural thickening, chronic restrictive lung disease, and/or mesothelioma, and/or other diseases. In addition, there is the risk of mesothelioma and other cancers, some or all of which may be permanent and eventually fatal and severe anxiety possibly rising to a traumatic neurosis or cancerophobia or both due to knowledge that he is likely or could possibly contract cancer because of his exposure to asbestos at his work place. Exhibit B to Sur Reply of Crane to Appellants' Response to Motion for Summary Judgment, 2/28/05 (R.R. at 88a) (emphasis added).

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those actions because, at that time, plaintiffs were required to bring all claims for existing nonmalignant conditions and predictable malignant diseases, including cancer, within two years of the initial diagnosis of an asbestos-related disease. The trial court agreed, and granted Crane's motion for summary judgment in both cases. On June 9, 2006, in a published opinion authored by President Judge Emeritus McEwen, a three-judge panel of the Superior Court reversed the trial court's grant of summary judgment and remanded for further proceedings. Subsequently, however, Crane petitioned for and was granted reargument, and the Superior Court's June 9, 2006 opinion was withdrawn. On December 17, 2007, an en banc panel of the Superior Court, in a 5-4 decision, affirmed the trial court's grant of summary judgment in favor of Crane. In a majority opinion authored by Judge Bowes, the Superior Court determined that the "risk of cancer" claims advanced by Appellants in their actions in the 1980s "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 thus "pertained to the same malignant asbestosrelated disease for which Appellants now seek to recover damages." Abrams v. Pneumo Abex Corp., 939 A.2d 388, 394 (Pa. Super. 2007) (en banc). Judge Lally-Green, in a concurring statement joined by Judge Klein, emphasized the goals of judicial repose and finality, and noted that, at the time of Appellants' initial suits, the law required a plaintiff "to file suit, within the applicable statute of limitations, against all potential asbestos defendants upon being diagnosed with an asbestos-related disease." Id. at 395 (LallyGreen, J., concurring) (emphasis original). Judge Stevens authored a dissenting opinion, joined by President Judge Ford Elliott and Judges Musmanno and Panella, wherein he noted a distinction between damages based on a fear of increased risk of cancer, and damages based on an actual diagnosis of cancer. In a separate dissenting opinion, joined by President Judge Ford Elliott and Judges Stevens and Panella, Judge Musmanno opined that, pursuant to the Superior

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Court's decision in Marinari, supra, a plaintiff's "discovery of a nonmalignant, asbestos related lung pathology . . . does not trigger the statute of limitations with respect to an action for a later, separately diagnosed, disease of lung cancer." Id. at 397 (Musmanno, J., dissenting). Appellants petitioned for allowance of appeal, and, on June 10, 2008, this Court granted their petition to consider the issue stated above. The appeal was argued on October 20, 2008. Preliminarily, we note our well established standard of review of an order granting or denying a motion for summary judgment: We view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Our scope of review of a trial court's order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion. Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001) (citations omitted). In 1992, the law in Pennsylvania regarding recovery for injuries resulting from exposure to asbestos underwent a sea change. Prior to 1992, a plaintiff seeking damages based on his or her exposure to asbestos or asbestos-containing products was required to file a single cause of action for all present and future harm within two years4 of the initial
4

42 Pa.C.S.A.

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