Campo v. Asbestospray Corp. (1988)

Our plain-English summary of Campo v. Asbestospray Corp. (New York Supreme Court, March 28, 1988).

Salvatore Campo and two other named plaintiffs sued Asbestospray Corporation and other asbestos companies on behalf of a proposed class. The class members said they had minor injuries from asbestos exposure. They had not sued before July 30, 1987, when New York's one-year window for reviving otherwise time-barred asbestos claims closed. They said they knew of their injuries but chose not to sue, or could not find lawyers. They wanted to give up claims for their present conditions and keep the right to sue if a serious disease developed later. The defendants moved to dismiss, and the plaintiffs moved to certify the class. The court granted the motions to dismiss. It followed a DES case that refused to extend the legislature's one-year revival period by court action and held that a class action without present injury claims does not toll that period. The court also declined to adopt a 'two-injury' rule, which other jurisdictions recognize, because New York had not adopted it and adopting it would extend the discovery-based limitations statute, CPLR 214-c. Class certification was denied as moot.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court
• Decided: March 28, 1988
• Citation: 139 Misc. 2d 353
• Stage: Motion to dismiss
• State: New York

Outcome. The court granted the asbestos defendants' motions to dismiss the class action complaint, including derivative claims, and denied the plaintiffs' motion for class certification as moot.

What the court held. The court would not judicially extend the legislature's one-year revival period for time-barred asbestos claims, and a class action brought without present claims for injury does not toll that period. New York had not adopted a 'two-injury' rule, and adopting one would be a judicial extension of CPLR 214-c.

Issues decided: Statute of Limitations, Trial Procedure and Discovery.

The people and their exposure

• Salvatore J. Campo

The defendants

• Asbestospray Corporation
• Turner & Newall, PLC. (manufacturer)
• National Gypsum Company (manufacturer) · its asbestos trust
• the Celotex Corporation (manufacturer) · its asbestos trust
• Keene Corporation (manufacturer)
• GAF Corporation (manufacturer) · its asbestos trust
• A.P. Green Refractories Co. (manufacturer) · its asbestos trust
• Owens-Corning Fiberglass Corporation (manufacturer) · its asbestos trust
• Owens-Illinois, Inc. (manufacturer) · its asbestos trust
• Eagle-Picher Industries, Inc. (manufacturer) · its asbestos trust
• Acands, Inc. (manufacturer) · its asbestos trust
• Pittsburgh Corning Corporation (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Jackson v. Johns-Manville Sales Corp. (U.S. Court of Appeals, Fifth Circuit, 1984). The Fifth Circuit affirmed that Jackson could sue Johns-Manville and Raybestos-Manhattan in strict liability and affirmed the handling of settlement credits. It reversed on admitting cancer-risk evidence, the Sumner Simpson letters and the punitive damages awards, and remanded for a new trial.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

139 Misc.2d 353 (1988)

Salvatore J. Campo et al., on Behalf of Themselves and All Other Persons Similarly Situated,

Plaintiffs,

v.

Asbestospray Corporation et al., Defendants.

March 28, 1988

Supreme Court, New York County.

Reingold & McGowan for plaintiffs. Anderson, Russell, Kill & Olnik for Turner & Newall, PLC., and others (Asbestos Claims Facility), defendants. Eugene H. Lieber, Barry McTiernan, Herzfeld & Rubin, Kaplan & Oshman, Lawford & Caufeld, Heidell, Pittoni, Murphy & Bach, Budd, Larner, Gross & Piccillo, Amhuty, Demers & McManus, Morgan & Melhuish and Wilson, Eisner Edelman & Dicker for Asbestospray Corporation and others, defendants.

HELEN E. FREEDMAN, J.

Plaintiff moves for an order pursuant to CPLR 902 certifying [*354] the above matter as a class action. Defendants Turner & Newall, PLC., National Gypsum Company, the Celotex Corporation, Keene Corporation, GAF Corporation, A.P. Green Refractories Co., Owens-Corning Fiberglass Corporation, Owens-Illinois, Inc., Eagle-Picher Industries, Inc., Acands, Inc., and Pittsburgh Corning Corporation (all members of the Asbestos Claims Facility) move and the remaining defendants cross-move to dismiss this class action complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7). The motion to certify the matter as a class action was stayed pending resolution of defendants' motions to dismiss. This action was commenced on behalf of a class of persons who alleged that they sustained minor injuries due to exposure to asbestos but who, with the exception of the three named plaintiffs, did not bring actions before the expiration of the one-year period for revival of otherwise time-barred claims (L 1986, ch 682, § 4). Such claims would be time barred if brought individually. The members of the class were aware of their injuries, according to the complaint, and either chose not to institute suit prior to the end of the revival period (July 30, 1987) for what they regard as minor injuries or were unable to retain counsel due to the size of their claims.

The purpose of the action is to preserve the Statute of Limitations for those persons exposed to absestos should they develop future serious injuries. Although the proposed class members had a right to initiate suit for existing injuries, they have chosen not to do so. Rather, they seek to "waive any claim for the conditions of which they are presently aware and make claims for conditions which may one day arise should it be determined that they have sustained an injury which in their opinion is a serious one". While the complaint alleges that the members of the proposed class discovered their injuries prior to July 1, 1986 and may therefore not rely on the new discovery based Statute of Limitations, it is noted that the three named plaintiffs indicate that their injuries were discovered in late 1986 and in 1987 and therefore may be eligible to bring actions pursuant to CPLR 214-c.

The very same issue has been addressed with respect to DES, another of the toxic substances specified in the revival statute. (Soberman v Lilly & Co., NYLJ, Mar. 22, 1988, at 13, col 1 [Sup Ct, NY County, Gammerman, J.].) In a well-reasoned decision the court found that: "Although the legislative scheme may work an injustice under these circumstances it would be improper to judicially extend the one year period set [*355] by the legislature. If there is to be an extension, it must be created by statute. The apparent timely commencement of the purported class action may not serve to toll the one year revival period for individual members of the class in the absence of present claims and injuries for which recovery is sought (see American Pipe & Constr. Co. v. Utah, 414 US 538; Yollin v. Holland America Cruises, Inc., 97 A.D.2d 720)." (Supra, at 13, col 2.)

Plaintiffs suggest, alternatively, that New York adopt a "two-injury rule", which would allow a plaintiff to forego a suit for trivial injury now and preserve the right to sue if a more serious injury develops in the future. Under this theory a plaintiff with asbestosis could forego a claim for asbestosis and then bring suit when a mesothelioma develops. Although this enlightened concept has been recognized in other jurisdictions (see, Jackson v Johns-Manville Sales Corp., 727 F.2d 506 [5h Cir 1984]; Blakey v Superior Ct., 153 Cal App 3d 101, 200 Cal Rptr 52 [1984]; Wilson v Johns-Manville Sales Corp., 684

F.2d 111 [DC Cir 1982]), New York has not yet adopted it. In addition, the argument is premature, since the adoption of a "two-injury" rule would be a judicial extension of CPLR 214-c, the discovery based Statute of Limitations. Accordingly, the motion and cross motions to dismiss the complaint, including all derivative claims, are granted, and the motion for class certification is denied as moot.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites