Howell v. Celotex Corp. (1990)

Our plain-English summary of Howell v. Celotex Corp. (U.S. Court of Appeals, Third Circuit, May 18, 1990).

Joseph Howell and his wife sued Celotex, Owens-Illinois, Pittsburgh-Corning, GAF, Keene and Owens-Corning in federal court in Pennsylvania over asbestos-related harm. Howell had pleural thickening, a scarring of the lung lining linked to asbestos. The defendants admitted he had it but disputed whether it was a compensable injury, and experts on each side disagreed. The trial judge let the jury decide whether Howell suffered an injury or disease from asbestos exposure, and the jury found no compensable injury. The Howells appealed, arguing that Pennsylvania law made pleural thickening an injury as a matter of law, so the jury should have been told only to assess damages. The Third Circuit predicted Pennsylvania law, since the state courts had not decided the point. It noted that Pennsylvania cases calling pleural thickening an injury dealt only with when the statute of limitations starts, not with liability. Because of the medical disagreement, it held the question was one of fact for the jury and affirmed the judgment for the defendants.

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: U.S. Court of Appeals, Third Circuit
• Decided: May 18, 1990
• Citation: 904 F.2d 3
• Docket: No. 89-1822
• Stage: Appeal from judgment after trial

Outcome. The Third Circuit affirmed the judgment entered on the jury's verdict for the asbestos defendants, holding that the district court properly let the jury decide whether Howell's pleural thickening was a compensable injury.

What the court held. Because medical experts disagreed about whether asbestos-related pleural thickening is an injury, it is not a compensable injury as a matter of law under predicted Pennsylvania law and is a question of fact for the jury. Treating pleural thickening as an injury for limitations purposes does not require treating it as one for liability.

Issues decided: Fear of Cancer and Medical Monitoring, Statute of Limitations, Trial Procedure and Discovery.

The people and their exposure

• Joseph D. Howell: pleural plaques and thickening

The defendants

• Celotex Corporation (manufacturer) · its asbestos trust
• Owens-Illinois, Inc. (manufacturer) · its asbestos trust
• Pittsburgh-Corning Corporation (manufacturer) · its asbestos trust
• GAF Corporation (manufacturer) · its asbestos trust
• Keene Corporation (manufacturer)
• Owens-Corning Fiberglas Corporation (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Doe v. Johns-Manville Corp. (Pennsylvania Supreme Court, 1984). The Pennsylvania Superior Court affirmed the trial court's order sustaining the defendants' preliminary objections to the Does' petition for a declaratory judgment on when the limitations period begins in asbestos disease cases.

Later decisions citing this one

6 later decisions in our library cite this one:

• Pustejovsky v. Rapid-American Corp. (Texas Supreme Court, 2000). The Texas Supreme Court reversed the court of appeals' affirmance of summary judgment for Rapid-American on limitations grounds and remanded to the trial court, so Pustejovsky's mesothelioma suit may proceed.
• Simmons v. Pacor, Inc. (Pennsylvania Supreme Court, 1996). The Pennsylvania Supreme Court affirmed the Superior Court, which had upheld judgment n.o.v. for the defendants in Giffear and reversed the plaintiffs' verdicts in Simmons and Murray, so Owens-Illinois, Fibreboard and Keene prevailed over the three plaintiff couples.
• Miller v. Armstrong World Industries (Colorado Supreme Court, 1991). The Colorado Supreme Court answered the Tenth Circuit's certified question no: discovering pleural thickening and calcification did not start the limitations period on a later asbestosis claim, which favored plaintiff Miller over the defendant manufacturers.
• Giffear v. Johns-Manville Corp. (Pennsylvania Superior Court, 1993). The Superior Court affirmed the trial court's judgment n.o.v. for Keene and Fibreboard, setting aside the jury's $300,000 award to William Giffear, because asymptomatic pleural thickening and fear or risk of cancer are not compensable injuries.
• Marinari v. Asbestos Corp., Ltd. (Pennsylvania Superior Court, 1992). The en banc Superior Court reversed summary judgment for the defendants, holding that Marinari's lung cancer action was not time-barred by the earlier discovery of pleural thickening.
• Manzi v. HK Porter Co. (Pennsylvania Superior Court, 1991). The Superior Court affirmed the judgment for defendant H.K. Porter against plaintiff James Manzi, holding the jury instruction that Manzi could sue again if he later developed a compensable asbestos injury was correct (Celotex was severed due to bankruptcy stay); one judge dissented.

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.

904 F.2d 3 (1990)

Joseph D. HOWELL and Ingeborg Howell, his wife, Appellants,

v.

The CELOTEX CORPORATION, Eagle Picher Industries, Inc., Keene Corporation, Owens Illinois,

Inc., GAF Corporation, Fibreboard Corporation, Owens Corning Fiberglas, Garlock, Inc., Raymark

Industries, Inc.

No. 89-1822.

Submitted April 5, 1990.

Decided May 18, 1990.

Rehearing and Rehearing Denied June 21, 1990.

United States Court of Appeals, Third Circuit.

Daniel G. Childs, Johnson & Childs, Philadelphia, Pa., for appellants.

Carol L. Widemon, McCarter & English, Cherry Hill, N.J., for appellees, Owens Illinois, Inc. and Fibreboard Corp. John DiSantis, Walter S. Jenkins, Sweeney, Sheehan & Spencer, Philadelphia, Pa., for appellee, Owens Corning Fiberglas Corp.

Bruce H. Bikin, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for appellee, Celotex Corp. Robert B. Lawler, Wilbraham & Coleman, Philadelphia, Pa., for appellees, GAF Corp. and Keene Corp.

Before HIGGINBOTHAM, Chief Judge, and COWEN and NYGAARD, Circuit Judges.

Submitted Under Third Circuit Rule 12(6) April 5, 1990.

Rehearing and Rehearing In Banc Denied June 21, 1990.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

The issue in this diversity action is whether appellant's pleural thickening amounts to a compensable injury under Pennsylvania law, entitling him to a jury charge mandating liability. The district court refused to decide the question as a matter of law and submitted the issue to the jury which rendered a verdict against appellant. Judgment was entered by the district court on September 7, 1989 in favor of appellees. We will affirm.

[*4] I.

In October, 1986, Joseph Howell filed an asbestos-related personal injury action against defendants Celotex Corporation ("Celotex"), Owens-Illinois, Inc. ("Owens-Illinois"), Pittsburgh-Corning Corporation ("Pittsburgh-Corning"), GAF Corporation ("GAF"), Keene Corporation ("Keene"), and Owens-Corning Fiberglas Corporation ("Owens-Corning"). This action proceeded to trial on the issues of medical causation and damages. At trial, appellees conceded appellant's asbestos-related pleural thickening, but contested its status as a compensable injury. Both sides produced experts who provided conflicting evidence on the "injurious" aspects of pleural thickening. The district court noted the appellees' concession that plaintiff had pleural thickening, but stated that the jury should determine whether pleural thickening was a compensable injury. Appellant objected, maintaining that pleural thickening constituted an injury and the jury need only assess damages. The district court charged the jury as follows:

So, the first question you have to ask is: Has plaintiff, Joseph Howell, proved by a preponderance of the evidence that he is suffering from a disease or injury as a result of being exposed to asbestos?....[I]t is my understanding that there was a general agreement he suffered a pleural thickening as a result of his

asbestos exposure.

Now, I heard one counsel say to you, and I don't recall specifically one way or the other, that all the doctors agreed that there was an impairment as a result of that pleural thickening. If that is your recollection, then I so instruct you that an impairment is an injury.... I recall one physician saying that he didn't classify pleural thickening as a disease or a disease-related injury. But that is up to you to decide. Consider all the evidence.... So, the issue is whether or not from all the evidence you have heard, has the plaintiff, as a result of his exposure to asbestos, is he suffering from an injury or a disease? You answer that yes or no. If you answer that no, that's the end of the case ...

Plaintiffs renewed their arguments following the jury charge, maintaining that asbestos-related pleural thickening constituted an "injury" under Pennsylvania law. After the jury found no compensable injury and the district court entered judgment on May 8, 1989, plaintiffs moved for a new trial and judgment N.O.V. Both motions were denied on September 7, 1989 and this appeal followed.

II.

Plaintiffs raise one issue on appeal: whether asbestos-related pleural thickening constitutes a compensable injury under Pennsylvania law, entitling plaintiffs to a jury charge mandating liability. Our scope of review is plenary. See, e.g., Carter v. Rafferty, 826 F.2d 1299 (3d Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 711, 98 L.Ed.2d 661 (1988). In diversity cases we apply the substantive law of the state in which the district court sat. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Where that law has not been settled by the highest court of the state, we must predict the possible outcome of that court. Commission v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967). Here, no party disputes that Pennsylvania law should supply the applicable rule. Unfortunately, the issue has not been decided by the Pennsylvania state courts, so we must make a prediction.

III.

Asbestos-related pleural thickening is defined as a scar tissue "condition" forming on the lungs as a result of asbestos contact. Doe v. Johns-Manville, 324 Pa. Super. 469, 471 A.2d 1252, 1253 (1984). Although pleural thickening itself causes no physical damage, its presence signifies the possibility of other latent asbestos-related injury. Id. In Doe v. Johns-Manville, plaintiff petitioned the court for a declaratory judgment, stating that the statute of limitations in asbestos-related injuries did not begin to run "until the injured [*5] person became disabled." 471 A.2d at 1255. The court indicated that it would apply the prevailing "discovery rule" which starts the limitation period when the plaintiff knows that "a possible tort [has] inflict[ed] a damage which is physically objective and ascertainable." Id. at 1254, quoting Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959). Noting that pleural thickening satisfied the Ayers definition, the court stated that Doe must have known of the "injury" and its causal connection to defendant's conduct for the statute of limitations to begin. Id.; Cowgill v. Raymark Industries, Inc., 832 F.2d 798, 802 (3d Cir.1987) ("We also affirmed the district court's legal conclusion that Mrs. Cowgill's cause of action was barred if her husband knew or should have known of that injury [pleural thickening] more than two years prior to suit."). Thus, the court referred to pleural thickening as an "injury" for the purpose of determining when a cause of action is to be limited by law.

Plaintiffs insist that the judicial classification of asbestos-related pleural thickening as an "injury" for statute of limitations purposes requires that a jury regard pleural thickening as an injury for liability purposes. See 471 A.2d at 1254-56. We disagree. In statute of limitations cases, pleural thickening is considered an injury because it indicates a condition used to start the limitation period. Thus, upon diagnosis of pleural thickening, a plaintiff is "on notice" that he has two years to file suit. If the plaintiff is likely to develop an injury aside from pleural thickening, he may receive an instruction on and recover damages for his "increased risk of harm." Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). For liability purposes, however, the Pennsylvania courts have not ruled that pleural thickening is a compensable injury. Doe and Cowgill address only the statute of limitation problem, not the liability question. In the face of this medical disagreement, we conclude that the presence of pleural thickening may not, alone, mandate a jury finding of compensable injury for an

otherwise healthy plaintiff. We conclude that the substantial medical disagreement over the classification of pleural thickening prevents us from declaring it to be an injury as a matter of law. This question is factual and remains within the province of the trier of fact.

For the foregoing reasons, we will affirm.

Sources

• The opinion on Google Scholar