Matter of Steinhardt v. JohnsManville Corp. (1981)

Our plain-English summary of Matter of Steinhardt v. JohnsManville Corp. (New York Court of Appeals, October 29, 1981).

Seven sets of plaintiffs sued Johns-Manville and other asbestos companies. Several sued as representatives of workers who had died. They said the workers' inhalation of asbestos caused injuries. Each case was filed more than four years after the worker's last employment-related exposure to asbestos. The trial-level courts had granted summary judgment to the defendants as time-barred, and the Appellate Division upheld that. The plaintiffs asked the Court of Appeals to run the limitations period from when the disease was or could have been discovered. The Court refused. It followed its earlier decisions in Schmidt, Schwartz and Thornton, which held that a claim accrues when the harmful substance enters the body. It said that changing the rule was a matter for the Legislature, and it affirmed. Judge Meyer concurred only because Thornton bound him. Judge Fuchsberg dissented. He said the injury, asbestosis or mesothelioma, may arise long after inhalation, so the date it began was a fact question for a trial.

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 Court of Appeals
• Decided: October 29, 1981
• Citation: 54 N.Y.2d 1008
• Stage: Appeal from summary judgment
• State: New York

Outcome. The Court of Appeals affirmed the Appellate Division orders, so the asbestos manufacturers and suppliers won and the plaintiffs' claims stayed barred by the statute of limitations.

What the court held. In New York, a claim for harm from inhaling a foreign substance such as asbestos accrues when the substance is inhaled, not when the disease is discovered. Adopting a discovery rule was left to the Legislature.

Issues decided: Statute of Limitations.

Why this case is relevant

In this decision, New York's highest court refused to start the limitations period for asbestos claims when the disease was or could have been discovered. It reaffirmed its earlier rule that a claim for harm from an inhaled substance accrues when the substance enters the body. It also said any wider discovery rule was for the Legislature, which had so far acted only for Agent Orange cases. One judge dissented, arguing that when the disease actually began was a fact question for trial.

Later courts cite it mainly as the statement of New York's exposure rule. The New York Court of Appeals relied on it in a 1995 asbestos case. The Florida Supreme Court and a New Jersey appeals court cited it when asking whether New York law barred a claim. The Michigan Supreme Court and the D.C. Circuit cited it as an example of the traditional view, in contrast to the discovery rule. The Seventh Circuit cited it for the point that the federal Constitution apparently does not require a discovery rule. The Second Circuit described the exposure rule as the law "at that time."

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• James McKee, Jr.; died

• Stanley Rosenberg

• Jerome Brenner

• Emanuel Cohen; died

• Vincent Failla; died

• Joseph Ferrarese

• Albert Weinberg; died

The defendants

• Johns-Manville Corporation
• Johns-Manville Sales Corporation
• Johns-Manville Products Corporation
• Fibreboard Paper Products Corp. · its asbestos trust
• GAF Corporation · its asbestos trust
• Eagle-Picher Industries, Inc. · its asbestos trust
• Owens-Corning Fiberglass Corporation · its asbestos trust
• Armstrong Cork Company
• Raybestos-Manhattan, Inc.
• Southern Asbestos Co.
• Colt Industries, Inc.

Later decisions citing this one

14 later decisions in our library cite this one:

• Consorti v. Owens Corning (New York Court of Appeals, 1995). The New York Court of Appeals answered the Second Circuit's certified question in the negative, so Frances Consorti had no loss of consortium claim against Owens-Corning, which prevailed on that question.
• Celotex Corp. v. Meehan (Florida Supreme Court, 1988). The Florida Supreme Court quashed all three Third District decisions: it held Meehan's New York-barred claim was revived by a new New York statute and could proceed, remanded Nance for a significant-relationships determination, and let Colon's Florida-based claim proceed.
• Larson v. Johns-Manville Sales Corp. (Michigan Supreme Court, 1986). The Michigan Supreme Court affirmed the dismissal of all four wrongful death suits to the extent they rested on asbestosis, because they were filed too late, but held that the Glazier and Revard cancer claims against the asbestos manufacturers could proceed.
• Weinberg v. Johns-Manville Sales Corp. (Maryland Court of Appeals, 1984). The Maryland Court of Appeals affirmed summary judgment for Johns-Manville, holding the New York judgment dismissing the earlier wrongful death suit barred the widow's Maryland wrongful death action.
• Kulzer v. Pittsburgh-Corning Corp. (U.S. Court of Appeals, Second Circuit, 1991). The Second Circuit reversed the judgment for the plaintiff against Owens-Corning Fiberglas and remanded with instructions to dismiss the complaint as time-barred, because the revival statute's exception applied.
• 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.
• Neubauer v. Owens-Corning Fiberglas Corp. (U.S. Court of Appeals, Seventh Circuit, 1982). The Seventh Circuit, on interlocutory appeal, rejected the district court's rule that the limitations period runs from last exposure, and also rejected the plaintiffs' discovery rule. It held that Wisconsin law starts the period when the disease becomes diagnosable, a rule that favors the manufacturer defendants, and remanded for further proceedings.
• Wilson v. Johns-Manville Sales Corp. (U.S. Court of Appeals, District of Columbia Circuit, 1982). The D.C. Circuit reversed the district court's summary judgment for Johns-Manville and the other asbestos defendants, which had dismissed Blannie Wilson's survival and wrongful death claims as time-barred, and remanded for further proceedings.
• Owens-Illinois v. Gianotti (Maryland Court of Special Appeals, 2002). The Court of Special Appeals affirmed the judgments for John Gianotti and his wife against Owens-Illinois, rejecting its challenges, and also rejected the Gianottis' cross-appeal over the reduction of their judgments for the Babcock & Wilcox default and settlement.
• Seckular v. Celotex (New Jersey Superior Court, Appellate Division, 1986). The Appellate Division reversed summary judgment for the defendants on limitations grounds and directed that plaintiffs' complaint be dismissed without prejudice, leaving the claim to be pursued in Florida alongside the pending Florida death action.
• Meehan v. Celotex Corp. (Florida District Court of Appeal, 3rd District, 1985). The en banc court (by a 4-4 tie) left the revised panel opinion standing, which reversed summary judgment for the defendants and remanded, and certified a question on the borrowing statute to the Florida Supreme Court.
• Penny v. United Fruit Co. (U.S. District Court, Eastern District of New York, 1994). The court dismissed the widow's asbestos claims against Cunard Steam, Elders, Royal Mail and Shaw Savill for lack of personal jurisdiction (and alternatively on forum non conveniens), and granted summary judgment to United Fruit, United Brands, Furness Withy Group and Furness Withy.
• American Home Prod. v. Liberty Mut. Ins. Co. (U.S. District Court, Southern District of New York, 1983). The court held that Liberty Mutual's policies are triggered by injury-in-fact during the policy period (neither exposure nor manifestation alone), so Liberty must defend American Home Products until it confines each claim, and it largely rejected both sides' summary judgment theories.
• In re Johns-Manville Corp. (U.S. Bankruptcy Court, Southern District of New York, 1984). The bankruptcy court granted Keene Corp.'s motion to appoint a legal representative for future asbestos claimants in the Manville reorganization, holding that those claimants are parties in interest, and set a later hearing on the representative's form and function.

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.

54 N.Y.2d 1008 (1981)

In the Matter of Jeanne Steinhardt, as Executrix of James McKee, Jr., Deceased, Appellant,

v.

Johns-Manville Corporation et al., Respondents.

Stanley Rosenberg et al., Appellants,

v.

Johns-Manville Sales Corporation et al., Respondents.

Jerome Brenner et al., Appellants,

v.

Johns-Manville Sales Corporation et al., Respondents.

Dorothy Cohen, as Administratrix of The Estate of Emanuel Cohen, Deceased, Appellant,

v.

Johns-Manville Products Corporation et al., Respondents.

Rose Failla, as Administratrix of The Estate of Vincent Failla, Deceased, Appellant,

v.

Johns-Manville Products Corporation et al., Respondents.

Joseph Ferrarese et al., Appellants,

v.

Johns-Manville Sales Corporation et al., Respondents.

Rose Weinberg, as Administratrix of The Estate of Albert Weinberg, Deceased, Appellant,

v.

Johns-Manville Products Corporation et al., Respondents.

Argued September 9, 1981.

Decided October 29, 1981.

Court of Appeals of the State of New York.

Frank S. Kedzielawa, Carl A. Green and James W. Kirkpatrick for appellant in the first above-entitled action. Norman J. Landau for appellants in the second through seventh above-entitled actions.

Lawrence T. D'Aloise and Daniel T. Roach for Johns-Manville Corporation and others, respondents.

Thomas F. Segalla for Fibreboard Paper Products Corp., respondent.

Alexander C. Cordes and Paul F. Jones for GAF Corporation and others, respondents.

Robert M. Kiebala for Eagle-Picher Industries, Inc., respondent.

Gordon D. Tresch for Owens-Corning Fiberglass Corporation, respondent.

Sheldon Hurwitz for Armstrong Cork Company, respondent.

Franklin N. Meyer for Raybestos-Manhattan, Inc., respondent.

Michael Majewski and Joseph D. Ahearn for Southern Asbestos Co. and another, respondents.

James J. Lysaght for Colt Industries, Inc., respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, and WACHTLER concur in memorandum; Judge MEYER

concurs on constraint of Thornton v Roosevelt Hosp. (47 N.Y.2d 780); Judge FUCHSBERG dissents and votes to reverse in an opinion.

*1010MEMORANDUM.

1010

The orders of the Appellate Division should be affirmed, with costs.

Plaintiffs in these actions, asserting injuries caused by the inhalation of asbestos particles, each commenced his action more than four years after their or their decedents' last employment-related exposure to asbestos. In Schmidt v Merchants Desp. Transp. Co. (270 N.Y. 287), where the plaintiff alleged that the inhalation of dust while in the defendant's employ caused him to contract the disease known as pneumoconiosis, this court held that the statutory period of limitations began to run when the plaintiff inhaled the foreign substance. This principle was later reaffirmed in Schwartz v Heyden Newport Chem. Corp. (12 N.Y.2d 212, cert den 374 US 808), involving a compound inserted into the plaintiffs' sinuses for the purpose of making them more perceptible in x-ray examination. Accordingly, if this rule is still controlling, each of the causes of action brought by plaintiffs is barred by the Statute of Limitations. Plaintiffs now urge, however, that the Statutes of Limitations applicable to their cases should not run from the date of the last exposure to the invading substance, but rather from the date on which the asbestos-related disease was or could have been discovered. We are unable to adopt this proposed standard, and we reaffirm the principle announced in Schmidt and followed in Schwartz. Only recently, in Thornton v Roosevelt Hosp. (47 N.Y.2d 780), where it was alleged that a thorium dioxide substance manufactured by the defendant and injected into the deceased plaintiff resulted in the onset of cancer, we held that "the cause of action accrued at the time of invasion of decedent's body, and not at the time" the condition became apparent. There, we noted that further extension of the limited discovery provision contained within the CPLR (214-a) was a matter best reserved for the Legislature, and [*1011] not for the courts.[*] We believe it to be inappropriate and injudicious to intrude into an area best suited for legislative scrutiny. We have considered plaintiffs' other contentions and find them to be without merit.

FUCHSBERG, J. (dissenting).

The orders appealed from in these cases should be reversed and the motions for summary judgment denied. Once again we are confronted with a determination that plaintiffs who, alleging tortious wrongdoing as a result of which they were injured, are held to have been barred by the Statute of Limitations before they learned or could have learned that they had sustained the injuries of which they complain.

Though to state this proposition would appear to be to refute it, the majority, under what it takes to be the restraint of three cases, Schmidt v Merchants Desp. Transp. Co. (270 N.Y. 287), Schwartz v Heyden Newport Chem. Corp. (12 N.Y.2d 212) and, most recently, Thornton v Roosevelt Hosp. (47 N.Y.2d 780), a decision in which I filed a dissent, in effect upholds it. In my view, the cases cited are too confusing and contradictory to support such a result. For example, in Schmidt, though the court held that dust which produced a disease of the lungs set off the running of the statute when it was ingested rather than when the injury came to the fore, the court, inexplicably, also proclaimed (at p 300) that "There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury" (emphasis added). Further, in the relatively short time which has elapsed since Thornton was decided, the Legislature already has issued policy pronouncements that cut across the legal philosophy they bespoke.[*] In such circumstances, [*1012] the vitality of Judge-made law depends in no small measure upon a readiness to have the judiciary, and not the Legislature, as Thornton and the majority memorandum in this case suggest, make its own corrections.

The underlying principle is hornbook law. As Dean Prosser put it, "the statute of limitations does not begin to run against a negligence action until some damage has occurred" (Prosser, Law of Torts [4th ed], p 144). Or, as was acknowledged with apparent reluctance in Schwartz, "Since, then, the recognized damages in negligence cases are pain and suffering, loss of earnings and, we suppose, damage to the structure of the body, it is questionable whether any cause of action exists before these things actually happen" (Schwartz, supra, at p 217).

In this court, contrary rulings have troubled its Judges, and, ultimately, have been repudiated by the court as a whole. So, in Schwartz, itself, a strong dissent by Chief Judge DESMOND and Judge (later Chief) Judge FULD left no room for misunderstanding when it warned that "it would be unreasonable and perhaps unconstitutional to hold that his time to sue expired before it was possible for him to learn of the wrong" (Schwartz, supra, at p 219). And, the clarion clear comment that "it is all but unthinkable that a person should be time-barred from prosecuting a cause of action before he ever had one", first made by Judge (later Chief Judge) BREITEL in dissent in Mendel v Pittsburgh Plate Glass Co. (25 N.Y.2d 340, 346), was later to be adopted by the whole court in Victorson v Bock Laundry Mach. Co. (37 N.Y.2d 395, 401).

Guided by these beacons, I now turn to the opposing positions on which summary judgment turned. The defendants' needs no elaboration; it is simply that the actions arose when each of the plaintiffs breathed the asbestos-laden air, that is, at the time of exposure. If this contention is credited, of course, the wrongful conduct and ensuing damages [*1013] for all practical purposes would have been simultaneous. But the plaintiffs do not agree; they insist that the scientific facts are at odds with this unified concept. Pointing to medical authority, they contend that, while the unwanted invasions of their lungs by environmental air which had been contaminated by asbestos dust are the wrongful acts to which they were subjected, the damages they sustained were in the form of diseases which did not come about until much later. From this exposition, the diseases, asbestosis and mesothalioma, the latter a cancer of the mesothelial cells which surround the organs of the chest cavity, are said to be consequential, as distinguished from immediate, in their temporal character (see, also, Urie v Thompson, 337 US 163, 170 ["consequences of the exposure are the product of a period of time rather than a point of time"]).

The plaintiffs go on to assert that the properties of particles of asbestos are such that their inhalation will not necessarily result in the contraction of the disease; that, unlike chemical compounds, the particles do not break down into reactive elements when lodged in the body; that those who are exposed may never sustain any injury at all; that, even if a cancerous tumor later forms, it will not have begun to do so at the time of exposure; that, before such an event will occur, the asbestos may lay dormant for years; and that the future time when it may develop is unpredictable.

In this apposition the Statute of Limitations question is not one presenting a choice, as the majority would have it, between the times of inhalations and the times of discovery of the subsequent disease. Were that so, absent a discovery rule, the defendants' motions would indeed have had to have been granted. But, since the issue of fact fleshed out by the motions instead left it a case of dates of inhalation versus dates when the damaging disease came into existence, the question was one for triers of fact.

It follows that the orders of the Appellate Division must be reversed and the cases remitted for trial on the merits. Order affirmed.

[*] As the dissent recognizes, the Legislature has acted but has so far gone no further than "Agent Orange" cases. [*] In amending CPLR 214, which details the various Statutes of Limitations, the Legislature, at its last regular session, included the following statements in its formal legislative findings: "It was never the intent of the legislature in imposing limitations, to foreclose the citizens of this state from prosecuting legitimate claims, provided such claims are diligently and expeditiously pursued. An exception to the general period of limitation rule is required when the pathological effect of an injury occurs without perceptible trauma, and the victim is blamelessly ignorant of the cause of the injury" (L 1981, ch 266).

True, in the compromising fashion of legislative bodies (see O'Malley v Macejka, 44 N.Y.2d 530, 533-534), these declarations were made applicable to "Agent Orange" cases alone. But, as with other social catalysts, what it accelerated was a return in this area to the mainstream of legal thought.

Sources

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