White v. Owens-Corning Fiberglas, Corp. , 447 Pa. Super. 5 ( 1995 )

TAMILIA, Judge,

concurring and dissenting.

I concur in the disposition by the majority of the appellees’ motion relating to appellants’ violation of the Rules of Appellate Procedure, Pa.R.A.P. 2154, requiring them to serve and file a designation of the parts of the record which they intended to reproduce and a brief statement of issues which he intended to review. The majority correctly states that the rules are “mandatory, not directing”, and it is within our discretion to dismiss an appeal when the Rules of Appellate Procedure are violated. However, the violations are minor and our review of the issues has not been impeded nor have the parties been prejudiced by the violations.

Proceeding in its analysis the majority correctly states principles by which we are bound in reviewing a motion for summary judgment (Majority Opinion, p. 16-17). Despite appellants’ contention, Judge Moss properly considered the motion for summary judgment because, due to the unusual nature of the reverse-bifurcated proceeding, damages are determined before liability and it is illogical and inappropriate, if that system is to function, to rule earlier on the liability issue raised by the motion for summary judgment due to the run on the statute of limitations. The complexity of the liability stage dictates a determination of the existence of damages before liability is considered as the most expeditious and least expensive means to try the case.

The facts disclosed by the trial court record indicate that following a reverse bifurcated trial and $250,000 jury verdict, Judge Moss requested that appellee depose Dr. Michael Grip-pi. In his deposition taken on August 29, 1994, Grippi stated appellant/husband was told of abnormalities on his chest x-ray two to three years prior to the visit with Dr. Grippi and that the abnormalities were the result of his asbestos exposure (N.T., 8/29/94, p. 11).

The majority, in reversing Judge Moss, relies on the rule in Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), which held that summary judgment cannot be granted based upon evidence which depends solely on oral testimony provided by depositions or affidavits. The rule is stated correctly but it is erroneously applied as the majority ignores evidence of record, aside from Dr. Grippi’s deposition. The majority incorrectly states that Judge Moss relied exclusively upon Dr. Grippi’s testimony to improperly decide a genuine issue of material fact.

The majority concludes that because appellants and appellee dispute when appellant husband became aware of his asbestos related pleural disease, a genuine issue of fact was created. Application of the discovery rule, as in this case, however, is not based upon subjective beliefs by a plaintiff as to when the disease was diagnosed but upon the time wherein a reasonable person exercising due diligence should have known he was suffering an injury from asbestos. Cochran v. GAF Corporation, et al., 542 Pa. 210, 666 A.2d 245 (1995); Ingenito v. AC & S, Inc., et al., 430 Pa.Super. 129, 633 A.2d 1172 (1993). In addition to testimony from Dr. Grippi, the trial court had available video depositions from Dr. Stanley B. Fiel which supported the testimony from Dr. Grippi and documented, through examination of medical records and taking of a medical history from appellant, his exposure to asbestos between 1946 and 1983, his use of cigarettes for 50 years at one or more packs per day, and his chronic shortness of breath for the last 8 to 10 years (Records, 12/9/93).

The testimony from Dr. Grippi was to the effect appellant had experienced shortness of breath from 8 to 10 years before being examined and that the shortness of breath and the exposure to asbestosis precipitated the referral by his treating physician to Dr. Gorham. This referral and examination, including x-rays, took place two to three years before the examination by Dr. Grippi in June of 1987 and more than two years before the complaint was filed in this case on December 5, 1988. During trial, defendants presented the testimony of Dr. Fiel, who testified that during his November 8, 1993 evaluation of Mr. White, Mr. White reported shortness of breath for the last 8 to 10 years. This condition, according to Dr. Fiel’s examination of x-rays and medical history, was asbestos-related and is consistent with the testimony concerning the 1987 evaluation by Dr. Grippi. Appellants’ doctor, in June of 1987, testified that the asbestos-related pulmonary findings ante-dated the abnormal radiographs of March, 1987, by quite some time, and within a reasonable degree of medical certainty Mr. White had asbestosis in November, 1986. Finally, in the testimony of appellant by video deposition and in court at the damage stage of the reverse-bifurcated proceeding, he acknowledged shortness of breath 8 to 10 years before the filing of the complaint.

In that testimony, appellant, in response to a question from counsel as to “how long has your breathing been interfering with the things that you like to do when in your retirement?” replied “About eight years.” In the video deposition presented at the liability stage of the reverse-bifurcated proceeding before Judge Moss, the following testimony was elicited from appellant:

Q: Did you tell him about your being short winded, the first doctor you went to?

A: I guess I did, yeah.

Q: Who was the doctor you went to before Doctor Grippi?

A: Doctor Gorham, William Gorham.

Q: Can you spell that for me?

A: William G-0-R-H-Á-M.

Q: Gorham, okay. And where was Doctor Gorham’s office?

A: Down at 8th Street, but I don’t know his number.

Q: Why were you seeing Doctor Gorham?

A: For pressure.

Q: For your blood pressure?

A: I got a pressure condition, yeah.

Q: Did you tell him about your being short winded?

A: Yeah.

Q: Did he give you an exam for that?

A: He took X rays.

Q: Did he tell you what the results of those X rays were?

A: No, he never told me. He asked me — he never told me anything.

(Deposition of Harvey Lee White, 11/24/93, pp. 74-75.) Later in the deposition, the following testimony was elicited:

Q: Do you remember Doctor Grippi discussing with you some X rays you had had two or three years before seeing him?

A: Yeah.

Q: Do you remember where you had those X rays?

A: Doctor Gorham had them in Temple Hospital years ago.

Q: Did anybody from Doctor Gorham’s staff or Doctor Gorham himself mention asbestos to you?

A: No.

Q: Did you discuss asbestos?

A: He asked me had I worked around it and I told him yeah. He didn’t say nothing to me about it.

Q: And you and Doctor Gorham discussed your shortness of breath; is that right?

A: Yeah; something like that, yeah. He didn’t — he asked me had I worked around asbestos and I told him yeah. That’s all he told me.

Q: That was after you told him you were short of breath?

A: Yeah.

Q: And then he gave you the X rays; is that right?

A: No. Doctor Gorham still got the X rays. I got X rays from Doctor Grippi.

Q: You didn’t understand me.

And then Doctor Gorham sent you to have X rays; right?

A: Yeah. He sent me to the hospital. The hospital got the X rays.

Q: Which hospital?

A: Pennsylvania, I guess. That’s where he was on staff. I don’t know if he’s still there or not.

Id. at 150-151 (emphasis added).

This testimony of plaintiff unequivocally establishes that he suffered from shortness of breath which resulted in his solicitation of medical evaluation and treatment, which included a medical history, eliciting information of his exposure to asbestos and resulting in x-rays of his lungs by Dr. Gorham. The condition persisted and two years later a further evaluation was conducted by Dr. Grippi. The evidence obtained from appellant’s own testimony clearly establishes the notice required by a party to alert him to the need to file a claim within two years under the discovery rule to avoid being barred from filing a claim under the statute of limitations.

The majority totally ignores appellant’s testimony establishing his shortness of breath and seeking treatment, with knowledge of many years of asbestos exposure, more than two years before he filed a complaint.

The majority incorrectly determines that in granting appellees’ summary judgment motion, Judge Moss relied exclusively upon Dr. Grippi’s testimony to improperly decide a genuine issue of material fact.

As shown above, it was not only Dr. Grippfs testimony which traced appellant’s medical history and the examination of appellant which established the asbestosis and its onset, it was also appellant’s independent non-hearsay testimony which established his shortness of breath and treatment of that condition by Dr. Gorham more than two years before Dr. Grippi’s evaluation.

It thus becomes apparent that the majority’s reliance on Nanty-Glo is inappropriate as it ignores the exception to Nanty-Glo that permits summary judgment when the plaintiff testifies in such a fashion as to admit the matter at issue thus eliminating the problem of credibility which would have required submission to a jury. As stated in Standard Pennsylvania Practice 2d, § 32:109, Exception for use of nonmovant’s admissions:

§ 32:109. Exception for use of nonmovant’s admissions

Although the Nanty-Glo rule precludes the court’s determination of the credibility of any party’s oral testimony or testimonial affidavit, even that of the opposing party, as the evidential basis for summarily entering judgment, it does not preclude reliance on an opposing party’s testimonial admissions. The court may grant the motion when the moving party supports a motion for summary judgment by using the opposing party’s admissions or the admissions of the opposing party’s own witnesses, even though they are testimonial, without considering the credibility of the testimony, for it is an “unconditional surrender” by the opposing party, to which he or she must be held. (Emphasis added.).

See Garcia v. Savage, 402 Pa.Super. 324, 586 A.2d 1375 (1991).

The majority’s statement Judge Moss relied entirely on Dr. Grippi’s statements is factually incorrect and belied by her Opinion in which she states:

Plaintiffs’ Complaint alleges Husband was diagnosed with asbestosis on or about 6/30/87, after chest x-rays taken during unrelated surgery revealed pleural abnormalities. In his deposition, however, Husband described an examination by a Dr. Gorham “two or three years” prior to his 1987 diagnosis. Husband testified he had complained of shortness of breath, Dr. Gorham inquired whether he had ever worked around asbestos and ordered a chest x-ray when the answer was affirmative. While Dr. Gorham never informed Husband about the x-ray diagnosis Husband never followed up or inquired about his x-ray results (Defendant’s Exhibit 3, pp. 81, 150-151, 162), a duty which the law places upon him. Murray v. Hamot Medical Center, 429 Pa.Super. 625, 634, 633 A.2d 196, 201 (1993).

(Slip Op., Moss, J., 1/13/95, pp. 1-2.) Later in the Opinion, the trial judge reaffirmed the evidence derived from appellant’s statement and concluded he had classic symptoms for which he had sought medical attention before he sought treatment from Dr. Grippi.

Immediately after Husband told Dr. Gorham he had shortness of breath and long-time asbestos exposure the doctor ordered investigatory chest x-rays. In a light most favorable to Plaintiffs this occurred in 1984 or 1985. Shortness of breath is a classic symptom of asbestos-related pleural disease, yet Husband did not bother to obtain his x-ray results or otherwise investigate what caused his breathing impairment until March, 1987, two or three years after the original x-rays were taken.

Id. at 4.

It is conclusive that Judge Moss properly found as a matter of law that applying due diligence, no material fact relating to the time when the asbestosis should have been discovered existed.

The test which has been applied pursuant to the discovery rule has been frequently stated and is now a fixture in the law. Ingenito v. AC & S Inc., supra; Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985). If there was any question that this rule was weakening or that it was expanding to become more subjective rather than objective in relation to when a claimant is required to take definitive action, it has been layed to rest by the most recent pronouncement of the Pennsylvania Supreme Court in Cochran, supra. There, the Supreme Court stated:

Reasonable diligence is just that, a reasonable effort to discover the cause of an injury under the facts and circumstance present in the case. Long ago we recognized that “[t]here are few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence.” Deemer v. Weaver, 324 Pa. 85, 90, 187 A. 215, 217 (1936) (quoting Madole v. Miller, 276 Pa. 131, 137, 119 A. 829, 831 (1923)). Reasonable diligence is an objective, rather than a subjective standard. Under this standard, the plaintiffs actions must be evaluated to determine whether he exhibited “those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others.” Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 292, 505 A.2d 973, 988 (1985) (quoting Petri v. Smith, 307 Pa.Super. 261, 271, 453 A.2d 342, 347 (1982)). See also Restatement (Second) of Torts § 283 comment b. Despite the objective nature of the reasonable diligence standard, “[i]t is sufficiently flexible, however, to take into account difference[s] between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question.” Burnside, 351 Pa.Super. at 292, 505 A.2d at 988 (quoting Petri, 307 Pa.Super. at 271-72, 453 A.2d at 347). Thus, this case law teaches that a plaintiff is not under an absolute duty to discover the cause of his illness. Instead, he must exercise only the level of diligence that a reasonable man would employ under the facts and circumstances presented in a particular case.

Id. at-, 666 A.2d at 249 quoting Baumgart v. Keene, 542 Pa. 194, 666 A.2d 238 (1995) (Opinion in Support of Reversal at ---, 666 A.2d at 243-244.)) Continuing, the Court stated:

Our case-law further enlightens us on what is reasonable under the facts of a particular case. It is well settled that the statute of limitations is not tolled by mistake or misunderstanding. Pocono Intern. Raceway [v. Pocono Produce,] 503 Pa. [80] at 84, 468 A.2d [468] 471 [(1983)]; Nesbitt v. Erie Coach Co., 416 Pa. 89, 93, 204 A.2d 473, 475 (1964). Also, a diligent investigation may require one to seek further medical examination as well as competent legal representation. Murray v. Hamot Medical Center, 429 Pa.Super. 625, 634-35, 633 A.2d 196, 201 (1993), appeal denied, 540 Pa. 632, 658 A.2d 796 (1994) (citing Souders v. Atlantic Richfield Co., 746 F.Supp. 570, 573 (E.D.Pa.1990) citing United States v. Kubrick, 444 U.S. 111, 123 [100 S.Ct. 352, 360, 62 L.Ed.2d 259] (1979)).

Cochran, supra at---, 666 A.2d at 249.

Appellants allege sufficient information was not available to make a determination after the first record of treatment and x-ray examinations in 1985-86, but it was only after the 1987 examinations that appellant-husband was aware his condition was asbestos-related. As in Cochran, in addition to long-time asbestos exposure, appellant had been a heavy user of cigarettes which also might have caused the shortness of breath which was the primary symptom leading to x-ray examination. It is clear from the record there were no more symptoms present at the later examination than at the earlier one and that in both cases the same questions were asked and the same examinations made. It is also evident that the condition, asbestosis, leading to this lawsuit was as obviously discoverable by the appellant in 1986 as it was in 1988 because its progression was static and present at the earlier time. The facts in this case are very similar to those in Cochran in that, in Cochran, decedent and his survivors chose to believe the cancer diagnosed two years earlier was caused by cigarettes whereas the subsequent examination and death were attributable to asbestos. As in Cochran, diligent pursual of the medical reports and x-rays with solicitation of medical assessment and legal advice as to their significance unquestionably would have disclosed the existence of asbestosis.

It therefore is unassailable that the issue of the legitimacy of a claim for liability for damages was a matter of law to be resolved by granting summary judgment as no factual dispute existed to be determined by the jury. I would affirm the Order granting summary judgment.