Bertoline v. Abex Corp.

BECK, J.:

This is an appeal from an order entered in 30 consolidated asbestos cases. The sole issue presented is whether Simmons v. Pacor, 543 Pa. 664, 674 A.2d 232 (1996), in which the Supreme Court confirmed that the emotional distress suffered by asymptomatic plaintiffs who fear they will develop asbestos related cancer is not a recoverable element of damages, is applicable to the cases on appeal.

Appellees initially filed suit for asbestos related injuries at various times in the period from mid-1985 to mid-1987. None of the appellees sought recovery for cancer. As is customary, the trials of appellees’ actions were consolidated into several groups and reverse bifurcated. Phase I trials on medical causation and damages were conducted in 1992 and 1993. In every case, the jury was instructed that damages for fear of future contraction of asbestos-related cancer could be recovered. Appellees prevailed and received awards of damages.

Defendants-appellants moved for new Phase I trials, arguing that this Court’s opinions in Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), and Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993), affd sub. nom. Simmons v. Pacor, supra, had definitively eliminated recovery for fear of cancer in non-cancer asbestos personal injury actions. In orders entered in 1993 and 1994 the three trial court judges presiding over the trials of appellees’ cases granted new Phase I trials in which the jury would be instructed that fear of cancer is not a recoverable element of damages.

Appellees immediately appealed from the trial courts’ orders granting new Phase I trials. This Court quashed appellees’ appeals in a series of orders entered in 1994 and 1995. Shortly thereafter, on April 4, 1996, the Supreme Court issued its opinion in Simmons wherein the Court affirmed the Superior Court’s opinion (issued under the name Giffear v. Johns-Manville Corporation ), and held that feár of cancer was not recoverable in a non-cancer asbestos personal injury case.

The trial court then initiated the process of scheduling new Phase I trials in compliance with the previous new trial orders of the trial court. Before the new trials were scheduled, however, the Supreme Court issued its opinion in Cleveland v. Johns-Manville Corp., 547 Pa. 402, 690 A.2d 1146 (1997). In Cleveland, the Court addressed whether Simmons should be applied retrospectively or prospectively and held that Simmons should apply prospectively. Appellees construed Cleveland to mean that Simmons would not apply to cases in the procedural posture in which appellees’ eases then stood and requested that the trial court reinstate appellees’ previous verdicts in the Phase I trials, thereby permitting appellees to recover for fear of cancer. Appellants countered by arguing that Cleveland should not be applied to reinstate jury verdicts after the trial court judges had already ordered new trials.

The Honorable Victor J. DiNubile, acting in his capacity as Calendar Judge of the Complex Litigation Center, then entered the following order, from which this appeal is taken:

AND NOW, this 16th day of May, 1997, the motion pertaining to the scheduling of trials in the above-captioned cases is hereby GRANTED insofar as these trials are to proceed on liability issues only.

This Court declines to schedule the trial of these eases on damages at this time, in light of their procedural history.

In the trial court opinion in support of this order, Judge DiNubile explained that although he did not believe it would be appropriate for him to grant appellees’ request, he also did not want to confirm the new Phase I trial orders because of the possible effect of Cleveland. Judge DiNubile decided that the better course would be for the Phase II liability trials to go forward and for any defendant who lost in that phase to appeal to this Court for a resolution of the issue regarding the meaning of Cleveland and the applicability of Simmons in the context of these cases.

Appellants filed a Petition for Review, which this Court granted on August 14,1997. On May 27, 1998, appellees filed a Motion to Dismiss these appeals, arguing that the opinion filed on May 11, 1998 by a panel of this Court in McCauley v. Owens-Corning Fiberglas Corp., 715 A2d 1125 (Pa.Super.1998), commanded a result in appellees’ favor. On July 7,1998, this Court denied the Motion to Dismiss without prejudice to appellees’ right to renew the motion before the merits panel, which appellees have done.

In reviewing the order on appeal we are presented with a single question. Did the trial court err, as a matter of law, in determining that appellees could proceed with the Phase II liability trials despite the prior trial court rulings granting new damages trials? We find that the trial did not err, and remand for Phase II liability trials.

In Cleveland v. Johns-Manville Corp., supra, the Supreme Court defined the applicability of Simmons to cases pending on April 4, 1996, the date of the Simmons decision. In Cleveland,- the trial court proceedings were complete, the plaintiff had secured a verdict that included damages for fear and risk of cancer, and the case was pending on appeal before the Supreme Court when Simmons was decided. The defendant argued that under Simmons, it was entitled to a new trial in which the jury would be instructed that no recovery for fear or risk of cancer was allowed. The Cleveland Court refused to send the case back for a new trial, stating:

In Simmons, a case of first impression for our Court, we addressed the issue of whether increased risk of cancer and fear of cancer were compensable in an asbestos action where cancer has not yet developed. We held that a plaintiff asserting a non-cancer, asbestos-related claim could not recover for any part of the damages relating to cancer. This holding abolishes claims for increased risk and fear of cancer where cancer is not present, thus eliminating the recovery of damages based on a speculative future event, the possible occurrence of cancer.

Although we applied our holding to the parties before us in Simmons, we did not address whether our holding should be given retroactive effect.

We decline to hold, however, that Simmons should apply retroactively, .... Normally, we apply a new decision to cases pending on appeal at the time of the decision. However, a sweeping rule of retroactive application is not justified. Retroactive application is a matter of judicial discretion and must be exercised on a ease by ease basis.

.. .our courts have labored under a backlog of asbestos cases for many years. Requiring new trials in each of the cases on appeal handled pursuant to the pre-Sim-mons rule would only exacerbate this congestion. Furthermore, we are unwilling to force sick and aging plaintiffs, who waited many years for their awards, back into court to relitigate their claims....

Accordingly, we hold that Simmons is to be given only prospective effect. To the extent that the Superior Court has applied our decision in Simmons or its own decisions in Murray [v. Philadelphia Asbestos Corp., 433 Pa.Super. 206, 640 A.2d 446 (1994)7 and Giffear retroactively in other cases, those cases are overruled.

Id. at 410-14, 690 A.2d at 1150-52 (citations omitted).

As the foregoing language clearly indicates, the Cleveland Court held that Simmons is to be given prospective application. In doing so, the Court sought to alleviate the burden of hundreds of asbestos cases pending in the trial courts and to ensure that claims that had already been litigated would stay litigated. Under the clear language of the Cleveland opinion, and especially in consideration of the goals the Cleveland Court sought to further, we are compelled to conclude that appellants in the instant appeals may not now relitigate their damages phase trials under post-Simmons principles. Despite the fact that new damages trials were granted by the trial court judges previously presiding over these cases, the result we reach' is mandated by the Supreme Court’s most recent statement on the issue.

We find further support for .this conclusion in McCauley v. Owens-Coming Fiberglas Corp., 715 A.2d 1125 (Pa.Super.1998),¹ in which a panel of this Court has very recently construed Cleveland to mean that Simmons is inapplicable to any case commenced prior to the date of the Simmons decision.² In McCauley, plaintiff instituted suit in 1993 for personal injuries arising from asbestos exposure. Plaintiff had been informed in 1985 that he had pleural thickening, but he was not symptomatic at that time. However, the evidence also indicated that in 1991 plaintiff suffered from shortness of breath and had asbestosis. After a damages trial the trial court entered a nonsuit, finding that plaintiff’s action was untimely. On appeal, a panel of this Court held that the trial court was correct in entering a nonsuit as to plaintiffs pleural thickening claims, but erred in entering a nonsuit as to any cause of action that might arise from the symptomatic asbestos disease that plaintiff later developed. Id., 715 A.2d at 1131.

In the course of analyzing the statute of limitations issue, the McCauley Court determined that it first had to define the substán-tive law under which plaintiffs action should be considered — i.e. pre-Simmons principles or post-Simmons principles. The McCauley Court concluded that under Cleveland, Simmons would apply prospectively and would not apply in any action commenced prior to April 1996, the date Simmons was decided. Id., 715 A.2d at 1129.

We recognize, as appellants argue, that McCauley was decided on statute of limitations grounds and under the standards applicable to review of an order granting a nonsuit. However, despite the distinctions between the procedural posture of the cases on appeal and McCauley, the McCauley Court nevertheless interpreted Cleveland as severely restricting the applicability of Simmons. Thus, McCauley lends additional support to our conclusion that Simmons does not apply to these cases.

The motion to dismiss is denied. The order of the trial court is affirmed and the cases are remanded for further proceedings consistent with this Opinion. Jurisdiction relinquished.

1 . McCauley was decided on May 11, 1998, during the pendency of the instant appeals. Shortly after the McCauley opinion was issued appellees filed a Motion to Dismiss these appeals, contending that the issues presented were rendered moot by McCauley. This Court denied the Motion, but allowed appellees to renew it before us. We deny appellee’s motion.

2 . As previously stated, all of the cases on appeal were commenced prior to the Simmons decision.