Herbert, J. v. American Biltrite ( 2016 )


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  • J-A35008-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    JAMES HERBERT, EXECUTOR OF THE              IN THE SUPERIOR COURT OF
    ESTATE OF VINCENT W. GATTO, SR.,                  PENNSYLVANIA
    DECEASED,
    Appellant
    v.
    AMERICAN BILTRITE AND ITS DIVISION
    AMTICO; AZROCK INDUSTRIES, INC.;
    CERTAINTEED CORPORATION; DAVIS
    FETCH CORPORATION OF
    PENNSYLVANIA; EGGERS INDUSTRIES;
    GEORGIA PACIFIC CORPORATION; H.B.
    FULLER COMPANY; HAJOCA
    CORPORATION; KAISER GYPSUM
    COMPANY, INC.; UNION CARBIDE
    CORPORATION AND ITS LINDE
    DIVISION; WEYERHAEUSER COMPANY,
    Appellees                No. 1702 WDA 2014
    Appeal from the Order Entered October 15, 2014
    In the Court of Common Pleas of Allegheny County
    Civil Division at No(s): G.D. No. 11-019602
    BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
    MEMORANDUM BY BENDER, P.J.E.:                FILED JANUARY 12, 2016
    James Herbert, Executor of the Estate of Vincent W. Gatto, Sr.,
    appeals from the order entered October 15, 2014, which granted Appellees
    J-A35008-15
    summary judgment in this asbestos litigation and dismissed the complaint
    with prejudice as time-barred.1 We affirm.
    Mr. Gatto was occupationally exposed to asbestos while self-employed
    as a brick mason in Virginia.          In June 2003, Mr. Gatto was prescribed a
    computer tomography scan (CT scan) of his lungs.                Dr. Guillermo Olivos
    interpreted the scan and authored a report, diagnosing Mr. Gatto with
    asbestosis. His primary care physician, Dr. Imelda Miranda, discussed the
    diagnosis with Mr. Gatto.         Additional tests were performed in November
    2005, interpreted by Dr. C. Hugh Everhart, a pulmonologist, and found to be
    consistent with the 2003 results. Dr. Everhart’s report specifically notes Mr.
    Gatto’s 2003 diagnosis.        In February 2010, following a right thoracoscopy
    and     biopsy   of   the   pleural    space,    Mr.   Gatto   was   diagnosed   with
    mesothelioma. Mr. Gatto died shortly thereafter in April 2010.
    Appellant commenced this litigation in September 2011. Following the
    close of discovery, in September 2014, Appellees filed several motions for
    summary judgment based upon the Virginia statute of limitations, Va. Code
    Ann. § 8.01-243(A), which requires that an action for personal injury must
    be brought within two years after the cause of action accrues.2 According to
    ____________________________________________
    1
    Union Carbide settled with Appellant and is not a party to this appeal.
    2
    Pursuant to Pennsylvania’s Uniform Statute of Limitations on Foreign
    Claims Act, 42 Pa.C.S. § 5521, the parties agree that the Virginia statute of
    limitations applies. See Appellant’s Brief at 5-6, Appellees’ Brief at 17.
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    Appellees, the only cause of action accrued in 2003, following diagnosis of
    Mr. Gatto’s asbestosis. Therefore, according to Appellees, Appellant’s cause
    of action is time-barred.
    In response, Appellant did not dispute the 2003 diagnosis or that Mr.
    Gatto was aware of it.3        Rather, Appellant argued that the 2003 diagnosis
    was incorrect and that Mr. Gatto’s cause of action did not properly accrue
    until the 2010 diagnosis of his mesothelioma.
    In October 2014, the trial court granted Appellees’ motion for
    summary judgment.4          Appellant timely appealed; and the court issued an
    opinion.
    Appellant raises the following issues:
    1. Whether [Appellant’s] claim for mesothelioma can be barred
    under the Commonwealth of Virginia’s statute of limitations, Va.
    Code Ann § 8.01-249(4) (2014), because of a transcription error
    in a medical record regarding a disease from which [Mr. Gatto]
    never actually suffered.
    ____________________________________________
    3
    Appellant conceded that Mr. Gatto informed Dr. Everhart in 2005 that he
    had asbestosis, thus clearly Mr. Gatto was aware of the diagnosis. See
    Appellant’s Response to the Motion for Summary Judgment at ¶23.
    4
    The trial court’s order specifically grants the motion for summary judgment
    filed on behalf of H.B. Fuller Company, Georgia Pacific LLC, Hajoca
    Corporation,      Weyerhaeuser      Company,      Davis-Fetch   Corporation of
    Pennsylvania, and Domco Products Texas, Inc. f/k/a Asrock Industries, Inc.
    However, the order applies to all remaining defendants. See Pa.R.Civ.P.
    1041.1(f) (“A motion for summary judgment filed by one defendant alleging
    a ground common to one or more other defendants shall be deemed filed on
    behalf of all such defendants.”)
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    2. Whether the trial court erred in resolving a factual dispute
    between medical records and sworn trial testimony of physicians
    in favor of [Appellees], thereby usurping the role of the jury, and
    also failing to look at the evidence in the light most favorable to
    [Appellant].
    3. Whether the trial court erred in ruling that the statute of
    limitations expired on [Appellant’s] mesothelioma claim, when
    the issue of whether [Mr. Gatto] suffered from any “disabling
    asbestos-related disease” prior to his mesothelioma was, at
    least, a contested issue of fact.
    4. Whether Va. Code Ann § 8.01-249(4) permits the running of
    the statute of limitations before a right to the cause of action
    accrues, thereby creating an absurd result.
    Appellant’s Brief at 4.5
    Appellant contends that the Virginia statute of limitations does not bar
    his claim and that, therefore, summary judgment was granted in error. The
    standard and scope of our review is settled.
    As has been oft declared by this Court, summary judgment is
    appropriate only in those cases where the record clearly
    demonstrates that there is no genuine issue of material fact and
    that the moving party is entitled to judgment as a matter of law.
    When considering a motion for summary judgment, the trial
    court must take all facts of record and reasonable inferences
    therefrom in a light most favorable to the non-moving party. In
    so doing, the trial court must resolve all doubts as to the
    existence of a genuine issue of material fact against the moving
    party, and, thus, may only grant summary judgment where the
    ____________________________________________
    5
    Appellant’s brief does not conform to our rules of appellate procedure.
    Appellant presents four issues for our consideration, yet his argument
    includes two sections broken into several subsections that do not directly
    correspond to the four issues identified. See Pa.R.A.P. 2119(a). Essentially,
    Appellant raises a single issue, i.e., whether the Virginia statute of
    limitations time-bars his claim. Appellant contends that it does not and
    levies several arguments in favor of this position.
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    right to such judgment is clear and free from all doubt. On
    appellate review, then, an appellate court may reverse a grant of
    summary judgment if there has been an error of law or an abuse
    of discretion. But the issue as to whether there are no genuine
    issues as to any material fact presents a question of law, and
    therefore, on that question our standard of review is de novo.
    This means we need not defer to the determinations made by
    the lower tribunals. To the extent that this Court must resolve a
    question of law, we shall review the grant of summary judgment
    in the context of the entire record.
    Summers v. Certainteed Corp., 
    997 A.2d 1152
    , 1159 (Pa. 2010) (internal
    citations and quotation marks omitted; formatting modified).
    The premise of Appellant’s argument is simple: Mr. Gatto never had
    asbestosis. See Appellant’s Brief at 10. According to Appellant, the 2003
    diagnosis was merely a transcription error, inadvertent and insufficient to
    trigger the limitations period. 
    Id. at 16-19.
    Indeed, Appellant asserts that
    imparting any legal significance to a misdiagnosis would be absurd.      
    Id. Finally, according
    to Appellant, the trial court erred in disregarding
    competent expert testimony disputing the 2003 diagnosis and opining that
    Mr. Gatto’s exposure to asbestos did not result in a “disabling asbestos-
    related injury” until the 2010 diagnosis of his mesothelioma. 
    Id. at 14-16;
    19-23.
    Under Virginia law, “every action for personal injuries, whatever the
    theory of recovery … shall be brought within two years after the cause of
    action accrues.”   Va. Code Ann. § 8.01-243(a).   A cause of action for an
    asbestos-related injury accrues as follows:
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    In actions for injury to the person resulting from exposure to
    asbestos or products containing asbestos, when a diagnosis of
    asbestosis, interstitial fibrosis, mesothelioma, or other disabling
    asbestos-related injury or disease is first communicated to the
    person or his agent by a physician. However, no such action
    may be brought more than two years after the death of such
    person[.]
    Va. Code Ann. § 8.01-249(4).
    Importantly, Virginia adheres to an “indivisible cause of action” rule.
    Kiser v. A.W. Chesterton Co., 
    736 S.E.2d 910
    , 920 (Va. 2013).
    Although multiple rights of action may arise under a given cause
    of action, a wrongful act generally gives rise to only a single
    indivisible cause of action. … When a plaintiff suffers but one
    actionable wrong or a single wrongful invasion of a single
    primary right such as the right of bodily safety, the plaintiff is
    entitled to but one recovery. … Thus, a statute of limitations
    usually commences to run when injury is incurred as a result of
    a wrongful act. … [W]hen the statute of limitations begins to run,
    it runs as to all damages caused by the wrongful or negligent act
    of another, even if the individual suffers additional damages at a
    later date.
    
    Id. at 916
    (internal citations omitted; formatting and punctuation modified;
    emphasis in original).     This means, according to the Supreme Court of
    Virginia, that an asbestos-related cause of action accrues a single time, thus
    triggering the limitations period, “when the diagnosis of any of the specified
    diseases or some ‘other disabling asbestos-related injury or disease’ is
    communicated to the patient or his agent by a physician.” 
    Id. at 918.
    Here, Appellant does not dispute that Mr. Gatto was diagnosed with
    asbestosis in 2003.      Also undisputed is that Dr. Miranda discussed the
    diagnosis with him.    Clearly, too, Mr. Gatto was aware of the diagnosis,
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    because he relayed that information to Dr. Everhart in 2005.        These facts
    alone are sufficient to trigger the limitations period.      Moreover, as the
    indivisible cause of action rule applies, the subsequent diagnosis of Mr.
    Gatto’s   mesothelioma    did   not   commence    a   new   limitations   period.
    Accordingly, Appellant’s cause of action is time-barred.
    Appellant’s several arguments to the contrary are unavailing.        Upon
    receiving the 2003 diagnosis, Mr. Gatto incurred an obligation to pursue his
    cause of action with all reasonable diligence.
    [U]nder the law of Pennsylvania, it is the duty of the one
    asserting a cause of action to use all reasonable diligence to
    inform himself or herself properly of the facts and circumstances
    upon which the right of recovery is based and to institute suit
    within the prescribed statutory period.           Mere mistake,
    misunderstanding or lack of knowledge on the part of the
    plaintiff is not sufficient to toll the running of the statute of
    limitations.
    Gwaltney v. Stone, 
    564 A.2d 498
    , 500 (Pa. Super. 1989) (applying the
    Tennessee statute of limitations to a cause of action filed in Pennsylvania)
    (internal citations omitted). Thus, the accuracy of the 2003 diagnosis is no
    longer relevant.     Similarly irrelevant are any expert opinions of the
    diagnosis.    Put simply, any dispute regarding the diagnosis should have
    been resolved long before Appellant filed his cause of action in 2010.
    Finally, Appellant’s argument that the 2003 diagnosis was insufficient
    because it failed to qualify Mr. Gatto’s asbestosis as “disabling,” is devoid of
    merit.    See Appellant’s Brief at 15 n.10, 19-23.      The plain language of
    Section 249(4) lists asbestosis specifically as one of the diseases that will
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    trigger the statute of limitations. No qualifying diagnosis is necessary. Va.
    Code Ann. § 8.01-249(4); see also 
    Kiser, 736 S.E.2d at 920
    (holding that
    the mere diagnosis of decedent’s asbestosis was sufficient to trigger the
    limitations period).
    For the above reasons, we discern no error in the trial court’s decision.
    Appellant’s cause of action is time-barred and was dismissed properly with
    prejudice.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/12/2016
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Document Info

Docket Number: 1702 WDA 2014

Filed Date: 1/12/2016

Precedential Status: Precedential

Modified Date: 1/12/2016