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Pennsylvania High Court Allows Two Actions For Distinct Malignant Diseases Related to Same Exposure

Expanding the application of Pennsylvania’s "two-disease" rule, the Supreme Court of Pennsylvania concluded that Plaintiff could bring separate lawsuits for more than one malignant disease that allegedly resulted from the same asbestos exposure. Daley v. A.W. Chesteron, Inc. No. 27 EAP 2010 (Pa. Feb. 21, 2012), available at www.bdlaw.com/assets/attachments/Daley.pdf. In affirming the Superior Court’s decision, which reversed the trial court’s grant of summary judgment to defendants, the court broadened the scope of the Commonwealth’s "separate disease rule" that had allowed a plaintiff to file one suit for a nonmalignant illness and one suit for a malignant one stemming from the same exposure. Daley, slip op. at 23.  

Plaintiff Herbert Daley filed a personal injury action seeking damages for work-related pulmonary asbestosis and lung cancer in 1990. Id. at 2. He settled his claims with defendants in 1994. Eleven years later, in 2005, Daley was diagnosed with malignant pleural mesothelioma. Plaintiff brought an action against defendants U.S. Supply, Duro-Dyne, A.W. Chesterton along with eleven other defendants. Id. at 3. Plaintiff alleged that his disease was caused by the same asbestos exposure that had resulted in his lung cancer and pulmonary asbestosis in 1989.

Defendants moved for summary judgment, arguing that Pennsylvania’s two-disease rule precluded plaintiff from two separate actions for malignant diseases related to asbestos exposure. The trial court granted defendant’s motion concluding that the rule "permits a plaintiff to bring only one cause of action for nonmalignant diseases caused by asbestos exposure and then only one subsequent action for malignant diseases caused by that same exposure. " Id. at 4 (emphasis in original). The Superior Court reversed and defendants appealed to the state Supreme Court.

The Supreme Court agreed that the trial court had misapplied the law by adopting an "unduly restrictive" interpretation of the two-disease rule. Id. The rule was originally developed to address problems such as anticipatory lawsuits, protracted litigation, evidentiary hurdles and speculative damages, which often resulted when a plaintiff was required to file one action for all potential injuries related to the asbestos exposure. Id. at 21. Requiring a party to seek damages for a potential future diagnosis of mesothelioma, which can have a latency period approximately 30 years longer than lung cancers and asbestosis, would raise the same problems the two-disease rule was intended to address. Id. at 22. The court concluded that a "plaintiff who is diagnosed with a malignant disease, and later diagnosed with a separate and distinct malignant disease may benefit from the separate disease rule." Id. at 23.