Debiec v. Cabot Corp.

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit

12-9-2003

DeBiec v. Cabot Corp
Precedential or Non-Precedential: Precedential

Docket No. 02-2507

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 PRECEDENTIAL

Filed December 8, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 02-2507

MICHAEL ANTHONY DEBIEC,
ADMINISTRATOR OF THE ESTATE OF JANE
LOUISE GULDIN DEBIEC, DECEASED
v.
CABOT CORPORATION, INDIVIDUALLY AND AS
SUCCESSOR IN INTEREST TO CABOT BERYLCO, INC.,
KAWECKI BERYLCO INC., A/K/A KBI KAWECKI
BERYLCO INDUSTRIES, INC. & THE BERYLLIUM
CORPORATION; NGK METALS CORP, INDIVIDUALLY AND
AS SUCCESSOR TO THE BERYLLIUM CORPORATION,
KAWECKI BERYLCO INC. A/K/A KBI, KAWECKI
CHEMICAL CO., & BERYLCO, INC.
Michael Anthony DeBiec,
Appellant

No. 02-2508

SHARON J. REESER,
ADMINISTRATRIX OF THE
ESTATE OF GENEVA C. BARE, DECEASED
v.
CABOT CORPORATION, INDIVIDUALLY AND AS
SUCCESSOR IN INTEREST TO CABOT BERYLCO, INC.
KAWECKI BERYLCO INC.
 2

a/k/a
KBI KAWECKI BERYLCO INDUSTRIES, INC., THE
BERYLLIUM CORPORATION; NGK METALS
CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO
THE BERYLLIUM CORPORATION, KAWECKI BERYLCO
INC.
a/k/a
KBI, KAWECKI CHEMICAL CO. BERYLCO, INC.
Sharon J. Reeser,
Appellant

No. 02-2511

DENNIS J. BRANCO, PERSONAL
REPRESENTATION OF THE ESTATE
OF JOHN C. BRANCO, DECEASED
v.
CABOT CORPORATION, INDIVIDUALLY AND AS
SUCCESSOR IN INTEREST TO CABOT BERYLCO, INC.
KAWECKI BERYLCO INC.
a/k/a
KBI KAWECKI BERYLCO INDUSTRIES, INC., THE
BERYLLIUM CORPORATION; NGK METALS CORP,
INDIVIDUALLY AND AS SUCCESSOR TO THE
BERYLLIUM CORPORATION, KAWECKI BERYLCO INC.
a/k/a
KBI, KAWECKI CHEMICAL CO. BERYLCO, INC;
BRUSH WELLMAN INC.
Dennis J. Branco,
Appellant
 3

No. 02-2512

MARY I. RUSSO;
CHARLES F. RUSSO, H/H,
v.
CABOT CORPORATION, INDIVIDUALLY
AND AS SUCCESSOR IN INTEREST TO CABOT
BERYLCO, INC. KAWECKI BERYLCO INC.;
a/k/a
KBI KAWECKI BERYLCO INDUSTRIES, INC & THE
BERYLLIUM COPORATION C/O C.T. CORPORATION
SYSTEM; NGK METALS CORPORATION, INDIVIDUALLY
AND AS SUCCESSOR TO THE BERYLLIUM
CORPORATION, KAWECKI BERYLCO INC.,
a/k/a
BERYLCO, INC. C/O C.T. CORPORATION SYSTEM
Mary I. Russo;
Charles F. Russo, h/h,
Appellants

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
D.C. Civil Nos. 01-2613, 01-2614, 01-2775, 01-2776
District Judge: Honorable Harvey Bartle III

Argued March 14, 2003
Before: BECKER, Chief Judge,* RENDELL and
AMBRO, Circuit Judges.

(Filed: December 8, 2003)

* Judge Becker completed his term as Chief Judge on May 4, 2003.
 4

RUBEN HONIK (Argued)
JOSEPH J. URBAN
Golomb & Honik P.C.
121 S. Broad St.
Philadelphia, PA. 19107
Attorney for Appellants
KAREN M. CONNORS (Argued)
Cabot Corporation
Two Seaport Lane, Suite 1300
Boston, MA 02210-2019
NEIL S. WITKES
Manko, Gold, Katcher & Fox, LLP
401 City Avenue, Suite 500
Bala Cynwyd, PA 19004
Attorneys for Appellee,
Cabot Corporation
JAMES W. GICKING (Argued)
Marshall, Dennehey, Warner,
Coleman & Goggin
1845 Walnut Street — 21st Fl.
Philadelphia, PA 19103-4717
Attorney for Appellee,
NGK Metals Corporation

OPINION OF THE COURT

BECKER, Circuit Judge.
These personal injury and wrongful death cases,
consolidated for discovery in the District Court and for
disposition in this Court, stem from the deaths of four
people, all of whom worked at and/or lived near the
defendants’ beryllium plant in Reading, Pennsylvania. Each
of the deaths was traceable to Chronic Beryllium Disease
(“CBD”), a result of exposure to that toxin, and the victims
either brought or had brought on their behalf suits against
the Cabot Corporation (“Cabot”) and the NGK Metals
Corporation (“NGK Metals”).
 5

Finding that Pennsylvania’s two year statute of
limitations had run on the plaintiffs’ claims, the District
Court granted summary judgment to the defendants and
denied plaintiffs’ motion for reconsideration. In so doing,
the Court rejected plaintiffs’ argument that the statute was
tolled under the “discovery rule,” which protects plaintiffs
in circumstances in which, through no fault of their own,
they do not discover their injury until after the statutory
period would normally have ended. The plaintiffs argued
that, as required by Pennsylvania law, they had each
brought suit within two years of the date when they knew,
or should have known, that their disease was beryllium-
related. The defendants asserted, however, that the point at
which these plaintiffs could have determined that their
conditions were traceable to beryllium exposure, had they
diligently investigated that possibility, occurred more than
two years before each filed suit.
Concurring with the defendants, the District Court
concluded that no reasonable person could find that any of
these plaintiffs had exercised the “due diligence” in
investigating their physical conditions required in order to
avail themselves of the protections of the discovery rule,
and that therefore the question whether the statute had
run, usually a question for the jury, need not go to one. We
disagree as to plaintiffs Jane Debiec, Mary Russo, and
Shannon Reeser—based on the specific facts of each of
these three cases, we conclude that reasonable minds could
find that each of the decedents exercised due diligence in
investigating her condition, and therefore the question
whether the statute of limitations had run on their claims
should have gone to a jury. The judgments of the District
Court will be reversed as to Debiec, Russo, and Reeser, and
their cases will be remanded for further proceedings. We
conclude, however, that the fourth plaintiff, John Branco,
failed to exercise due diligence, and we will therefore affirm
the District Court’s dismissal of his claim as time-barred.

I. Factual Background
Defendants Cabot and NGK Metals operate a beryllium
manufacturing facility in Reading. They are successors to
Kawecki Berylco Inc., which operated the facility for many
 6

decades. Beryllium is a lightweight, high strength, tensile
metal with a variety of industrial uses. It is also a toxic
substance that can cause both cancer and a chronic
scarring lung disease — CBD. The decedents in these cases
spent much of their lives working and/or residing in close
proximity to the plant, and each contracted CBD. Because
the specific facts of each plaintiff ’s case are critical for
determining whether the statute of limitations has run, we
relate these facts in some detail.

A. Jane Debiec
Jane Debiec (“Debiec”) died in April 2000 at the age of
57. Her autopsy showed that the cause of death of was
CBD. Her husband, Michael Debiec, filed personal injury
and wrongful death claims in May 2001. From 1943 to
1961, as a child and youth, Debiec lived a mile or less from
the defendants’ plant. She began to have respiratory
symptoms during her first pregnancy in 1976 and the
symptoms recurred during her second pregnancy in 1978.
At that point Debiec sought the advice of Dr. John
Shuman, who recommended a lung biopsy. The biopsy
revealed “granulomatous lung disease with significant
fibrosis” and also detected 6.5 micrograms of beryllium per
gram of dried tissue. Shuman’s conclusion on the basis of
this test was that Debiec was suffering from sarcoidosis, a
granulotomous lung disease of unknown cause or origin.
When asked about the significance of the 6.5 micrograms
of beryllium per gram of dried tissue found in Debiec’s
biopsy, Shuman testified “[i]t means there was not very
much beryllium in the tissue. . . . Had there been a
significant amount of beryllium in the tissue, I think one
would certainly have to consider beryllium-induced lung
disease. The fact that there wasn’t any doesn’t—did not
mean that that wasn’t a possibility, but it simply wasn’t
supportive of that. My clinical impression was otherwise
and there just wasn’t a reason to change it.” SA at 525.
In 1980, the Debiecs told Dr. Shuman that they believed
her illness might be related to exposure to zirconium. The
parties dispute the meaning of the notes Shuman took on
the Debiecs’ 1980 visits; Debiec suggests that the notes
 7

demonstrate that he and his wife were concerned only
about zirconium at that time, while the defendants argue
that the Debiecs were already considering litigation against
the plant at that point and make much of the fact that
Shuman recommended that they get a second opinion from
one Dr. Israel, who was the “closest, most internationally
known, expert on sarcoid.” SA at 527. These notes are
important, so we rescribe them at length:
August 26, 1980
Her husband came in with her and I told them I have
not come across any useful information regarding
zirconium or talked to anyone who seemed to know
very much about it. Mr. Debiec came armed with two
publications from the Federal Register, issued from the
Department of Health Education and Welfare. He has
a number of lines underlined, which in reading areas
that are not outlined, has the proverbial effect of lifting
things out of context. One of the areas not underlined,
for example, was “regulatory action was being taken
with respect to cosmetic products based upon the lack
of toxological data adequate to establish a safe level for
use. . . . I talked with Dr. Lane who determined that
the entire biopsy block had been sent to Kemron
Environmental Services for silica, asbestos, and
beryllium exposure. Only beryllium was tested . . .
because of the small sample. Relevant to these other
problems, Jane mentioned that she had previously
lived in an area near Kawecki. As far as I am
concerned at this time, there seems to be little reason
to alter her clinical diagnosis of sarcoidosis. Under the
circumstances, I will encourage her to perhaps, see Dr.
Israel. . . . The evidence for zirconium-induced
granulomas appears to be weak, although I could not
deny the possibility. It seems unlikely that anything
definitive will be able to be shown here. While Jane
states that there is [not] any thought of litigation
involved, I am rather skeptical about that. It would not
surprise me to receive a legalized complaint in the
future about our failure to analyze the biopsy for
zirconium.
August 29, 1980
 8

I explained to her that her biopsy block was sent off for
analysis for asbestos, silica, and beryllium, but [sic]
was insufficient slides for all these tests. Following
conversation with somebody, the beryllium study was
done. Short of another biopsy, we cannot test for
zirconium. She is more interested in having her
symptoms treated than whether or not the problem
was from zirconium since if it were so, the exposure
doesn’t exist anymore, and her treatment would not
change and her symptoms would not behave differently
if she knew that. Her husband, on the other hand, was
somewhat disturbed at my answers . . . and,
apparently did not feel he got a fair shake on his
questions about zirconium. I, again, suggested to her
that for peace of mind, it may be worthwhile, her
seeing Dr. Israel to find out what he thinks about this
possibility.
SA at 17-18.
We read these notes to mean several things. First, the
Debiecs’ (especially Mr. Debiec’s) real concern in 1980 was
zirconium, not beryllium. Second, Shuman was suggesting
that Debiec see Dr. Israel about the possibility that
zirconium, not beryllium, was causing her symptoms.1
Third, the litigation Shuman was talking about was
potential litigation against him and his group, not against
the defendants in this case.
This last conclusion is arguably thrown into some doubt
by Shuman’s deposition, which included the following
colloquy between Dr. Shuman and NGK Metal’s attorney:
Q. And what litigation were you thinking about when
you said that?
A. I mentioned in the same paragraph there,
apparently, was some suspicion about where she had

1. The Debiecs never went to see Dr. Israel. When asked why, Michael
Debiec testified that “Jane had confidence in Dr. Shuman. She had built
up trust, a relationship. When she would have a meeting, she would
come home and we would — I would say to her, how did it go. And she
would always tell me that Dr. Shuman would give her a big hug when
they left. And she wasn’t about to go to see anyone else.” SA at 501-502.
 9

lived, that is, in the neighborhood of this Kawecki-
Berylco at the time, so I guess that issue had arisen.
. . .
Q. Looking at the August 26th, 1980 note, I see down
at the bottom of that, the last sentence of that note, it
says, quote, it would not surprise me to receive a
legalized complaint in the future about our failure to
analyze a biopsy for zirconium, period, closed quote.
When you — what are you talking about when you —
in that sentence? What does that mean?
A. Mr. Debiec is very persistent and I thought he may
— would probably — I thought he might take one of his
questions and just, you know, push it to this extent.
Q. Meaning filing a complaint against you and the
group?
A. I guess that’s what I — well, I guess I’m not sure
who it would be directed against.
SA at 528.
We conclude that despite Shuman’s initial assertion
during his deposition that his notes meant that the Debiecs
were considering filing a lawsuit against the defendants in
1980, those notes were referring to litigation that might be
brought against him and his group.
The defendants draw our attention to a number of other
events and facts that they argue have significance. For
example, they point out that while at Penn State in 1990,
Mr. Debiec’s brother John wrote a research paper which
discussed the possibility of a link between sarcoidosis and
beryllium exposure, and which relied on a discussion of
Jane Debiec’s case. John Debiec testified that when he
wrote that paper, he believed that Mrs. Debiec’s condition
was caused by beryllium. The defendants also point to a
letter from a Colonel George W. Ward of the Army Medical
Department that was attached to the paper. The letter
stated that “Sarcoidosis is a non specific chronic
granulomatous tissue response. Therefore, it is likely that
there are many causes which can produce such non
specific tissue response. One known cause is beryllium.
 10

Whether other elements such as zirconium and aluminum
can also cause this is speculative at this point.” SA at 118.
Defendants also point to a 1992 Environmental
Protection Agency (“EPA”) public meeting in (nearby)
Muhlenberg, Pennsylvania regarding the Reading plant.
Michael Debiec spoke at that meeting and stated that “. . .
I have been doing research on this for many years because
my wife is seriously ill with a disease called sarcoidosis.
And she lived in [nearby] Temple. And I done research for
ten years, and I found out through different doctors that
there’s only one known cause of Sarcoidosis and pulmonary
interstitialitis. And that comes from Beryllium.” SA at 201.
Mr. Debiec testified that after the meeting his wife told him
that he was “crazy” for pursuing the idea that she may have
had berylliosis. In response to defense counsel’s question
“Did you believe that her illness proved that breathing
beryllium oxide was hazardous?”, Mr. Debiec testified “I
may have suspected it lightly, but that was only in the
beginning. Later I did not. Once I talked to Dr. Shuman
and he was emphatic. Whatever I did I did on my own.” SA
at 514-515.
In October of 1993, Mr. Debiec wrote to the Agency for
Toxic Substances and Disease Registry (“ATSDR”) and
professed disappointment at the agency’s handling of its
study of the Reading plant. He wrote:
I’m appalled and shocked that your investigative team
could not come up with any other residents who are
suffering from Beryllium related illnesses or who may
have died as a result of Beryllium poisoning. . . . I’m
tired of relating my wife’s case to prove breathing
beryllium oxide is extremely hazardous to one’s health.
She lived half a mile from the NGK plant on dry dirt.
At the age of thirty-four she has one-third breathing
capacity compared to a normal adult. A biopsy of her
lungs shows that she has Beryllium in her lungs. . . .
According to Dr. Lee Newman, an occupational
medicine specialist at the National Jewish Center for
Immunology and Respiratory Medicine, a very minute
amount of Beryllium can cause the disease.
SA at 258-59.
 11

The ATSDR’s final report on the Reading plant was
issued in June 1995. The report noted that some
community residents were concerned that people “living in
the Reading area may develop sarcoidosis from exposure to
beryllium oxide.” SA at 274. The report also observed that:
Diagnosed cases of both acute and chronic beryllium
disease have been extremely rare in recent decades. As
of 1983, no cases of occupational berylliosis had been
reported among individuals first exposed after 1973.
With only one exception, no cases of CBD have been
reported from indirect or nonoccupational exposure
among individuals whose exposure began after about
1950. However, since CBD mimics the symptoms of
sarcoidosis and may readily be confused with the latter
disease, it is possible that additional, undiagnosed
cases of CBD, masquerading as sarcoidosis, have
occurred.
SA at 295.
The report concluded that while concentrations of
beryllium had at times exceeded recommended levels near
the plant, there was little public health hazard. It
cautioned, however, that:
if any adverse health effects occurred in response to
higher off-site exposures in the past, they would
probably be limited to CBD in a sensitive (i.e.
immunologically predisposed) subpopulation living
near the site. Since any past cases of nonoccupational
CBD would likely have been misdiagnosed as
sarcoidosis, long-term residents who have been
exposed to clinically significant levels of beryllium in
the past may want to consider consulting an
occupational/environmental medicine specialist who
can determine whether specialized testing for beryllium
sensitivity is appropriate.
SA at 296.
Dr. Shuman did not alter his diagnosis of Debiec’s
condition, that she had sarcoidosis not CBD, during her
lifetime. However, an April 2000 post-mortem diagnosis,
made under the Case Registry of Chronic Beryllium
 12

Disease, determined that Debiec had been suffering from
CBD. Mr. Debiec filed suit in May 2001.

B. Mary Russo
Plaintiffs Mary and Charles Russo filed their action on
May 24, 2001, alleging that Mrs. Russo (“Russo”) had been
diagnosed with CBD on June 25, 1999. Russo died on
February 5, 2002; her death certificate identified the causes
of death as respiratory failure, pulmonary fibrosis, and
CBD.
Russo had worked at the defendants’ beryllium plant in
an office job, not in the actual plant itself, for between 18
and 20 months spanning the years 1946-48. After a month
on the job, she developed breathing troubles. Her family
doctor ordered her to stay at home for a thirty day period
while he tried to determine the source of her difficulties.
She later returned to work at a different part of the
complex. After leaving her job at the plant, Russo lived and
worked within miles of the plant for half a century.
In 1993, a routine examination determined that Russo
had “[c]hronic interstitial fibrotic appearing changes . . . in
both upper lungs. These are not changed appreciably from
old films. The lower lungs show some very mild chronic
interstitial disease.” SA at 3. In February 1998, Russo
underwent an examination by pulmonologist Dr. Richard
Bell, who was aware that Russo had worked at the
beryllium plant in the 1940s. His diagnosis stated that “I
feel that the patient has an idiopathic pulmonary fibrosis.
I do not believe it is related to the beryllium employment.”
App. at 76. Two weeks later, Russo contacted Dr. Bell again
to ask if her lung condition might be related to breast
cancer that had manifested itself in 1995. Dr. Bell told her
that this was improbable and restated his view that “it was
highly unlikely that this was related to her beryllium
exposure approximately five (5) decades prior.” SA at 77.
Russo testified that she was dissatisfied with her visit to
Dr. Bell, and that “when I mentioned that I worked at
Beryllium, there was a question in my mind now, because
in the local papers they were having all different kind of
articles coming up telling us about people that worked at
 13

Beryllium and years later developing these symptoms.” SA
at 73-74. Russo went on to say that:
So, when I told Dr. Bell this, what I thought, he said to
me, It’s so long ago, Mary. He says it can’t be that or
something to that effect ’cause that is a long stretch.
But I wasn’t happy with that. It bothered me because
I heard people that didn’t even work there had this.
They didn’t even have to work at the plant.
SA at 74. During her recovery from knee surgery in April
1998, Russo’s lung condition worsened. On April 10, she
had a 30 to 40 minute coughing attack and was admitted
to the hospital for a week. During this hospitalization,
Russo began treatment with a new doctor in Bell’s group—
Dr. Mengel. However, Russo’s lung condition worsened
throughout 1998 and by November of that year she
required portable oxygen. Dr. Mengel testified that when he
discovered that Russo had worked at the beryllium plant, it
“rais[ed] an alternative diagnosis to idiopathic pulmonary
fibrosis” and he considered the possibility that Russo had
CBD. SA at 133. He also testified, however, that he did not
change the diagnosis at that point because he “didn’t have
any evidence yet.” Id. Dr. Mengel recalled that he had
wanted to have a lung biopsy done on Russo for diagnostic
purposes, but that she was so ill he feared it would have
killed her. SA at 136.
The defendants point out that Russo began to collect
newspaper articles on CBD “at some point” after her
February 1998 visit to Dr. Bell. The articles they refer to
were from the March 29 and April 12, 1999 Reading Eagle.
The defendants also stress the fact that Russo asked both
Dr. Bell and Dr. Mengel about the possibility that she had
gotten sick as a result of her proximity to the Reading
plant. Russo argues that it was as a result of reading the
newspaper articles that she requested a beryllium
lymphocyte proliferation test (“BeLPT”), the results of which
became available on June 25, 1999 and confirmed that she
had CBD.2 The idea to take the test was her own. None of

2. The BeLPT is currently used in the diagnosis of beryllium sensitization
and CBD. It involves culturing cells from the blood or lung in the
presence or absence of beryllium and with a radioactive DNA precursor,
tritiated thymidine. App. at 68.
 14

her doctors raised the possibility that her condition was
related to her employment at the beryllium plant some half
century earlier. Dr. Mengel altered his diagnosis from
idiopathic pulminary fibrosis to CBD only after the results
of the BeLPT came back positive. He testified that this new
diagnosis was based “primarily” on these results, and only
“secondarily” on the fact that Russo had worked in and
lived near the Reading plant. SA at 136, 138.

C. Shannon Reeser (Administratrix of the
Estate of Geneva Bare)
Sharon Reeser brought her personal injury and wrongful
death claims on June 6, 2001 as the administratrix of the
estate of her mother, Geneva Bare, who died in November
2000 of CBD. Bare lived within two blocks of the Reading
plant throughout most of her life. She began to experience
difficulty with her lungs in the early 1990s, at which point
she came under the care of a pulmonologist, Dr. Krol. One
of Bare’s daughters, Judith Forry, testified that she
accompanied her mother to a doctor’s appointment in the
mid or late 1990s (she was unsure of the date and if the
appointment was with Dr. Krol or with a Dr. Muvdi) and
that her mother asked if berylliosis was a possibility, but
that the doctor “really kind of put it off. He really didn’t
think it was important to her case. He said the test wasn’t
really accurate.” SA at 199. Forry testified that her mother’s
question had been prompted by an article on berylliosis in
the Reading Eagle, but that this was the first and only time
Bare raised the issue of berylliosis until shortly before she
died, when Bare was reminded of the possible link between
beryllium exposure and lung disease by hearing that a
neighbor had been diagnosed with CBD. SA at 200.
In their personal notes on her case, Bare’s physicians
raised the possibility that she had berylliosis. In 1996, for
example, Dr. Krol wrote a letter to another of Bare’s
physicians stating that she:
certainly has progressive interstitial lung disease and
had significant interstitial lung disease as far back as
1977. . . . I don’t know the cause of her interstitial
disease. It certainly could be a form of idiopathic
 15

pulmonary fibrosis, berylliosis, sarcoidosis, even
bronchiectasis. . . .
SA at 5. In an earlier letter regarding Bare, Dr. Krol had
noted her “exposures at the beryllium plant,” SA at 3, and
in his January 1997 record of Bare’s condition, he wrote
that she had “[s]table pulmonary fibrosis since 1977” and
that “[i]t has been slowly progressive[,] question of
berylliosis.” SA at 8. In July 1997, Dr. Krol again noted that
Bare suffered from “Interstitial lung disease, possible
berylliosis.” SA at 8.
In response to an inquiry about the “question of
berylliosis” language in Dr. Krol’s January notes, Judith
Forry testified that “Dr. Krol never recommended it could be
[berylliosis]. That would be my mother’s guess. . . . That
would probably be my mother questioning him.” SA at 208.
A Dr. Stelmach also took notes on Bare’s condition, in
February 1999, and stated that she had a “longstanding
history of interstitial lung disease and pulmonary fibrosis of
undetermined etiology, although there is a very weak
suggestion it is related to beryllium exposure, in that she
lived in the area of the beryllium factory.” App. at 108.
While it is clear that Bare’s physicians thought berylliosis
might be a possibility, Reeser testified that they never
shared this with Bare herself. When asked if Dr. Krol or
any other doctor had informed Bare of the possibility that
her condition might be linked to her exposure to beryllium,
she responded “my goodness, no.” App. 110-111. Reeser
asserts that she herself first became aware of the potential
connection between her mother’s illness and beryllium
exposure in 2000, when one of her neighbors was
diagnosed with CBD. App. 114-115. The presence of CBD
was first confirmed during Bare’s autopsy.

D. John Branco
John Branco (“Branco”) worked at the Reading plant for
33 years and lived within a mile of the plant for most of his
life. He died of lung fibrosis due to CBD in June of 1999.
In 1995, Branco began to have difficulty with his
breathing, incident to exertion. In June of that year, he
 16

received a letter from the Department of Health and Human
Services (“HHS”), apprising him of a study the Department
had conducted on the health of workers exposed to
beryllium. The letter stated that:
Before this study began, we knew that people exposed
to beryllium may develop two forms of beryllium
disease, acute and chronic. These are lung diseases
caused by exposure to beryllium. . . . Our study,
however focused on lung cancer. Some studies had
linked lung cancer to beryllium exposure. However,
this link was uncertain. . . . We found an increased
risk of lung cancer in workers exposed to beryllium at
all plants combined. . . . Chronic Beryllium disease
and lung cancer may develop many years after the last
exposure to beryllium. Thus, you and your doctor
should be aware that you might have an increased risk
of developing these diseases. . . . If you have lung or
breathing problems that don’t go away, see your
doctor.
SA at 40-42. (Emphasis in original).
In February 1997, Branco received a chest x-ray, which
revealed the presence of interstitial lung disease, the
“etiology of ” which was “uncertain.” SA at 3. In May of
1997, Branco had cardiac bypass surgery. During his
recovery, one of his cardiologists, Dr. Feater, noted that
Branco “has had a chronic history of shortness of breath
secondary to his berylliosis.” SA at 10. In early August
1997, a second cardiologist, Dr. Politzer, wrote to Branco’s
personal physician advising him of Branco’s condition, and
stated that “the patient was felt to have respiratory failure
secondary to chronic interstitial fibrosis which is most
likely secondary to berylliosis, given the patient’s thirty-five
year work history with American Beryllium.” SA at 17.
Branco was referred to a pulmonologist, Dr. Mariglio, in
August 1997. At this point, both Branco and Dr. Mariglio
were suspicious about a potential link between Branco’s
condition and his exposure to beryllium. As a result, Dr.
Mariglio referred Branco to Dr. Rossman, a berylliosis
expert at the Hospital of the University of Pennsylvania.
In his letter to the University of Pennsylvania doctors, Dr.
Mariglio wrote that his “Impression” was that Branco had
 17

“progressive Interstitial Lung Disease with respiratory
failure most likely berylliosis, rule out other forms
Interstitial Lung Disease.” On September 15, 1997, Dr.
Mariglio wrote to Branco’s personal physician that “due to
his previous exposure to berylliosis, the most likely culprit
initiating his Interstitial Lung Disease remains beryllium
exposure.” Dr. Rossman took x-rays and performed a
BeLPT and a bronchoscopy with bronchoalveolar lavage
(“BAL”). Neither the BeLPT, nor the BAL showed any
evidence of response to beryllium. In his letter to Dr.
Mariglio about these tests, Dr. Rossman wrote:
As you can see from the enclosed results, there was no
significant proliferation of either his blood or lung cells
to beryllium sulfate or beryllium fluoride. Of note, the
positive controls of the lung cells did not respond to
the mitogens, PHA and Con A, or to the recall antigen,
Candida, and therefore this is a technically
unsatisfactory study. Transbronchial biopsy showed
only mild chronic inflammation. Thus, these studies
cannot confirm evidence of chronic beryllium disease
being the cause of Mr. Branco’s interstitial lung
disease. Other causes must be considered such as
bronchiolitis obliterans or idiopathic pulmonary
fibrosis. It is recommended that Mr. Branco have a
repeat bronchoalveolar lavage to definitively rule out
beryllium disease since the lung proliferative results
were technically unsatisfactory though negative.
App. at 96-97. Upon receipt of this letter, Dr. Mariglio
called Branco and told him that “[h]is lymphocyte
proliferation studies were negative for evidence of beryllium
related disease” and that “[w]e will treat [you] as IPF.” App.
at 104. The testing process was physically debilitating for
Branco, causing “deterioration . . . such that [ ] he
developed increasing hypoxemia and required an overnight
admission to the Hospital of the University of
Pennsylvania.” App. at 105. Already quite ill at that point,
Branco made it clear that he did not want to undergo
another round of tests with Dr. Rossman. App. at 105.
As a result of Branco’s visit to Dr. Rossman, the Branco
family’s fear that his condition was beryllium-related
evaporated. When asked whether Rossman’s examination
 18

had an effect on his thinking, Dennis Branco, the
decedent’s son, testified “Oh, yes. I didn’t think he had
berylliosis then.” App. at 93-94.

II. Legal Standard

A.
We confront the question whether, given each plaintiff ’s
specific history, the District Court properly found that their
causes of action were barred by the statute of limitations.3
Because “state tolling principles are generally to be used by
a federal court when it is applying a state limitations
period,” Vernau v. Vic’s Market, Inc., 896 F.2d 43, 45 (3d
Cir. 1990), in this diversity action we look to Pennsylvania
law and predict how the Pennsylvania Supreme Court
would decide this case. See Bohus v. Beloff, 950 F.2d 919,
924 (3d Cir. 1991).
Pennsylvania has a two year statute of limitations for
personal injury and wrongful death actions. 42 Pa. Cons.
Stat. § 5524(2). The question before us is, at what point did
the plaintiffs’ claims accrue? Generally, a claim accrues “as
soon as the right to institute and maintain a suit arises,”
Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d
468, 471 (Pa. 1983), which, in most tort actions, is at the
moment the injury is sustained. In order to “ ‘ameliorate the
sometimes harsh effects’ of the statute of limitations,”
however, Pennsylvania courts have crafted an exception to
this rule for situations in which a party, through no fault
of his or her own, does not discover her injury until after
the statute of limitations normally would have run. Bohus,

3. We exercise plenary review over a district court’s grant of summary
judgment and apply the same standard as the district court; i.e.,
whether there are any genuine issues of material fact such that a
reasonable jury could return a verdict for the plaintiffs. Fed. R. Civ. P.
56(c). McNulty v. Citadel Broadcasting Co., 58 Fed. Appx. 556 (3d Cir.
2003). We are required to “view the record and draw inferences in a light
most favorable to the non-moving party.” In re IKON Office Solutions, Inc.,
277 F.3d 658, 666 (3d Cir. 2002). The District Court had jurisdiction
over these cases pursuant to 28 U.S.C. § 1332. This Court has appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
 19

950 F.2d at 924 (quoting Cathcart v. Keene Indus.
Insulation, 471 A.2d 493, 500 (Pa. Super. Ct. 1984)). Latent
disease cases often implicate this so-called “discovery rule,”
which tolls the statute. In this type of case, “the statute of
limitations begins to run . . . when the plaintiff knows, or
reasonably should know: (1) that he has been injured, and
(2) that his injury has been caused by another party’s
conduct.” Cathcart, 471 A.2d at 500. The burden is on the
party claiming the benefit of the discovery rule to prove that
she falls within it. Dalrymple v. Brown, 701 A.2d 164, 167
(Pa. 1997); Cochran v. GAF Corp., 666 A.2d 245, 249 (Pa.
1995).
In order to take advantage of the discovery rule, a
plaintiff must have exercised “due diligence” in investigating
her physical condition. Bohus, 950 F.2d at 924. We have
explained that “[t]he ‘polestar’ of the discovery rule is not
the plaintiff ’s actual knowledge, but rather ‘whether the
knowledge was known, or through the exercise of diligence,
knowable to [the] plaintiff.’ ” Id. at 925 (quoting O’Brien v.
Eli Lilly & Co., 668 F.2d 704, 711 (3d Cir. 1981). The
Pennsylvania Supreme Court has described the required
diligence in this setting as follows:
Reasonable diligence is just that, a reasonable effort to
discover the cause of an injury under the facts and
circumstances present in the case. Long ago we
recognized that there 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.
Cochran, 666 A.2d at 249 (quotation marks omitted). The
Court stressed that:
[r]easonable diligence is an objective, rather than a
subjective standard. Under this standard, the
plaintiff ’s 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.
Id. (quotation marks omitted).
 20

In sum, the statutory time period begins to run in latent
disease cases at the moment at which the plaintiffs
possessed “sufficient critical facts to put [them] on notice
that a wrong has been committed and that [they] need
investigate to determine whether [they were] entitled to
redress.” Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.
1985).
In Bohus, we held that “[t]he question whether a plaintiff
has exercised reasonable diligence is usually a jury
question.” 950 F.2d at 925. The Pennsylvania Supreme
Court has cautioned, however, that while this question is
“usually for the jury, . . . . [w]e also recognize the well
established principle that where the facts are so clear that
reasonable minds cannot differ, the commencement period
may be determined as a matter of law.” Cochran, 666 A.2d
at 248.

B.
While the parties agree on these basic legal standards,
they disagree about how to apply them in this case and,
more specifically, about how to measure the impact of a
professional medical diagnosis on a court’s evaluation of
whether a plaintiff has exercised reasonable diligence in
investigating her condition. This is an important issue here,
because at some point doctors told each of the plaintiffs
that it was unlikely they were suffering from CBD.
In support of their argument that the plaintiffs exercised
reasonable diligence in these cases, Debiec et al. rely on a
line of Pennsylvania cases, starting with Trieschock v.
Owens Corning, 511 A.2d 863 (Pa. Super. Ct. 1986), that
stands for the proposition that in determining when the
statute of limitations begins to run, a plaintiff cannot be
charged with having more information than his doctors
have about his condition. The defendants counter that
Trieschock and its progeny are no longer good law.
Trieschock involved a diagnosis of asbestosis. After a
screening of employee medical results in March 1982, an
Owens-Corning doctor informed Trieschock that he
suspected he had asbestosis and that he had scheduled an
appointment for him to see a pulmonary specialist.
 21

Trieschock saw the specialist on April 8, 1982 and was
definitively diagnosed with asbestosis. He brought suit
against Owens-Corning on April 6, 1984. Owens-Corning
argued that the statute of limitations had started to run in
March 1982 when the company doctor told Trieschock of
his suspicions, not in April when Trieschock received the
definitive diagnosis. The Court disagreed, holding that:
A plaintiff in a creeping disease case should not be
required to have greater knowledge than his physicians
about his medical condition. If those physicians are not
reasonably certain about his diagnosis, then he
certainly cannot be bound to have the knowledge
necessary to start the statute of limitations running.
Id. at 866. While the initial conversation with the Owens-
Corning doctor did not therefore start the statute running,
the Court held that it “activated a duty on appellant’s part
to determine, with due diligence, whether he did, in fact,
have that disease.” Id.4
The defendants protest that Trieschock is no longer good
law and point to language in Ackler v. Raymark Industries,
Inc., 551 A.2d 291 (Pa. Super. Ct. 1988), and Souders v.
Atlantic Richfield Co., 746 F. Supp. 570 (E.D. Pa. 1990),
criticizing Trieschock. In Ackler, the Pennsylvania Superior
Court observed in dicta that:
In Trieschock [ ] the Court stated that a plaintiff in a
creeping disease case is not required to have a greater
knowledge than his physician about his medical
condition, and if the physician is not reasonably
certain as to the diagnosis, then a plaintiff cannot have
the knowledge necessary to commence the running of
the statute of limitations. We do not believe this is a
correct statement of the law, as ‘reasonable certainty’
by a physician or the patient is not required by
Cathcart. All that Cathcart requires is that the plaintiff
knows he has an injury, or in the existence of

4. Trieschock has been followed by two other Pennsylvania cases,
discussed infra: Stauffer v. Ebersole, 560 A.2d 816 (Pa. Super. Ct. 1989)
and Frisbie v. Wiseman, 56 Pa. D. & C.4th 403 (Pa. Common Pleas
2001).
 22

reasonable diligence, should have discovered that he
has a creeping disease. So long as the claimant is
aware that he has an injury there is no requirement
that he be aware of a precise diagnosis as some
language seems to suggest.
Id. at 296 n.3. See also Groover v. Riddle Mem’l Hosp., 516
A.2d 53, 57 (Pa. Super. Ct. 1986) (“[Plaintiff] need not have
known the precise medical cause of the injury in order to
commence the running of the statute of limitations.”)
Similarly, in Souders the District Court noted that “I find
that Trieschock confuses what is meant by medical
certainty and legal certainty and for that reason is not
worthy of consideration.” 746 F. Supp. at 576.
In Stauffer v. Ebersole, 560 A.2d 816 (Pa. Super. Ct.
1989), however, decided after Ackler and Groover, the
Pennsylvania Superior Court followed Trieschock and held
that a preliminary diagnosis of an injury stemming from
medical malpractice was not enough to start the statute
running. More importantly, despite the criticism of
Trieschock, this Court views itself as bound by its holding
in Bohus, supra, where we stated that “lay persons should
not be charged with greater knowledge of their physical
condition than that possessed by the physicians on whose
advice they must rely.” 950 F.2d at 929. This endorsement
is binding on this Court, notwithstanding the contradictory
Pennsylvania Superior Court opinions on this issue. See
Smith v. Calgon Carbon Corp., 917 F.2d 1338, 1341, 1343
(3d Cir. 1990) (holding that in matters in which “we do not
have the benefit of direct guidance from the Pennsylvania
Supreme Court . . . [w]e are nevertheless required to
‘predict the position which that court would take in
resolving this dispute,’ ” and “in the absence of a clear
statement by the Pennsylvania Supreme Court to the
contrary or other persuasive evidence of a change in
Pennsylvania law, we are bound by the holdings of previous
panels of this court”)(quoting Robertson v. Allied Signal,
Inc., 914 F.2d 360, 364 (3d Cir. 1990)).5 We also cautioned

5. At all events, defendants would have us read Groover and Ackler too
broadly. Groover dealt with a situation in which, while the exact nature
of the plaintiff ’s injuries was uncertain, it was clear from the outset that
 23

in Bohus, however, that “[t]here is indeed some point in
time when a patient’s own ‘common sense’ should lead her
to conclude that it is no longer reasonable to rely on the
assurances of her doctor.” 950 F.2d at 930. But, we added,
“[i]n ascertaining this point in time, however, we are
mindful that ‘[t]o put upon [a patient] the duty of knowing
the nature of her ailment and its relation to her prior
treatment before it is ascertained with a degree of certainty
by the medical profession is a great burden to impose upon
her.’ ” Id. (quoting Stauffer, 560 A.2d at 818) (second and
third alterations in original).
To the extent that the defendants argue that a definitive
diagnosis of CBD was not necessary to start the statute
running, we agree; unrebutted suspicion that a claimant
has a particular disease, which is an injury caused by
another, is sufficient to start the clock. However, we also
conclude that the fact that a definitive diagnosis is not
necessary to start the statute running when a plaintiff
suspects she has been injured and believes she knows the
cause of her injury does not mean that when a doctor

she had suffered some kind of an injury caused by another, as she
experienced severe pain after receiving an injection. We do not here
confront a situation in which it was immediately clear that the plaintiffs
had suffered an injury caused by another; the plaintiffs in the cases at
bar developed illnesses over a long period of time and did not know from
the outset that their condition was an injury caused by another. It made
sense under the circumstances in Groover that the statute should begin
to run as soon as the plaintiff was aware that she had been injured, not
at a later point when she knew the exact nature of that injury, but the
rule of Groover is not transferable to the cases at bar.
Ackler dealt with the question whether a plaintiff ’s signing of a
workmen’s compensation claim stating that he has asbestosis was
sufficient to start the statute running. The Ackler plaintiff believed he
had asbestosis, but had yet to receive a definitive diagnosis. The Ackler
Court observed that “[i]t is not necessary that the exact nature of [the
plaintiff ’s] injury be known so long as it objectively appears that [the
plaintiff] is reasonably charged with the knowledge that he has an injury
caused by another.” 551 A.2d at 293. That situation is distinct from
those we confront here, in that the instant plaintiffs either did not
suspect that they had CBD or were told by their physicians that they did
not.
 24

affirmatively tells a claimant that she does not have a
certain disease, and therefore that the defendant was not
the cause of her injury, the fact that the claimant harbors
her own suspicions to the contrary necessarily starts the
clock as well.6
This conclusion is buttressed by the well-reasoned
opinion in Frisbie v. Wiseman, 56 Pa. D. & C.4th 403 (Pa.
Common Pleas 2001). This medical malpractice case was
brought against a physician who mis-diagnosed cervical
cancer as genital herpes. The plaintiff filed her complaint
more than two years after she initially suspected that her
diagnosis might be incorrect. The Court held that despite
these suspicions, and the possibility that she could have
sought a second opinion, the fact that the plaintiff ’s doctor
and physician’s assistant repeatedly assured her that she
had herpes, not cancer, meant that the statute did not start
to run until a second physician’s assistant recommended a
biopsy and the cancer was discovered.
In addition, in Bohus this Court held that a plaintiff ’s
reliance on a doctor’s assurances is reasonable as long as
the plaintiff retains confidence in the doctor’s professional
abilities. In other words, a doctor’s assurances that a
plaintiff does not have a particular injury may toll the
statute of limitations until that “point in time when a
patient’s own ‘common sense’ should lead her to conclude
that it is no longer reasonable to rely on the assurances of
her doctor.” 950 F.2d at 930.
In sum, we conclude that this set of cases about the
relationship between a claimant and her physicians stands
for two propositions: (1) a definitive diagnosis of an injury

6. There is, of course, a distinction between a plaintiff ’s discovery of the
precise medical nature of her injury and her suspicions about the cause
of that injury. While we agree that a plaintiff ’s legal responsibilities are
tied to the latter rather than the former, in the cases we confront here
discovery of the precise medical nature of the injuries and the cause of
the injuries are intertwined. If the precise medical nature of the
plaintiffs’ injuries was CBD, then the cause of their injuries was almost
certainly the beryllium plant. If they were affirmatively told that they did
not have CBD, then they had little reason to suspect that the beryllium
plant was the cause of their injuries.
 25

is not necessary to start the statute running; and (2) a
definitive negative diagnosis may be sufficient in some
cases to overcome the fact that the claimant harbored
suspicions that she had a particular injury. Having laid out
the basic legal standards applicable to all four cases, we
turn to the specifics of each plaintiff ’s case.7

III. Application of the Legal Standard

A. Debiec
The defendants contend that the statute of limitations on
Mr. Debiec’s claim began to run “no later than July 22,
1992,” the date of the public EPA hearing at which he
spoke about his suspicion that his wife had berylliosis. Mr.
Debiec counters that it was not clear that his wife’s death
was beryllium-related until an autopsy was performed after
her death on April 12, 2000, and that the statute began to
run at that point. The suit was filed on May 29, 2001.
The defendants point to a number of facts in support of
their argument. Specifically, they urge that by the time she
visited Dr. Shuman in August of 1980, Debiec was aware
that her lung condition might be caused by exposure to an
environmental pollutant, possibly beryllium. In addition,
Mr. Debiec had undertaken significant research into the
cause of his wife’s ailment, and had received
correspondence from Colonel Ward informing him that
beryllium was one known cause of non-specific chronic

7. Debiec et al. also argue that summary judgment in their cases was
inappropriate because it was not granted in two other “substantially
similar” cases before the same District Judge—Eda Anthon v. Cabot
Corp., Civil Action No. 01-3969 (A204-214), and Carolyn M. Koch v. Cabot
Corp., Civil Action No. 01-5187 (A215)—which stem from the same
general circumstances as the cases at bar.
While the facts in Anthon and Koch certainly bear a strong general
resemblance to the facts of these cases, the District Court’s rulings in
those cases can have no impact on our evaluation of the instant cases.
These determinations are individually tailored to the specific facts of
each case, so the ruling in one case does not control what should be
done in other cases.
 26

granulomatous tissue. Defendants also draw our attention
to Mrs. Debiec’s brother-in-law John’s research paper
linking sarcoidosis to berylliosis, and to Michael Debiec’s
speech at the EPA meeting in July 1992, in which he
discussed the possible links between sarcoidosis and
beryllium. Finally, the defendants rely on the ATSDR
report, which advised that CBD could “masquerade” as
sarcoidosis.
Defendants urge that this information was more than
sufficient to put Debiec on notice that she had an injury for
which redress might be available, and argue that Debiec
simply failed to use reasonable diligence to investigate her
claims. They remind us that “a definitive diagnosis [of the
injury] is not needed for the statute of limitations to run,”
and submit that the standard for reasonable diligence laid
out in a number of Pennsylvania cases makes it clear that
Mrs. Debiec’s efforts were not sufficient for her to avail
herself of the discovery rule.
The strongest of these cases, in defendants’ view, is
Cochran v. GAF Corp., 666 A.2d 245 (Pa. 1995), which
involved a wrongful death suit brought against
manufacturers of asbestos-containing products. In June of
1981, Cochran, a steel worker, was admitted to the hospital
with back pain. During his stay, doctors performed an
analysis of his lung tissue and concluded that he had
cancer. At the time, Cochran had been smoking one-and-a-
half packs of cigarettes a day since 1947, and in response
to this diagnosis he quit smoking. There was no discussion
in 1981 that his cancer might have been caused by
exposure to asbestos. In March 1985, Cochran was again
admitted to the hospital after chest x-rays showed the
presence of a mass in his lung, which turned out to be a
tumor. Cochran’s 1985 admission records made the first
mention that his lung problems might have been related to
asbestos. At that point, Cochran hired an attorney, who
arranged for a doctor to examine Cochran’s lung tissue in
order to discover the cause of his malignancy. In August
1985, the examining doctor determined that the lung
cancer was asbestos-related, and in September 1985
Cochran filed his complaint against the asbestos
manufacturers.
 27

They responded by moving for summary judgment on the
ground that Cochran should have known his cancer was
asbestos-related in 1981, and that therefore the 2 year
statute of limitations on his claim had run. The trial court
granted the motion and the Pennsylvania Supreme Court
affirmed, holding that Cochran had not exercised due
diligence in discovering the cause of his cancer. The Court
reasoned that:
The record indicates that there was ample evidence to
support a diagnosis of asbestos-related lung cancer at
that time. However, Mr. Cochran did not seek
additional legal or medical help to ascertain the precise
cause of his cancer until March of 1985. Appellant’s
sole explanation for this nearly four year lapse is the
assertion that the decedent believed that his cancer
was caused by his smoking habit, and he, accordingly,
stopped smoking. There is no medical evidence in the
record to support decedent’s mistaken belief that his
cancer was caused solely by his smoking.
Id. at 218.
While defendants lean heavily on Cochran, that case is
distinguishable from Debiec’s case in at least one key
respect. In Cochran, the plaintiff was told he had cancer,
and was told to stop smoking, but was apparently not told
that his smoking had caused his cancer. Cochran himself
came to that mistaken conclusion. In the case at bar,
Debiec was told she had sarcoidosis, not CBD, and that it
was very unlikely that her ailment had been caused by
exposure to beryllium. Cochran knew he had an ailment
whose origin could be discovered, but he chose not to take
the necessary steps to make this discovery. Debiec was told
that the cause of her ailment was not beryllium and
therefore she did not have the same incentives as Cochran
to pursue further research on her condition. Therefore,
while we agree that Cochran creates a fairly high bar for
what qualifies as reasonable diligence, we do not think it
dooms Debiec’s case.
Debiec, for his part, relies heavily on Burnside v. Abbott
Laboratories, 505 A.2d 973 (Pa. Super. Ct. 1985), a case
involving suits against pharmaceutical companies brought
 28

by women who had suffered damage to their reproductive
organs as a result of their mothers’ ingestion of a drug
called DES. The statute of limitations question in that case
came up in relation to the suit brought by one of these
plaintiffs, a woman named Ann Lynch. In August, 1979,
Lynch was told by her OB-GYN, Dr. Allen, that she had a
cervical stenosis. In that same month, Lynch’s mother told
her that she (the mother) may have taken DES while
pregnant with Ann and that she had recently seen a
television program in which a woman had stated that she
had become “really sick” because her mother had taken
DES while pregnant. Lynch then called her mother’s
obstetrician, Dr. Boal, who told her that her mother had
indeed taken DES, but that there was no need to worry.
Lynch also asked her own doctor if her ailments might be
related to DES and he told her that they were not. In
November, 1979, Lynch met with Dr. Allen for a post-
operative visit and he again told her that there was no need
to worry about DES.
Three months later, in February, 1980, Lynch saw a
television show which discussed DES-related health
problems, including abnormal skin growths, and which
referred people with questions to local health clinics. Lynch
recalled a polyp she had had removed in 1974 and called
the Pittsburgh free clinic. She spoke to a medical social
worker who told her that her ailments might be DES-
related and who advised her to have a colposcopy. Dr. Allen
told her the procedure was unnecessary. Nonetheless,
Lynch contacted a lawyer at this point to discuss the
possibility of litigation. She filed her action against the drug
companies in March, 1982. A subsequent colposcopy
revealed that Lynch had an undersized uterus and ovaries.
The trial court held that as a matter of law Lynch knew
or reasonably should have known by September or
November of 1979, more than two years before she filed her
claim, that she had a DES-related injury, and that therefore
her claim was barred. In so holding, the Court rejected
Lynch’s argument that she could not reasonably have
known about the connection between her condition and
DES until she saw the TV program and spoke to the social
worker. The Superior Court reversed, agreeing with Lynch
 29

and holding that while the plaintiff was obviously aware of
her condition prior to September, 1979, it was not clear
that it had been caused by DES. In coming to this
conclusion, the court relied on the fact that two physicians
had assured Lynch that DES was not involved, and that
“[u]nder these circumstances, the application of the statute
of limitations was for the jury.” Id. at 989. The Court
explained that “[i]t cannot be said as a matter of law that
Lynch’s acceptance of the opinions of two trusted
physicians was unreasonable. In the face of these expert
opinions, she could not be expected to know, or so a jury
could find, that her physical difficulties were related to the
DES . . . .” Id. at 990.
Defendants attempt to distinguish Burnside on its facts,
arguing that “the plaintiff in Burnside, unlike Jane Debiec,
was provided with neither a diagnosis nor any link between
her abnormalities and DES during the limitations period.”
This attempt fails because Lynch was apprised of the
potential link between DES and her condition by her
mother during the limitations period; moreover, Debiec did
not receive a diagnosis linking her condition to beryllium
during the limitations period.
We believe that Debiec’s situation more closely resembles
the facts of Burnside than those of Cochran. Like Lynch in
Burnside, Debiec’s personal physician told her there was
little or no reason to suspect that her condition was related
to exposure to beryllium, and, like Lynch, it was family
members who advised Debiec of the potential connection
between her ailments and the toxic compound at issue.
Indeed, it is safe to say that there was more public
information available about the link between DES and
Lynch’s symptoms than there was linking beryllium and
Debiec’s symptoms. The only fact that may significantly
distinguish Burnside from the case at bar is that Lynch
sought a second medical opinion and Debiec did not. We
are not, however, prepared to hold that reasonable diligence
requires a plaintiff who has received a definitive diagnosis
to seek a second opinion to determine the cause of her
injuries.
The District Court agreed with defendants’ analysis of the
events in this case and concluded that Mr. Debiec could
 30

not carry the burden of demonstrating that his lawsuit was
timely. In so concluding, the Court relied primarily on the
facts that Mr. Debiec and his brother suspected in the early
1990s that Mrs. Debiec’s condition was beryllium-related,
and that Mrs. Debiec knew about the emissions from the
Reading plant. We are not persuaded by this analysis. It is
clear that while at some point her husband and brother-in-
law suspected that her condition was beryllium-related,
Mrs. Debiec did not agree. Mr. Debiec testified that after the
1992 EPA meeting at which he discussed his belief that
exposure to beryllium had caused his wife’s condition, Mrs.
Debiec told him that he was “crazy” for pursuing the idea
that she may have had berylliosis. He also testified that his
own suspicions about the possible link to beryllium never
altered his wife’s belief that she had sarcoidosis: “. . . what
I suspected really didn’t matter. That was all me. I was on
a crusade. My wife believed she had sarcoidosis. She had
faith and trust in her doctor.” SA at 500. Mr. Debiec further
testified that his suspicions about berylliosis eventually
receded. In response to counsel for Cabot’s question “Did
you believe that her illness proved that breathing beryllium
oxide was hazardous?”, Mr. Debiec stated “I may have
suspected it lightly, but that was only in the beginning.
Later I did not. Once I talked to Dr. Shuman and he was
emphatic. Whatever I did I did on my own.” SA at 514-515.
For his part, it is clear that Dr. Shuman, a pulmonary
specialist, did not think that Mrs. Debiec had berylliosis. In
commenting on Mrs. Debiec’s 1980 biopsy, Shuman wrote
that “beryllium was tested . . . . Relevant to these other
problems, Jane mentioned that she had previously lived in
an area near Kawecki. As far as I am concerned at this
time, there seems to be little reason to alter her clinical
diagnosis of sarcoidosis.” Shuman observed that the results
of the biopsy, which revealed 6.5 micrograms of beryllium
per gram of dried tissue, “mean[ ] there was not very much
beryllium in the tissue. . . . Had there been a significant
amount of beryllium in the tissue, I think one would
certainly have to consider beryllium-induced lung disease.
The fact that there wasn’t any doesn’t—did not mean that
that wasn’t a possibility, but it simply wasn’t supportive of
that. My clinical impression was otherwise and there just
wasn’t a reason to change it.” SA at 525. Dr. Shuman
 31

continued to believe that Debiec was suffering from
sarcoidosis until her death, and he did not alter his
diagnosis until that point. SA at 525.
It is true that, because Mr. Debiec was concerned that
his wife’s condition might have been caused by exposure to
zirconium, Shuman informed Mrs. Debiec that “it may be
worthwhile” to see Dr. Israel about that possibility, despite
the fact that Shuman believed the “evidence for zirconium-
induced granulomas appears to be weak.” Mr. Debiec
explained that they never went to see Dr. Israel because
“Jane had confidence in Dr. Shuman. She had built up
trust, a relationship. When she would have a meeting, she
would come home and we would—I would say to her, how
did it go. And she would always tell me that Dr. Shuman
would give her a big hug when they left. And she wasn’t
about to go to see anyone else.” SA at 501-502.
On the basis of these facts, particularly the fact that Mrs.
Debiec had confidence in Dr. Shuman, who told her she did
not have berylliosis (she believed him) and who consistently
diagnosed her as suffering from sarcoidosis, we conclude
that reasonable minds could differ on the question whether
Debiec employed reasonable diligence in pursuing the
cause of her injury. Therefore, it was error for the District
Court to hold, as a matter of law, that the statute of
limitations had run on Debiec’s claim.

B. Russo
Defendants argue that the statute of limitations began to
run on Mary Russo’s claim by April 12, 1999, the date on
which Russo read a newspaper article linking the Reading
beryllium plant to incidence of lung disease. The District
Court agreed, holding that the fact that Russo had started
to clip newspaper articles on the link between lung disease
and the Reading plant meant that she suspected that her
illness was beryllium-related in early 1999 and that
therefore the statute of limitations had begun to run at that
point. Russo urges that the statute did not begin to run
until June 25, 1999, the day she received the results of her
BeLPT confirming that she had CBD. This suit was filed on
May 24, 2001.
 32

Defendants assert that the discovery rule cannot save
Russo’s claim because she was both aware that she had an
injury and had “made the link” between her injury and
beryllium. We do not agree, because whatever suspicions
Russo may have had on the basis of the articles in the
Eagle, neither of Russo’s physicians, certainly more credible
and persuasive sources of medical information than the
Eagle, endorsed her theories. Dr. Bell flatly stated that he
did not believe Russo’s condition was related to beryllium.
Russo testified that when she raised the issue with Bell, he
told her “[i]t’s so long ago, Mary. . . . it can’t be that . . .
’cause that is a long stretch.” SA at 74. Dr. Mengel, less
enthusiastically perhaps, endorsed this diagnosis. Indeed,
he did not alter his diagnosis until the results of the BeLPT,
which Russo herself requested, demonstrated that she was
suffering from CBD.
As discussed above, a definitive diagnosis is not required
to start the statute running. But this was not a situation in
which there was a preliminary diagnosis supporting the
possibility that Russo had CBD; rather, both her doctors
told her she did not have CBD. On the basis of these
negative diagnoses, we conclude that the District Court
erred in ruling that reasonable minds could not disagree
about whether Russo had pursued her claim with sufficient
diligence.

C. Reeser (Executrix of the Estate of Geneva Bare)
In granting summary judgment, the District Court noted
that by the mid-1990s Bare had asked one of her doctors
about the possibility that she had CBD, knew that she had
lung disease, knew about emissions from the nearby plant,
and “yet she took no further action.” App. at 18. Reeser
counters that it was not clear that Bare’s condition was
beryllium-related until an autopsy was performed after her
death on November 2, 2000. The suit was filed on June 6,
2001.
The facts here are certainly close. It is clear that Bare’s
doctors were discussing among themselves the possibility
that she had CBD, but Reeser stated that they never
shared their suspicions with Bare, testifying that “it was
 33

never related to her, because she would have related it right
away to us.” App. 113. The testimony of Bare’s daughter,
Mrs. Forry, is damaging to the case in that Forry stated
that at some point her mother had asked a doctor if
berylliosis was a possibility, a question that had been
prompted by an article Bare had read in the local paper.
Forry testified that the doctor had “put off ” this question
and told Bare that the test for berylliosis was unreliable,
but it does not appear that he ruled out the possibility.
This testimony hurts Reeser’s case because it suggests that
Bare knew about the possibility that she had CBD in the
mid-1990s and that she did not pursue this possibility by
getting the relevant tests. But Reeser counters that Forry’s
testimony was inconclusive as to when this incident
actually occurred. When pressed on whether this event
might have happened in the late rather than the mid-
1990s, Forry said “It could have. I just don’t remember. I
honestly don’t.” SA at 213.
Defendants’ argument rests on Forry’s testimony; absent
the conversation between Bare and her doctor, there is little
reason to think that Bare suspected that she had berylliosis
until directly before her death. If that conversation, which
may have triggered Bare’s duty to investigate the possibility
that she had berylliosis, occurred more than two years
before Reeser filed suit, then the suit may well be time-
barred. If it occurred within the two-year period, however,
the suit is permissible. Because Forry cannot remember
when the key conversation took place, reasonable minds
could differ about whether Bare pursued her claim with
reasonable diligence. Therefore that question is for a jury to
decide.
We add that, even if that conversation took place more
than two years before Reeser filed suit, there is still the
possibility that reasonable minds could differ on the
question whether Bare exercised due diligence in pursuing
her claim. In addition to telling Bare that “he really didn’t
think [the berylliosis issue] was important to her case,” the
doctor advised her that “the test wasn’t really accurate.” SA
at 199. On the basis of this conversation, a reasonable
person in Bare’s situation could easily have surmised that
further investigation of the possibility that she had
 34

berylliosis would be unavailing because the then current
testing methodology was inaccurate. This consideration too
will have to be explored by a finder of fact.

D. Branco
Plaintiff John Branco argues that he justifiably relied on
a negative result from a CBD test in deciding not to file
suit. We are, however, persuaded that Branco should have
suspected as early as 1995, and certainly by May 1997,
that he suffered from CBD, and that the tests which
followed, negative though they were, cannot support tolling
in light of the doctor’s warnings that the tests were
technically unsatisfactory and that Branco should undergo
further testing, and in the absence of assurance from his
physicians that he did not have a beryllium-related disease.
Branco worked at the defendants’ plant for thirty-three
years (1950 to 1983) and lived nearby most of his life. In
May 1995, Branco visited his doctor complaining of
shortness of breath upon walking up hills or steps. Supp.
App. at 1. One month later, he received a packet of
information from the Department of Health and Human
services, which included a letter informing Branco that it
had studied the possible link between beryllium exposure
and pulmonary diseases such as lung cancer and CBD. The
letter stated in part:
Chronic beryllium disease and lung cancer may
develop years after the last exposure to beryllium.
Thus, you and your doctor should be aware that you
might have an increased risk of developing these
diseases. . . . If you have lung or breathing problems
that don’t go away, see your doctor. Take the [enclosed]
fact sheet For Your Doctor with you.
Supp. App. at 42. In addition to the fact sheet containing
technical information for a patient’s physician, the mailing
also included a summary of the study’s findings, and a
document titled “Steps to Protect Your Health,” which
stated that “[t]he main symptoms of chronic beryllium
disease are shortness of breath while exercising or walking,
cough, fatigue, weight loss, or chest pain.” App. at 45. We
 35

conclude that these warnings were sufficient to put Branco
on notice that he was at risk of contracting CBD.
By May 1997, Branco’s shortness of breath had
progressed to the point that he was admitted to the
hospital. At that time he was advised he had mild
berylliosis. His May 30, 1997, discharge summary noted
Branco’s “[h]istory of mild berylliosis.” Supp. App. at 7.
Branco was readmitted several times over the next six
months, each time complaining of breathing problems, and
each time doctors noted his history of berylliosis. His
August 1997 discharge summary noted that “[t]he patient
is a 76-year-old male with a 35 year history of working at
American Beryllium,” and his final diagnosis included the
following: “[r]espiratory failure secondary to . . . [c]hronic
interstitial lung disease likely related to berylliosis.” Supp.
App. at 14. This diagnosis was repeated in an August 10,
1997, letter from one of Branco’s cardiologists to his
treating physician, which also stated that arrangements
were being made for Branco to undergo further testing at
the University of Pennsylvania “in order to perform the
needed specialized studies to diagnoses [sic] or rule out
beryllium-related fibrosis.” Supp. App. at 17.
On August 11, 1997, Dr. Joseph A. Mariglio, a
pulmonologist who had examined Branco after referral by
one of Branco’s cardiologists, noted that Branco “had
worked in the beryllium industry locally in Reading for 30
to 35 years,” that “[m]any of his friends who worked in
similar jobs were diagnosed as having berylliosis and have
either died or are on therapy,” and that he “lives in
Temple[,] an area that surrounds many of the beryllium
factories/plants in the Reading area.” Supp. App. at 20. Dr.
Mariglio noted his “impression” was Branco had
“progressive Interstitial Lung Disease with respiratory
failure most likely berylliosis . . . .” Supp. App. at 20.
On August 14, 1997, Branco canceled his scheduled
tests. Dr. Mariglio wrote to Branco on August 19th,
reiterating his belief that additional pulmonary testing was
necessary to develop a more specialized treatment regimen
of medication therapy, and warning additional delay would
result in further deterioration of his condition. Dr. Mariglio
wrote to Branco’s cardiologist on September 15, 1997,
 36

indicating that in an office visit that day Branco relented
and agreed to undergo the necessary beryllium testing. In
the same letter, Dr. Mariglio again stated that “[d]ue to his
previous exposure to berylliosis, the most likely culprit
initiating his Interstitial Lung disease remains beryllium
exposure.” Supp. App. at 23. d—d
These visits culminated in a September 1997 referral to
Dr. Milton Rossman, a pulmonary expert at the Hospital at
the University of Pennsylvania, at which time Branco
submitted to a blood lymphocyte proliferation test (BeLPT)
and a bronchoscopy with bronchoalveolar lavage. These
tests were negative for berylliosis—Rossman’s notes to Dr.
Mariglio, the referring doctor, stated that “there was no
significant proliferation of either his blood or lung cells to
beryllium sulfate or beryllium fluoride.” App. at 96.
Critically, however, Rossman cautioned that
the positive controls of the lung cells did not respond
to the mitogens, PHA and Con A, or to the recall
antigen, Candida, and therefore this is a technically
unsatisfactory study. Transbronchial biopsy showed
only mild chronic inflammation. Thus, these studies
cannot confirm evidence of chronic beryllium disease
being the cause of Mr. Branco’s interstitial lung
disease. Other causes must be considered such as
bronchiolitis obliterans or idiopathic pulmonary
fibrosis.
Id.
Branco asserts that these negative results were sufficient
to toll the statute of limitations, and notes that Dr. Mariglio
did not alter his diagnosis from idiopathic pulmonary
fibrosis to CBD until after Branco’s death.
We disagree. The information provided to Branco from
the test results was hardly a definitive negative diagnosis
for CBD. At most, those studies “[could not] confirm
evidence of chronic beryllium disease being the cause of
Mr. Branco’s intersititial lung disease.” This is not the same
as ruling out the defendants’ plant as the cause of the
injury. Indeed, the pulmonologist who conducted the tests
“recommended that Mr. Branco have a repeat
bronchoalveolar lavage to definitively rule out beryllium
 37

disease since the lung proliferative results were technically
unsatisfactory though negative.” Moreover, unlike the other
plaintiffs dealt with in this opinion, Branco was never
assured by his physician that he did not have a beryllium-
related disease (and indeed he was advised that he did).
Unfortunately, the testing was physically difficult for
Branco; he “had a febrile response after the lavage as he
was about to leave the hospital and, concomitant with this,
developed increasing hypoxemia.” App. at 97. Branco was
already very ill at this point and, in light of his negative
reaction to the initial tests, he understandably did not want
to endure a second round of tests which would make him
sicker still. Yet Branco’s poor health cannot justify
equitable tolling, the purpose of which is to safeguard
potential plaintiffs against causes of action they had no
means of discovering. Here, even after the testing, Branco
knew it was possible he had CBD, so if he considered
further testing infeasible, the proper recourse was to file
suit.
In sum, we think the June 1995 HHS warnings and the
May 1997 advice that he had berylliosis were sufficient to
put Branco on notice that he might have CBD, and to start
the running of the statute of limitations. We do not believe
that reasonable minds can differ on this point in the
absence of assurance from his physicians that he did not
have a beryllium-related disease.

IV. Conclusion
Because reasonable minds could disagree about whether
Jane Debiec, Mary Russo, and Shannon Reeser exercised
reasonable diligence in investigating their physical
conditions, this question, and therefore the issue of
whether the statutes of limitation have run in these cases,
is for the jury. The judgments of the District Court will
therefore be reversed as to these three plaintiffs, and their
cases will be remanded. The judgment regarding John
Branco will be affirmed.
 38

AMBRO, Circuit Judge, concurring in part and dissenting in
part:

I. Introduction
I agree with the majority that these appeals raise
important issues involving when a doctor’s statements
about (or even a diagnosis of) a plaintiff ’s illness in a latent
injury case toll the statute of limitations under the
discovery rule. According to well-settled precedent, the
statute of limitations begins to run as soon as a plaintiff
knows, or reasonably should know, that she has been
injured and that her injury has been caused by another
party’s conduct. Bohus v. Beloff, 950 F.2d 919, 924 (3d Cir.
1991) (citing Cathcart v. Keene Indus. Insulation, 471 A.2d
493, 500 (Pa. Super. Ct. 1984)). “The plaintiff need not
know the exact medical cause of the injury; that his injury
is due to another’s negligent conduct; or that he has a
cause of action.” Bohus, 950 F.2d at 924-25 (internal
citations omitted). Rather than actual knowledge, “[t]he
‘polestar’ is . . . ‘whether the knowledge was known, or
through the exercise of diligence, knowable to [the]
plaintiff.’ ” Bohus, 950 F.2d at 925 (quoting O’Brien v. Eli
Lilly & Co., 668 F.2d 704, 711 (3d Cir. 1981)). To that end,
“[e]very plaintiff has a duty to exercise ‘reasonable diligence’
in ascertaining the existence of the injury and its cause.”
Bohus, 950 F.2d at 925.
The Pennsylvania Supreme Court has defined “reasonable
diligence” as
a reasonable effort to discover the cause of an injury
under the facts and circumstance[s] 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.”
Cochran v. GAF Corporation, 666 A.2d 245, 249 (Pa. 1995)
(internal citations omitted). Reasonable diligence is an
objective standard. Id. A plaintiff “must exercise only the
level of diligence that a reasonable man would employ
under the facts and circumstances presented in a
particular case.” Id. “[A] diligent investigation may require
 39

one to seek further medical examination as well as
competent legal representation.” Id. (citations omitted).
While “whether a plaintiff has exercised reasonable
diligence is usually a jury question,” Bohus, 950 F.2d at
925 (citation omitted),
[t]here is indeed some point in time when a patient’s
own “common sense” should lead her to conclude that
it is no longer reasonable to rely on the assurances of
her doctor. In ascertaining this point in time, however,
we are mindful that “[t]o put upon [a patient] the duty
of knowing the nature of her ailment and its relation to
her prior treatment before it is ascertained with a
degree of certainty by the medical profession is a great
burden to impose upon her.”
Id. at 930 (internal citations omitted). More succinctly,
“ ‘reliance upon the word of one physician when the
patient’s own common sense should lead to a different
conclusion is unreasonable.’ ” Id. At 925 (quoting DeMartino
v. Albert Einstein Medical Center, 313 Pa. Super. 492, 506
(1983)).
These principles of Pennsylvania law, when applied to the
varied facts of these cases, lead to differing results. Despite
physicians’ statements pointing to or diagnoses of illnesses
other than chronic beryllium disease (“CBD”), many of the
plaintiffs still strongly suspected or had notice their
extended exposure to the defendants’ beryllium plant was
the source (or cause) of their various lung ailments. For
those plaintiffs, the time to sue began and they were
required within that time to exercise reasonable diligence to
discover the true cause of their health problems and to file
suit to protect their legal rights. The limitations clock
stopped if a doctor’s diagnosis or statements affirmatively
dissuaded due diligence from being exercised by a putative
plaintiff and that inaction did not run counter to common
sense.
Put another way, if a plaintiff had symptoms of lung
disease, and had reason to believe the defendants’
beryllium plant caused that injury — whether the
information was obtained from a doctor, medical study,
government letter, or possibly a media story — the statute
 40

of limitations began to run. Pennsylvania’s discovery rule
tolled the limitations period only if a physician definitively
informed a plaintiff that she did not have an illness caused
by beryllium (and, a fortiori, the defendants’ plant) and
common sense did not make her reliance unreasonable.
In this context, I join fully the majority’s opinion as to
John Branco, concur in the result reached as to Geneva
Bare and Mary Russo, and dissent as to Jane Debiec.
Although I would only decide one case differently than the
majority (Debiec), I believe the facts of another (Russo) are
closer than the majority acknowledges.

II. Application of Pennsylvania Law to Debiec Case
The majority examines Jane Debiec’s health history at
great length but, in doing so, disproportionately relies (in
my view) on the diagnosis of her treating physician, Dr.
John Shuman. The majority notes Dr. Shuman diagnosed
Mrs. Debiec with sarcoidosis in 1978, told her it was
unlikely the cause was beryllium, and maintained this
diagnosis until her death in April 2000. Although there is
no evidence that Mrs. Debiec made any further effort to
investigate what caused her sarcoidosis during the interim
two decades — despite her husband’s publicly expressed
belief during this time that it was caused by the defendants’
plant — the majority concludes reasonable minds could
differ as to whether Mrs. Debiec exercised reasonable
diligence in discovering the cause of her injury. I do not
agree.
As an initial matter, while Dr. Shuman did inform Mrs.
Debiec many years ago it was unlikely her illness was
caused by beryllium, the record does not indicate he
continued to assure her over the years that the defendants’
plant was not the source of her sarcoidosis. Dr. Shuman
recommended Mrs. Debiec undergo a lung biopsy in 1978
when she was experiencing respiratory difficulty during her
second pregnancy. In his deposition testimony, taken in
February 2002, Dr. Shuman stated that he ordered the
biopsy tissue tested for beryllium because he was aware
she was living near the defendants’ plant. The test revealed
beryllium in her lung tissue, but not in amounts significant
 41

enough to consider diagnosing Mrs. Debiec with beryllium-
induced lung disease, although Dr. Shuman stated he
could not rule it out as a possibility. Besides an unheeded
recommendation in 1980 to seek a second opinion whether
zirconium was the cause of Mrs. Debiec’s sarcoidosis (in
response to Mr. Debiec’s questioning on this point), there is
no evidence that Dr. Shuman at any time in the succeeding
twenty years again considered or discussed, much less
rejected, the possibility of a causal connection between the
defendants’ plant and Mrs. Debiec’s declining health. In
fact, Dr. Shuman testified he did not recall Mr. Debiec ever
directly asking him if his wife’s condition was caused by the
defendants’ plant, and was even surprised when he learned
at Mrs. Debiec’s funeral that Mr. Debiec suspected as much.1
But while Dr. Shuman may have had no reason to revisit
his initial diagnosis that Mrs. Debiec’s sarcoidosis was
unrelated to beryllium, she had ample facts to suspect her
illness was caused by exposure to the defendants’ plant. In
June 1990, John Debiec, Mr. Debiec’s brother, wrote a
research paper while at Pennsylvania State University titled
“The Environmental Impact of the NGK Metals Facility on
the Local Community.” The paper anonymously referred to
Mrs. Debiec’s case and mentioned that, because she lived
near the defendants’ beryllium plant, she may actually
suffer from CBD, not sarcoidosis, and hypothesized her
case indicated a relationship between sarcoidosis and CBD.
John Debiec also attached to the paper a copy of his sister-
in-law’s biopsy report with her name redacted. John Debiec
testified in his deposition that at the time he wrote the
report he suspected emissions from the defendants’ plant
caused Mrs. Debiec’s condition and that he shared his
belief with Mr. Debiec, but not Mrs. Debiec.
On July 22, 1992, the Environmental Protection Agency
(EPA) held a public meeting in Muhlenberg, Pennsylvania,

1. In response to a question about whether Mr. Debiec, or anyone else on
his behalf, ever asked Dr. Shuman if Mrs. Debiec’s condition was caused
by the defendants’ plant, Dr. Shuman replied: “I don’t recall anybody
asking me that. I subsequently became aware that he was thinking that
and that was at her funeral, which sort of caught me off guard. I didn’t
realize that he thought about it that strongly.”
 42

regarding health issues and the defendants’ plant. Jane,
Michael, and John Debiec all attended. The transcript of
the meeting indicates Michael Debiec (Mrs. Debiec’s
husband) asked the following:
Does the NGK Company have any — in this plan of
recovery and fixing, are they going to make any
restitution to people who probably have grieved [sic]
this since the 1950s and ‘60s and have been seriously
ill with some type of disease that’s caused by
beryllium, cadmium, or anything else?
Mr. Debiec also stated that
. . . I have been doing research on this for many years
because my wife is seriously ill with a disease called
sarcoidosis. And she lived in Temple. And I [have] done
research for ten years, and I found out through
different doctors that there’s only one known cause of
sarcoidosis and pulmonary interstitialitis. And that
comes from beryllium.
In October 1993, Mr. Debiec wrote a letter to the Agency
for Toxic Substances and Disease Registry (ATSDR),
apparently in response to his having reviewed a copy of its
draft report. His letter strongly criticized the ATSDR’s
investigatory effort to find a causal connection between the
defendants’ plant and the illnesses of local residents.
I hope this is the last letter I have to write to any
government agency concerning my wife’s illness and
the adverse effects of Beryllium plants across the
United States.
* * * * *
I’m appalled and shocked that your investigative team
could not come up with any other residents who are
suffering from Beryllium related illness or who may
have died as a result of Beryllium poisoning.
* * * * *
I’m tired of relating my wife’s case to prove breathing
Beryllium Oxide is extremely hazardous to one’s
health. She lived half a mile from the NGK plant on
[redacted] in Temple for half of her life. She breathed
 43

the air and played in the dry dirt. At the age of thirty-
four she has one-third breathing capacity compared to
a normal adult. A biopsy of her lungs shows that she
has Beryllium in her lungs. How much Beryllium dust
does it take for a person to lose two-thirds of their [sic]
breathing capacity?
* * * * *
In my opinion, the bottom line is this, if your team had
done an adequate investigative job, interviewing the
right people, the report should have stated that the
residents of Muhlenberg Township who live within a
radius of five miles from the NGK plant are getting ill,
have been getting ill and will continue to get ill. They
may not get a breathing disorder such as Sarcoidosis
or Berylliosis. Brain tumors and certain cancers have
become prevalent to some residents who live near the
plant.
The final ATSDR report on the Reading plant was
released in June 1995, and stated that “since CBD mimics
the symptoms of sarcoidosis and may readily be confused
with the latter disease, it is possible that additional,
undiagnosed cases of CBD, masquerading as sarcoidosis,
have occurred.” The report also recommended that “long-
term residents who have been diagnosed as having
sarcoidosis and who suspect that they may have been
exposed to clinically significant levels of beryllium in the
past may want to consider consulting an
occupational/environmental medicine specialist who can
determine whether specialized testing for beryllium
sensitivity is appropriate.”
The majority cites portions of this same evidence and
concludes it proves only that Mr. Debiec and his brother
suspected Mrs. Debiec’s condition was beryllium-related,
but she did not agree, and opted instead to rely on Dr.
Shuman’s diagnosis. But whether Mrs. Debiec agreed with
her husband is not relevant. “[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 would be successful.” Cochran, 666 A.2d at 249
(internal citation omitted). Layer upon layer of strong
 44

evidence compiled by Mr. Debiec and his brother, acquired
in part from Government sources, demanded Mrs. Debiec
exercise reasonable diligence to investigate further. A
“diligent investigation may require one to seek further
medical examination as well as competent legal
representation,” id., and Mrs. Debiec sought neither.
I agree with the majority that usually a claimant may rely
on the assurances of her doctor instead of the suspicions of
her spouse. But that is not what happened here. There is
no evidence that, in the twenty years after Dr. Shuman first
told Mrs. Debiec it was unlikely her sarcoidosis was caused
by beryllium, he ever reiterated this opinion in response to
an inquiry based on the growing body of evidence to the
contrary. While the discovery rule may have tolled the clock
initially, “that the statute of limitations is tolled does not
mean it is no longer applicable.” Bohus, 950 F.2d at 926.
The record overwhelmingly demonstrates that by the mid-
1990s Mr. Debiec believed (and Mrs. Debiec knew of this
belief), on the basis of his extensive information-gathering,
that his wife’s illness was beryllium-induced and was
caused by the defendants’ plant. Mrs. Debiec chose to
ignore this information and engaged in no further
investigation. It is possible she merely wanted to enjoy her
remaining years free from the burdens of a prolonged
search into the cause of her illness. This was her
prerogative, but reasonable diligence is an objective, not
subjective standard. See Cochran, 666 A.2d at 249.
Although Dr. Shuman never altered his original diagnosis,
in later years, when sources such as the ATSDR were
advising that CBD may masquerade as sarcoidosis, Mrs.
Debiec no longer could ignore that the defendants’
beryllium plant may have been the cause of her injury.
Indeed, even if we ignore all the warnings of her illness’
source prior to the ATSDR report, it alone triggered the two-
year limitations period in which to attend to her legal
rights.
The District Court concluded the facts are so clear in this
case that reasonable minds cannot differ on the question
whether Mrs. Debiec exercised reasonable diligence in
attempting to discover the cause of her injury. Mr. Debiec
filed suit on behalf of his wife on May 29, 2001, nearly
 45

eight years (under the most generous interpretation) after
she knew or should have known of the defendants’ alleged
involvement in causing her illness. Accordingly, I would
affirm the District Court’s ruling that this suit is time
barred.

III. Other Plaintiffs
I concur in the result reached by the majority in the case
of Geneva Bare, who died on November 2, 2000. Suit was
filed by her daughter and administratrix, Sharon Reeser, on
June 6, 2001. The District Court relied almost entirely on
the fact that Judith Forry, another of Bare’s daughters,
testified in her deposition that during a doctor visit in the
mid-1990s Bare, having read an article on the topic in the
local newspaper, asked whether her lung disease could be
due to beryllium exposure. But, as noted by the majority,
the District Court ignored related testimony by Forry that
she could not accurately recall the date of this
conversation, and allowed that it may have taken place in
the late 1990s. Accordingly, the disputed fact issue — the
date when Bare received notice that the defendants’ plant
may have been the cause of her injury — should be decided
by a jury.
I concur also in the result reached as to Mary Russo, but
I believe her case is closer than the majority acknowledges.
Contrary to the majority’s factual analysis, Mrs. Russo’s
doctors never definitively diagnosed her as not having CBD,
much less did they dispel her concern that the defendants’
plant was the cause of her injury. Dr. Bell diagnosed her
with idiopathic pulmonary fibrosis of an unknown nature,
and told her it was unlikely her illness was due to her
employment at the facility five decades ago. Dr. Mengel
confirmed this diagnosis. But there is no evidence any
doctor told Mrs. Russo her injury was not caused by her
many years of living and working near the defendants’
plant, as she evidently suspected. According to Mrs. Russo,
“I wasn’t happy with that” explanation. “It bothered me
because I heard people that didn’t even work there had
this. They didn’t even have to work at [the] plant.” Mrs.
Russo’s suspicion of nonoccupational CBD was derived
from information she received from her local newspaper.
 46

While her doctors may not have shared her concern, these
articles gave Mrs. Russo adequate information for her to
propose to them that she undergo a medical procedure that
in the end confirmed her suspicions were correct.
Ultimately, however, I do not believe the facts are so clear
that reasonable minds cannot differ as to when the
limitations period began. Although the March 29, 1999,
and April 12, 1999, newspaper articles provide some
persuasive evidence Mrs. Russo had notice of the cause of
her injury prior to May 29, 1999 — two years before she
filed suit — this is too slim a reed on which to rest entirely
a finding that her suit is time barred.
As noted above, I join fully the decision concerning John
Branco, and thus have nothing further to add.

IV. Conclusion
As noted by the majority, in this diversity action our task
is to look to Pennsylvania law and predict how the
Pennsylvania Supreme Court would decide the case. Bohus,
950 F.2d at 924. To that end, the Pennsylvania Supreme
Court has cautioned against adopting an approach that
“would dramatically expand the discovery rule and open the
flood gates to allow anyone with a good faith lack of
diligence to claim the benefit of the rule.” Cochran, 666
A.2d at 250. In this context, while I concur in varying
degrees with the determinations of the majority as to
plaintiffs Bare, Russo and Branco, I disagree as to Mrs.
Debiec. In her case, the majority assigns more importance
that would I to Dr. Shuman’s 1978 misdiagnosis and less
importance than would I to the myriad later events pointing
— strongly and clearly — to beryllium (and thus the
defendants) as the cause of her condition. The majority
holds it is a jury question whether the statute of limitations
is tolled until Mrs. Debiec received a positive diagnosis of
CBD, even if the prior non-CBD diagnosis did not prevent
her — by exercising minimal diligence amidst the wave of
information gathered by, inter alia, her husband — from
learning the cause of her injury. I do not believe this
departure from settled precedent would be endorsed by the
Pennsylvania Supreme Court, which “ha[s] not hesitated to
find as a matter of law that a party has not used
 47

reasonable diligence in ascertaining the cause of an
injury[,] thus barring the party from asserting [that] claim
under the discovery rule.” Id. at 248. Therefore, I
respectfully dissent with respect to the majority’s
determination as to Mrs. Debiec.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit