Steele v. Organon, Inc.

McInturff, J.

I dissent. An issue of material fact exists as to whether Mrs. Steele's later manifested injuries were distinct from, or merely a maturation of, her earlier injuries *237which are clearly time barred. If the later injuries are separate and distinct, then a separate and distinct cause of action accrued for them when Mrs. Steele discovered them.

The majority relies on the general rule that if a plaintiff is aware of some injury, the statute of limitation begins to run even if he does not know the full extent of his injuries. J. Dooley, Modern Tort Law § 34.80, at 528 (rev. ed. 1983); see also 51 Am. Jur. 2d Limitation of Actions § 135, at 704 (1970). However, a different rule has evolved in cases involving a latent injury or disease which is separate and distinct from an earlier manifested injury or disease. In several asbestos cases, the courts have rejected the argument that a plaintiff's cause of action for damages for an asbestos-caused latent cancer is barred by the statute of limitation because his claim accrued when he first knew or should have known he was suffering from any asbestos-related disease, in most instances, asbestosis. See Wilson v. Johns-Manuille Sales Corp., 684 F.2d 111, 120 (D.C. Cir. 1982); Fearson v. Johns-Manuille Sales Corp., 525 F. Supp. 671, 674 (D.D.C. 1981).

The court in Wilson, at page 119, noted that of the considerations served by statutes of limitation, the interest in repose of claims would be furthered by adopting a broad definition of cause of action. But,

in situations involving the risk of manifestation of a latent disease . . . the evidentiary consideration counsels narrower delineation of the dimensions of a claim. Key issues to be litigated in a latent disease case are the existence of the disease, its proximate cause, and the resultant damage. Evidence relating to these issues tends to develop, rather than disappear, as time passes.

The court also was influenced by its concern that the plaintiff receive fair compensation for serious harm, and its interest in deterring uneconomical anticipatory lawsuits. Wilson, at 120.

According to the Fearson court at page 674, plaintiff's affidavits made clear that the cancer and the earlier disease, asbestosis, were completely separate and distinct. It rea*238soned:

Under defendants' theory, plaintiffs would be forced to come into Court as soon as any minimal problem is diagnosed and seek speculative damages as to any other injuries that might develop in the future. Plain common sense teaches that the law was never meant to be so unreasonable.

The court then cited the following hypothetical:

The plaintiff's illustration of this point by way of a hypothetical clarifies this reasoning. Suppose an individual takes a drug which causes a skin rash which disappears in a few days and no legal action is brought because of the minimal harm caused. Years later, the individual discovers that he or she has cancer which resulted from use of the same product. Under the defendants' theory, the failure to sue for the skin rash would bar the suit for cancer. This exceeds the bounds of common sense as well as sound legal reasoning.

Fearson, at 674 n.4.

In another asbestos case, Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 662, 464 A.2d 1020, 1024 (1983), the court also noted the plaintiff's affidavit which presented expert medical testimony that there is no known link between the development of asbestosis and the development of lung cancer and that lung cancer is not a maturation of asbestosis. Hence, a plaintiff who seeks damages based on asbestosis is not permitted to put on proof concerning the degree of likelihood that cancer will ensue. Pierce, 464 A.2d at 1026-27. As a corollary, the plaintiff's action, if cancer develops, should not be barred by a statute of limitation commencing on discovery of asbestosis. Pierce.

In Place v. Ortho Pharmaceutical Corp., 595 F. Supp. 1009 (W.D. Pa. 1984), the court applied the analysis of Pierce in a product liability case arising out of the plaintiff's use of an intrauterine device (IUD). There, the plaintiff experienced flu-like symptoms in late 1977. A doctor's examination revealed that the IUD had punctured the wall of the vagina. The IUD was removed, and the plaintiff underwent surgery for the opening and draining of a tubo-*239varían abscess. Place, at 1011. She recovered from her symptoms, only to develop new symptoms 2 years later. The diagnosis for these symptoms included chronic hepatitis and chronic colocystitis. Place, at 1012. The court noted that the record was devoid of any evidence linking the two episodes to the same chain of causation. In holding the plaintiff had alleged separate and distinct causes of action and that suit on the second illness was not barred by the statute of limitation, the court reasoned:

While both diseases may be attributable to the same exposure, they are separate and distinct. There is nothing here to show that the second disease could be a reasonably certain consequence of the first such as to allow damages for future consequences in a timely suit for the first injury, or in the alternative to deny recovery on the second illness because of an award in a suit on the first illness.

Place, at 1012.

As in the occupational disease cases, Mrs. Steele's damages are attributed to exposure to a dangerous substance over a period of time. In her case, the exposure led to some immediately apparent problems and, allegedly, to some other problems which did not manifest themselves until much later. The material issue is whether Mrs. Steele's 1981-82 heart attack and stroke were distinct from or simply a maturation of the condition which resulted in loss of sensation in her arms and legs in 1973. Thus, Mrs. Steele should be given an opportunity to litigate this issue.

Secondly, nothing in the record links the 1981-82 problem with the symptoms she had in 1973. Since the defendants bear the burden of proving their affirmative defense, i.e., that the statute of limitation bars Mrs. Steele's action, this lack of evidence necessitates reversal of the Superior Court's summary judgment dismissing her claim.

Reconsideration denied April 25,1986.

Review denied by Supreme Court July 8, 1986.