Giffear v. Johns-Manville Corp.

DEL SOLE, Judge,

concurring.

To the extent the Majority holds that a person cannot recover damages for “fear of cancer” and “risk of future cancer” in asbestos cases where cancer is not present, I agree. However, I cannot agree with the conclusion that asymptomatic pleural thickening is not an injury, and, therefore, does not give rise to a cause of action. I suggest that the Majority is confusing a cause of action with damages that can be recovered given a certain medical condition.

I disagree with the Majority’s conclusion for three reasons. First, it is not necessary to discuss this question in order to decide the issue before us, namely what damages are recoverable where pleural thickening exists but there is no cancer.

Second, the holding in Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992) creating a “two disease” rule inherently recognizes that asymptomatic pleural thickening is an injury which gives rise to a cause of action. Otherwise there would have been no need to create such a rule. As recently as July 15, 1993 this court, in two separate opinions, repeated the rule that asymptomatic pleural thickening is sufficient to give rise to a cause of action. Morrison v. Fibreboard, 329 Phil. 1992; Higginbotham v. Fibreboard, 328 Phil. 1992.

*347Third, the majority wrongly assumes that a person with asymptomatic pleural thickening has no damages. This may not necessarily be the case. For example, once one is diagnosed with pleural thickening, there may be medically necessary reasons for increased medical monitoring of the lungs to provide early detection of cancer. The costs of this monitoring would be recoverable. Also, in a particular case, an individual may be able to establish that this condition resulted in lost employment opportunities or decreased earning capacity. In these events the claim should be permitted to be made, and if damages are established, recovery allowed.

I suggest that it is better to limit our decision to the issue before us and allow the law of recoverable damages in pleural thickening cases to develop on a case by case basis.

FORD ELLIOTT, J., joins.