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THIRD CIRCUIT RULES DIAGNOSIS TOLLS STATUTE PHILADELPHIA — In a toxic tort case, the statute of limitations may be tolled where the plaintiff’s doctor offered a definitive diagnosis that excluded the toxin as a cause of the plaintiff’s ailments, even if the plaintiff herself continued to harbor suspicions that it was to blame, a federal appeals court has ruled. In Debiec v. Cabot Corp., a divided three-judge panel of the Third Circuit U.S. Court of Appeals revived three wrongful-death suits — but upheld the dismissal of a fourth — brought by the estates of people who lived near or worked in a beryllium plant in Reading, Pa. The ruling is a victory for attorneys Ruben Honik and Joseph Urban of Golomb Honik & Langer, who argued that U.S. District Judge Harvey Bartle III erred when he dismissed all four cases on statute of limitations grounds. The Third Circuit majority concluded that for three of the four plaintiffs, a jury must decide the question of whether they exercised “due diligence” in investigating their conditions. As for the fourth plaintiff, the panel unanimously upheld Bartle’s decision to dismiss the case. According to court papers, Cabot Corp. and NGK Metals operate a beryllium manufacturing facility in Reading. They are successors to Kawecki Berylco Inc., which operated the facility for many decades. Separate lawsuits were filed by the estates of Jane Debiec, Mary Russo, Shannon Reeser and John Branco, each alleging that exposure to beryllium was the cause of a fatal case of CBD. Bartle dismissed all four suits on summary judgment, finding that Pennsylvania’s two-year statute of limitations had run on the claims. In so doing, Bartle rejected the plaintiffs’ argument that the statute was tolled under the “discovery rule” because, through no fault of their own, they had not discovered their injury until much later. — The Legal Intelligencer NEW YORK JUDGE SUES TO REMAIN ON BENCH STATEN ISLAND, N.Y. — Justice Frank Ponterio has sued the court system for $1 million in damages claiming he was denied an additional two years on the bench because in 1997 he had resisted the efforts of an appellate judge to have him moved from a part where he heard only divorce cases. Justice Ponterio was one of four justices denied certification for an additional two-year term in October by the Administrative Board of the Courts, which consists of Chief Judge Judith Kaye and the presiding justices of the four departments of the Appellate Division. In all, 50 New York Supreme Court justices had applied for certification, a procedure that allows justices 70 years and older to serve additional two-year terms until they turn 76. Justice Ponterio, who is 73, was approved for a two-year term in 2001, but this year when he sought his second out of a possible three two-year extensions, the board turned him down. In addition to damages, Ponterio is asking for an order requiring that he be certified for a two-year term starting Jan. 1, the date he is required to leave the bench. Office of Court Administration spokesman David Bookstaver declined to comment beyond stating that the Administrative Board made its decisions about certification “solely on merit and the need for judicial resources.” — The New York Law Journal

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