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Reversing a Philadelphia Complex Litigation Center judge, a split panel of the Superior Court has ruled that two asbestos plaintiffs who roughly 20 years ago both sought damages for nonmalignant injuries and increased risks of cancer are not barred under the statute of limitations from bringing suits over lung cancers diagnosed relatively recently. In an apparent case of first impression, the majority concluded that the 1992 precedent that created Pennsylvania’s “two-disease rule” should be applied retroactively. Judge Norman C. Ackerman, whose term as coordinating judge of the CLC ended late last year, had reasoned that if Kenneth Abrams and John Shaw (now both deceased) had wanted to sue John Crane Inc. over their asbestos-related conditions, they should have done so in the mid-1980s, within two years of the date when they were first told they were experiencing asbestos-related lung problems and became aware that they might be at an increased risk for cancer. Both men had settled actions involving claims for increased risk and fear of developing cancer in the mid-1980s; at that time, neither had filed suit against John Crane Inc. But the majority in the consolidated cases Abrams v. Pneumo Abex Corp. and Shaw v. A.W. Chesterton Inc. ruled that under the Superior Court’s 1992 en banc holding in Marinari v. Asbestos Corp., “it is the diagnosis of lung cancer, even years after a diagnosis of nonmalignant asbestos disease, that triggers the running of the two-year statute of limitations in asbestos actions.” “The retroactive application of Marinari is here at issue since [Abrams' and Shaw's] prior actions, including ‘cancer-related’ claims, were brought before the 1992 Marinari decision,” Senior Judge Stephen J. McEwen Jr. continued. “Although neither this court nor the Pennsylvania Supreme Court has definitively determined whether Marinari should be applied retroactively, the clear implication in subsequent decisions of this court is that it should, and we here so hold.” McEwen was joined by Judge Joseph A. Hudock. In her dissent, Judge Mary Jane Bowes argued that at the time Abrams and Shaw first brought their asbestos suits, Marinari was not yet controlling, and it was generally understood that the statute of limitations for any and all asbestos-related claims would begin to run as soon as a plaintiff was diagnosed with an asbestos-related ailment. “The majority’s decision will enable plaintiffs who have already been compensated for increased risk and fear of cancer to institute new actions against different defendants based on recent diagnoses of cancer, thus forcing companies to litigate cancer claims that have already been addressed and resolved,” Bowes wrote. Steven Cooperstein of Brookman Rosenberg Brown & Sandler in Philadelphia, who represents the plaintiffs in both actions, said the decision was originally handed down via a March memorandum, which he successfully petitioned to have published. “I’d say that there are a fair number of asbestos plaintiffs who fit into [this] general fact pattern – with a nonmalignant disease before Marinari and a cancer diagnosis afterward – who may be subject to this kind of summary judgment motion.” William Adams of Dickie McCamey & Chilcote in Philadelphia defended John Crane in the matter. A call to his office seeking comment was not immediately returned. In March of last year, Ackerman had granted John Crane’s motions for summary judgments in Abrams and Shaw. (At the trial level, the matters were captioned Abrams v. John Crane Inc. and Shaw v. John Crane Inc.) But the Superior Court majority held that under Marinari, lung cancer constitutes a “separate and distinct” disease in the asbestos litigation arena. They noted that following the Superior Court’s 1993 opinion in Giffear v. Johns-Manville Corp., asbestos-related risk-of-cancer claims were abolished in Pennsylvania. Bowes homed in on that precedential development in her dissent. “The majority suggests that Giffear is instructive because the Giffear court remarked that the plaintiff in that case could bring a separate action if he was later diagnosed with cancer,” Bowes wrote. “In reaching this conclusion, however, the majority overlooks the fact that the plaintiff in Giffear, unlike Mr. Shaw and Mr. Abrams, was not compensated for cancer-based claims in a prior asbestos action.” (Copies of the 20-page opinion in Abrams v. Pneumo Abex Corp. and Shaw v. A.W. Chesterton Inc. , PICS No. 06-0802, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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