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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 3rd U.S. Circuit Court of Appeals revived three wrongful-death lawsuits — but upheld the dismissal of a fourth suit — 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 J. 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 3rd 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. Beryllium is a lightweight, high-strength, tensile metal with a variety of industrial uses, and is also toxic, causing both cancer and a chronic scarring lung disease known as chronic beryllium disease, or CBD. 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. On appeal, the plaintiffs lawyers argued that the specific facts of each plaintiff’s case showed that Bartle’s rulings were too harsh and that a jury should decide whether the plaintiffs had exercised due diligence. Writing for the majority, Senior U.S. Circuit Judge Edward R. Becker found that the discovery rule often applies in so-called “latent disease” cases. In such cases, Becker said, the burden is on the plaintiff to show that she filed suit within two years of when she knew or reasonably should have known that she was injured and that the injury was caused by another party’s conduct. Under Pennsylvania law, Becker said, the clock 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.” Although the 3rd Circuit has held that the question of whether a plaintiff has exercised reasonable diligence is “usually a jury question,” Becker found that the Pennsylvania Supreme Court has held that “where the facts are so clear that reasonable minds cannot differ, the commencement period may be determined as a matter of law.” Becker found that the central dispute in the four beryllium cases was how to apply the law in a case where a doctor offered a diagnosis that excluded the toxin as a cause. “At some point doctors told each of the plaintiffs that it was unlikely they were suffering from CBD,” Becker noted. Plaintiffs lawyers cited the Pennsylvania Superior Court’s 1986 decision in Trieschock v. Owens Corning, which, they said, 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. But defense lawyers argued that Trieschock and its progeny are no longer good law, pointing to language in the Superior Court’s decisions in Ackler v. Raymark Industries Inc. in 1988 and Souders v. Atlantic Richfield Co., in 1990. Becker disagreed, finding that despite the criticism of Trieschock, the Superior Court has since followed the case. In any event, Becker found that the 3rd Circuit is bound by its own decision in Bohus v. Beloff, which held 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.” Becker said he agreed with the defense to the extent that they argued that a “definitive diagnosis” of CBD was not necessary to start the statute running. “Unrebutted suspicion that a claimant has a particular disease, which is an injury caused by another, is sufficient to start the clock,” Becker wrote. But a negative diagnosis changes the equation, Becker found. “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 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,” Becker wrote. Applying the law, Becker found that Bartle erred in dismissing the claims of three of the plaintiffs — Jane Debiec, Mary Russo and Shannon Reeser — but was correct in finding that plaintiff John Branco, who worked at the plant for three decades, had sufficient warnings that he was suffering from CBD long before he filed suit. Becker was joined by U.S. Circuit Judge Marjorie O. Rendell. In a partial dissent, Judge Thomas L. Ambro said he agreed with the court’s ruling as to three of the four — Bare, Russo and Branco — but that he disagreed with the decision to revive Debiec’s case. Ambro said he believed the majority assigned too much importance to a 1978 misdiagnosis and not enough importance to “the myriad later events pointing — strongly and clearly — to beryllium.” The majority, Ambro said, essentially held that it is a jury question whether the statute of limitations is tolled until 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 … her husband — from learning the cause of her injury.” Ambro said he believed that such a “departure from settled precedent” would not be endorsed by the Pennsylvania Supreme Court.

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