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A man who had ignored doctors’ suggestions that he undergo testing for a chronic lung disease had several opportunities to determine the cause of his illness before the statute of limitations on his toxic tort claim expired, a federal appeals court ruled last week. Daniel Vitalo is suffering from chronic beryllium disease allegedly caused by exposure to beryllium dust from an industrial plant near his home in Reading, Pa., according to the opinion. On Thursday, a three-judge panel denied Daniel and Diane Vitalo’s attempt to invoke the discovery rule to toll the statute of limitations in Vitalo v. Cabot Corp., in which the couple sued the plant’s operator and others for negligence and other claims. The statute of limitations begins to run when plaintiffs come to learn facts to put them on notice that a wrong was committed and they might be entitled to redress. The statute of limitations for a Pennsylvania personal injury action is two years. Sometimes an exception is made for plaintiffs who might be entitled to invoke the discovery rule — and thereby toll the statute of limitations — if they can prove they were unable to uncover the injury or its cause, despite their exercising “reasonable diligence.” The Vitalos’ lawyer told the 3rd U.S. Circuit Court of Appeals that Daniel had delayed the recommended testing for the toxin beryllium because a doctor said he had asbestosis, another disease of the lungs. The lawyer, Ruben Honik of Golom & Honik, urged the panel to apply the reasoning articulated in a two-year-old decision by the appeals court, Debiec v. Cabot Corp. Debiec held that the statute of limitations in a toxic tort case could be tolled where a doctor told the plaintiff the toxin had not caused her ailments — even though the plaintiff continued to harbor suspicions that it was to blame. The Debiec ruling revived three wrongful death lawsuits — but upheld the dismissal of a fourth — brought by Golom & Honik on behalf of the estates of people who lived near or worked in the Reading beryllium plant. The panel last week refused to apply Debiec, which the court noted involved “by happenstance” U.S. Circuit Judges Thomas L. Ambro and Edward Roy, two of the three panel members who reviewed Vitalo. “Vitalo argues that this misdiagnosis trumps his awareness of facts tending to put him on notice of the beryllium-related wrong committed against him,” Ambro wrote. His “effort to stretch our holding in Debiec to accommodate the facts of his case is unavailing. Quite simply, Vitalo was never told that he did not have beryllium-related lung disease.” Ambro noted that even the “definitive” diagnosis of Vitalo’s asbestosis — prepared by a doctor in aid of an asbestos-claim action — came with a recommendation that Vitalo seek additional testing, which he didn’t. By May 1999, Vitalo’s “clock” to check out his symptoms and determine the cause of his condition had begun to run, the appeals court concluded. By then, Vitalo had been diagnosed with asbestosis and heard from a series of sources and doctors that he should undergo further testing to determine if he had chronic beryllium disease. “By the time he filed — two years and seven months later — the limitation period had expired,” Ambro wrote. “In this context, we have no option but to conclude that by failing to seek additional medical testing after May 1999 at the latest, Vitalo failed to exercise reasonable diligence and thus cannot invoke the safe harbor provided by the discovery rule.” Vitalo even had four months left to sue within the statute of limitations after he was diagnosed with chronic beryllium disease in January 2001, Ambro observed. Honik said his clients are likely to ask the panel or the court en banc to reconsider the case. “We feel the Debiec discovery rule was not properly applied to the facts of this case,” Honik said. In 2001, the Vitalos sued, among others, NGK Metals Corp., the successor to Cabot Corp., which had formerly operated the plant. Vitalo alleged negligence, strict liability for abnormally dangerous activity, fraudulent concealment and civil conspiracy, among other claims. Diane Vitalo filed a derivative claim for loss of consortium, according to the opinion. The beryllium manufacturing plant in Reading is close to where the Vitalos live and where Vitalo, now in his mid-70s, worked for several months in 1959, according to the opinion. Beryllium is a toxic, lightweight but high-strength material with a variety of industrial uses. It can cause cancer and the lung-scarring condition known as chronic beryllium disease. Vitalo stopped working at the plant after four months because he experienced shortness of breath and chronic coughing. A plant doctor sent him home saying Vitalo had “beryllium poisoning,” according to the opinion. Vitalo spent the rest of his career working for a railroad company. Although physicians told Vitalo during doctor visits in the late 1990s that he had an occupational lung disease, Vitalo maintained that none of them said his condition was caused by beryllium, according to the opinion. Also, Vitalo told lawyers he did not remember receiving informational materials detailing the health problems associated with beryllium exposure from a federal government agency in 1995 and university researchers conducting a beryllium worker study in 1998, according to the opinion. Vitalo had a chest X-ray done in 1996 and 1998 after a plaintiffs law firm pursuing asbestos litigation contacted him and encouraged screenings. In 1996, the doctor who reviewed the chest X-ray recommended that Vitalo consult his doctor because the physician saw a shadow in his lung that might indicate disease. In December 1998, the doctor diagnosed asbestosis. It was not until December 2000 that Vitalo contacted the university researchers who had been urging him to undergo medical testing for beryllium-related lung disease. He was diagnosed with chronic beryllium disease in January 2001, and filed suit against the defendants 11 months later, according to the opinion. NGK Metals Corp. moved for summary judgment, arguing that the Vitalos’ claims were barred by the statute of limitations. A trial judge granted the motions, which the 3rd Circuit last week affirmed. “We need not here determine the precise time Vitalo gained awareness of sufficient critical facts to put him on notice of his potential claim,” Ambro wrote. “We conclude only that as a matter of law Vitalo was on notice by May 1999 at the latest that he was injured, it might be [chronic beryllium disease], and his injury was occupationally related.” James W. Gicking of Marshall Dennehey Warner Coleman & Goggin, counsel for NGK Metals Corp., declined to comment Tuesday.

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