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Two asbestos plaintiffs who roughly 20 years ago both sought damages for nonmalignant injuries and increased risks of cancer are barred under the statute of limitations from bringing suits over cancers that were recently diagnosed, the coordinating judge of Philadelphia’s Complex Litigation Center has ruled. If Kenneth Abrams and John Shaw wanted to sue John Crane Inc. over their asbestos-related conditions, Judge Norman C. Ackerman wrote in separate but similarly worded opinions in Abrams v. John Crane Inc. and Shaw v. John Crane Inc., 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. “Defendant concludes that because plaintiff had actual knowledge of his asbestos-related condition on April 12, 1984,” Ackerman wrote in Abrams, “the applicable law at that time required the plaintiff to make a claim for any and all predictable later disease and/or injuries related to asbestos exposure within the applicable statute of limitations. Plaintiff’s claims are thus time barred by Pennsylvania’s two-year statute of limitations for personal injury claims.” According to Ackerman’s opinions, Abrams first filed suit in Philadelphia common pleas court in March 1986; Shaw did so in September 1985. Neither named John Crane as a defendant in their actions. Both claimed at the time they were suffering from respiratory problems, as well as from fear of an increased risk of cancer and other potentially fatal diseases. Within the past few years, both were diagnosed with lung cancer they claimed was asbestos-related. On the same day in March, Ackerman granted John Crane’s motions to dismiss the two actions for failure to comply with the statute of limitations. On appeal, both plaintiffs noted that suits against John Crane had been brought within two years of the men being diagnosed with lung cancer. The defense countered that both men had knowledge of their asbestos-related conditions beginning nearly two decades ago. According to the opinions, both plaintiffs, on appeal, relied mainly on two Superior Court decisions. In its 1992 holding in Marinari v. Asbestos Corp., the court ruled that an asbestos plaintiff who knew he had pleural thickening in 1983 could file a cancer claim four years later when he was diagnosed. In 1998, the court similarly concluded in McCauley v. Owens-Corning Fiberglass Co. that a plaintiff who fails to bring an action in conjunction with pleural thickening injuries still has the right to file suit over a separate condition even if two years or more has passed. But Ackerman distinguished those two decisions from Abrams and Shaw, noting that the former two did not involve plaintiffs who had already sought damages for fear and risk of cancer. “In the instant case, plaintiff had a prior action … seeking damages for cancer claims (increased risk and fear of contracting cancer),” Ackerman wrote in both opinions. “This plaintiff is barred from re-litigating any cancer claim. Accordingly, plaintiff’s reliance on the Marinari and McCauley cases is misplaced. In both Marinari and McCauley, the plaintiffs had never had a prior action seeking damages for an asbestos-related condition (only pleural thickening in those cases) and specifically never sought damages for fear and risk of cancer. The plaintiff in the instant case did not fail to bring a prior action implicating a malignant disease[.]“ The state Supreme Court’s 1997 decision in Cleveland v. Johns-Manville Corp., Ackerman pointed out, has been interpreted as allowing asbestos plaintiffs to recover damages for cancer when they had originally asserted noncancer claims. Representing the plaintiffs in both Abrams and Shaw were Laurence Brown and Steven Cooperstein of Brookman Rosenberg Brown & Sandler in Philadelphia. Cooperstein said his firm is handling the cases of several other plaintiffs where the fact scenarios are virtually identical to those in Abrams and Shaw. “I think that it’s the first time that I’m aware of that a court in Pennsylvania has addressed the issue of whether a plaintiff with a prior nonmalignancy case, who is diagnosed with cancer post- Marinari, can bring a cancer case under Marinari,” he said. John Crane’s attorney was William Adams of Dickie McCamey & Chilcote in Philadelphia. He did not immediately respond to a call seeking comment.

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