PA Supreme Court Expands Application of Separate Disease Rule.

The Pennsylvania Supreme Court recently expanded the separate-disease rule in asbestos cases beyond the archetypal application that permits plaintiffs to prosecute one suit for non-malignant illnesses and one suit for malignant illnesses that may develop following the initial litigation. In the case of Daley v. A.W. Chesterton, et al, Herbert Daley and his wife filed suit in 2005 after he had contracted malignant pleural mesothelioma. However, Daley had previously sued for asbestos-related lung cancer in 1990. Consequently, the Philadelphia Court of Common Pleas granted summary judgment for the defendants in the 2005 case, noting that the separate-disease rule established by the 1992 Pennsylvania Supreme Court case of Marinari v. Asbestos Corp. did not allow for separate asbestos suits where each arises out of a distinct malignant illness. The Superior Court rejected the trial court’s interpretation of the separate-disease rule and vacated the order below because they considered the limitation reminiscent of the very dangers Marinari was designed to prevent.

On appeal, the Pennsylvania Supreme Court considered whether the Marinari separate-disease rule permits plaintiffs to bring separate lawsuits for more than one malignant disease allegedly caused by the same exposure to asbestos. In a 6-1 decision, Justice Debra Todd acknowledged that excerpts from cases decided after Marinari seem, in isolation, seem to advance an application of the “two-disease” rule espoused by the trial court. However, Justice Todd looked to the underlying rationale for the Marinari decision and read the rule as a wholesale repudiation of the then-existing “single action doctrine” that required plaintiffs to raise claims for all current and future damages they might develop as the result of exposure to asbestos. According to Justice Todd, the separate-disease rule was concerned with preventing “anticipatory lawsuits, protracted litigation, evidentiary hurdles, speculative damages, and excessive or inadequate compensation”— the same apprehensions that plague “situations where an asbestos plaintiff is diagnosed with a malignant disease, and later diagnosed with a separate and distinct malignant disease caused by the same asbestos exposure.” Thus, where denying the plaintiff relief for separate malignant illnesses creates the same unease that spawned the separate-disease rule in the first instance, the plaintiff may be afforded its benefit and given the opportunity to litigate them separately.   Good news for asbestos plaintiffs, but bad news for insurers.

Special thanks to Adam Gomez for his contributions to this post.  For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.