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Jarusewicz v. Johns-Manville Products Corp.

Decided: February 18, 1983.


Keefe, J.s.c.


The issues to be decided on this motion are: whether plaintiffs' amended complaint joining 16 additional defendants in this case violates the statute of limitations and, if so, whether plaintiffs correctly used the fictitious name practice permitted by R. 4:26-4 thereby avoiding application of the statute. For the reasons stated herein both questions are answered in the affirmative.

The 18 plaintiffs in this matter filed a complaint on September 19, 1980, alleging injuries resulting from exposure to asbestos products. Defendants named in that complaint were: "Johns-Manville Products Corporation; A.P. Green Refractories Co.; Metropolitan Refractories, Division of A.P. Green Refractories Co.; Quigley Co., subsidiary of Pfizer, Inc.; J.H. France Refractories Corp.; Eagle-Picher Industries, Inc.; Porter Hayden Co.; Madsen & Howell, Inc.; State Insulation Corp.; Insulation Materials Corp.; E & B Mill Supply Co.; Elizabeth Industrial, Division of Charles F. Guyon, Inc.; and John Does." (Emphasis supplied). In the first count of the complaint plaintiffs state that they were employed at Jersey Central Power & Light over a period of time from 1930 to the present, during which they "were required to and did work with asbestos, asbestos products and/or materials." Thereafter, and throughout the complaint plaintiffs alleged that defendants were "manufacturers, suppliers and/or distributors of the asbestos, asbestos products and/or materials" that they used in the course of their work. Plaintiffs' theory of recovery was expressed in terms of negligence, warranty, strict liability in tort and intentional misrepresentation of fact.

A third-party complaint was filed with leave of court by Johns-Manville on July 20, 1981. The third-party defendants named in that complaint were: Babcock & Wilcox; Forty Eight Insulation Co.; Combustion Engineering; Owens Corning Fiberglas Corp.; Owens Illinois Corp.; Celotex Corp., successor to Philip Carey Corp.; Atlas Turner Corp., successor to Atlas

Asbestos Co.; Southern Asbestos Corp.; Unarco Industries; Pittsburg Corning Corp.; Armstrong Cork & Seal Corp.; GAF Corp., successor in interest to Ruberoid; Nicolet Industries; Keene Corp., successor to Keene Building Products Corp.; Fiberboard Corp., and Garlock Corp. According to the certification of Johns-Manville's counsel filed in connection with the motion, the prospective third-party defendants were identified by various plaintiffs during the course of depositions which commenced about April 1981 and concluded shortly before the motion was made.

Plaintiffs' work histories at JCP & L spanned many years and in some cases several decades. Consequently, they testified that they could remember only some of the names of the products to which they were exposed. The identity of the third-party defendants was developed by the Johns-Manville attorney who used a "black book" containing photographs and product literature of various asbestos suppliers and manufacturers. Plaintiffs' recollections were "refreshed" as to product use and exposure when they were shown this literature for the first time.

By order dated August 12, 1981 plaintiffs were permitted to amend their complaint to add the 16 third-party defendants as direct defendants. The amended complaint was not filed until October 29, 1981.

Defendant GAF moved for summary judgment, contending that the plaintiffs' suit against it was barred by the statute of limitations. The remaining newly named defendants soon joined in the motion.

Interrogatories propounded by defendant Johns-Manville in the case asked each plaintiff to state the exact date upon which plaintiff became aware that his medical symptoms were caused by the alleged acts of Johns-Manville. In response to this question the earliest date given by any of the plaintiffs was September 21, 1978, and the latest date given was March 21, 1979. (Plaintiff Warren Rappleyea died on April 23, 1979. That date is, of course, critical with reference to the claim made for his wrongful death. N.J.S.A. 2A:31-1 et seq.)

In view of these facts the moving defendants argued that since they were not joined as third-party defendants within two years of March 21, 1979 as to the personal injury claims, or two years of April 23, 1979 as to the death claim, the claims are time-barred. McGlone v. Corbi, 59 N.J. 86 (1971). They further argued that plaintiffs' cause of action was not saved by the use of "John Does" in the caption of the complaint since the requirements of R. 4:26-4 were not followed.

In reply plaintiffs argued that the cause of action does not accrue as to personal injury claims until the identity of the defendant is made known to plaintiffs, or, in the alternative, that their cause of action was saved by the use of the "John Does" procedure. With respect to the latter issue plaintiffs' argument is succinctly stated in one of their several briefs as follows: "Although a more artful pleading would have specifically labeled the John Doe defendants as fictitious names of manufacturers, suppliers, distributors, etc., of asbestos and/or asbestos ...

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