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Lapka v. Porter Hayden Co.

February 24, 2000

KAZIMIERZ LAPKA AND EMILIA LAPKA, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
PORTER HAYDEN COMPANY, FORMERLY KNOWN AS H.W. PORTER COMPANY AND REID HAYDEN, AND H.M. ROYAL CO., INC., DEFENDANTS-RESPONDENTS,
AND
THE MANVILLE CORPORATION ASBESTOS DISEASE COMPENSATION FUND (THE MANVILLE FUND), AS THE RESPONSIBLE DESIGNATED LEGAL ENTITY FOR THE LIABILITY OF CANADIAN JOHNS-MANVILLE AMIANTE LTD., FORMERLY CANADIAN JOHNS-MANVILLE ASBESTOS LTD.; JOHNS-MANVILLE SALES CORPORATION SUCCESSOR TO AND IN LIEU OF JOHNS-MANVILLE PRODUCTS CORPORATION; JOHNS-MANVILLE CANADA INC., FORMERLY KNOWN AS CANADIAN JOHNS-MANVILLE CO. LTD.; JOHNS- MANVILLE CORPORATION; UNION CARBIDE; WHITAKER, CLARK & DANIELS; JOHN DOE CORPORATIONS (A FICTITIOUS NAME REPRESENTING ONE OR MORE CORPORATIONS AND/OR COMPANIES ENGAGED IN THE BUSINESS OF MANUFACTURING, SUPPLYING AND DISTRIBUTING ASBESTOS CONTAINING PRODUCTS, FIBERS AND DUST); AND RICHARD ROE CORPORATIONS (A FICTITIOUS NAME REPRESENTING ONE OR MORE GENERAL CONTRACTORS AT THE PLAINTIFF'S PLACES OF EMPLOYMENT) AND JUDY DOE CORPORATIONS (A FICTITIOUS NAME REPRESENTING ONE OR MORE LEGAL ENTITIES WHO STAND IN THE SHOES OF JOHN DOE, RICHARD ROE EITHER AS SUCCESSOR IN INTEREST, ALTER EGO OR BY OTHER EQUITABLE DOCTRINE WHICH MAKES THEM RESPONSIBLE FOR THE JOHN DOE LIABILITY),
DEFENDANTS.



The opinion of the court was delivered by: Verniero, J.

Argued November 30, 1999

On certification to the Superior Court, Appellate Division.

Plaintiffs Kazimierz Lapka and his wife, Emilia Lapka, commenced this action by filing a complaint in the Law Division on March 24, 1988. (In this opinion, the singular plaintiff refers to Kazimierz Lapka.) The complaint alleges injury caused by occupational exposure to asbestos.

We are called on to determine whether the action is barred by the two-year statute of limitations found at N.J.S.A. 2A:14-2. That determination requires us to consider the applicability of the "discovery rule," an equitable principle that delays accrual of a cause of action "until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973).

The trial court and Appellate Division each held that plaintiffs' suit was time-barred. The courts concluded, based on medical records and plaintiff's earlier submission of a workers' compensation claim, that the cause of action accrued more than two years before the suit was filed. We agree and affirm.

I.

Plaintiff was employed by the Essex Chemical Corporation ("Essex Chemical" or the "company") in Sayreville from 1967 to 1984. He worked as a chemical operator and hot-melt operator. Those jobs required plaintiff to mix a liquid with pigment and asbestos powder in the manufacture of paneling glue. Plaintiff also assisted in the manufacture of other products, including urethane and paint. During the course of his employment, plaintiff was exposed to finished and unfinished asbestos products, dust, particles, fibers, and other hazardous substances.

Plaintiff was first diagnosed with a lung ailment as a result of a chest x-ray taken on February 13, 1981. The radiologist who examined the x-ray made this notation in the patient's record: "OPINION: Findings of pulmonary emphysema with mild diffuse fibrotic lung changes as well." We note that "[c]ontinuous breathing of asbestos-laden air will cause an eventual concentration of the particles in the lung tissue . . . [and]. . . the noxious effect of these rock particles causes the body to set up an inflammation until eventually fibrosis occurs." Sloane-Dorland Annotated Medical-Legal Dictionary 285 (1987).

About one week later, on February 21, 1981, plaintiff was admitted to Raritan Bay Medical Center complaining of shortness of breath. Another chest x-ray was taken on February 22, 1981 that showed, according to notations in the medical record, that plaintiff suffered from "pleural thickening" and "increased markings within the lungs" compatible with a "previous inflammatory disease."

Upon plaintiff's discharge from the hospital on March 1, 1981, his treating physician, Dr. Thaddeus A. Balinski, rendered a final diagnosis, noting in the patient's discharge papers: "pulmonary fibrosis and emphysema." Dr. Balinski also signed and submitted a physician's supplementary statement to plaintiff's insurance carrier. Consistent with Dr. Balinski's earlier diagnosis, the supplementary statement dated June 29, 1981, indicated a diagnosis of "emphysema."

Plaintiff went on disability leave in 1981. The loss prevention manager for Essex Chemical, Karl J. Trommler, Jr., expressed concern about returning plaintiff to the position of hot-melt operator in view of his diagnosed condition. In a letter dated July 7, 1981 to Dr. Balinski, Trommler described plaintiff's work environment and asked Dr. Balinski to "help me to decide what placement is in Mr. Lapka's best interest from a health standpoint." Trommler noted that as a hot-melt operator, plaintiff would add raw materials to the hot-melt reactor and thereupon be exposed to hot air, fumes, coal tar, various hyrocarbon groups, and trace impurities driven off during the heating process.

Dr. Balinski replied in a letter dated August 3, 1981, stating: "I believe that in the best health and interest of Kazimierz Lapka, he not be returned to his regular job but to another job that we discussed in a less toxic area." That belief was consistent with an earlier opinion expressed by the company physician, Dr. Francis X. Urbanski. Dr. Urbanski stated in a July 23, 1981 letter to Trommler: "The distinct possibility of future occupational inhalation exposure could possibly cause aggravation to his pulmonary status. Suitable occupational placement in the future must include a work environment that prevents any possibility of significant inhalation exposure."

Plaintiff returned to work in a new position, that of chief operator. That job required him to receive and record data concerning certain reactors at the company.

Plaintiff was again admitted to the Raritan Bay Medical Center on June 6, 1984. At the time he was experiencing shortness of breath, weight loss, and general weakness. At the medical center, he was again diagnosed with chronic obstructive pulmonary disease ("COPD"). An x-ray confirmed that diagnosis. On the patient's admitting form, Dr. Balinski noted that plaintiff "work[ed] in a chemical factory [and was] possibl[y] allerg[ic] to some chemicals and [would] feel[] [shortness of breath] while working."

Plaintiff signed a workers' compensation claim petition on January 14, 1986. The petition, a two-page form, is printed and made available by the Division of Workers' Compensation (the "Division") pursuant to N.J.S.A. 34:15-51. The form requires a petitioner to fill in specific information about a claim. The upper portion of the form states in pre- printed text:

Petitioner [plaintiff], alleging that the Petitioner sustained an injury by an accident arising out of and in the course of petitioner's employment with Respondent [Essex Chemical], compensable under R.S. 34:15-7 et seq., supplements and amendments, respectfully states:

In the space on the petition labeled DESCRIBE EXTENT AND CHARACTER OF INJURY, plaintiff filled in the following information: "PETITIONER SUSTAINED PULMONARY, AND INTERNAL ORGAN DISABILITY; AS WELL AS BINAURAL LOSS OF HEARING AND BILATERAL EYE DISABILITY." On that part of the form labeled DATE OF ACCIDENT OR DATES OF OCCUPATIONAL EXPOSURE, plaintiff stated: "1967 to June 5, 1984." In the space on the petition labeled WHERE, plaintiff stated: "Respondent's premises." In the space on the form labeled HOW, plaintiff stated: "PETITIONER EXPOSED TO ASBESTOS, NOISE AND CHEMICALS." In the space on the form labeled DATE INJURY REPORTED TO EMPLOYER AND TO WHOM, plaintiff stated: "Respondent had constructive notice."

An attorney from the law firm of Franz and Mintz notarized plaintiff's signature, which appears at the bottom portion of page two of the petition. Consistent with standard oath-taking language, the text immediately preceding the attorney's signature provides: "STATE OF NEW JERSEY/COUNTY OF MIDDLESEX: ss/Subscribed and sworn or affirmed to before me this 14th day of JANUARY, 1986."

Plaintiff filed the claim petition with the Division on February 13, 1986. Thereafter, plaintiff's attorneys requested that Dr. Malcolm H. Hermele examine plaintiff. The examination occurred on March 24, 1986. Dr. Hermele summarized his examination and conclusions in a letter to Franz and Mintz dated the same date. Dr. Hermele's letter states in part:

At your request, I examined Kazimierz Lapka in my office on March 24, 1986. He gave me the following history:

Mr. Lapka was employed by Essex Chemical Corp. from 1967 to May, 1984 as a chemical operator. He was exposed to dust, fumes, dirt, asbestos, carbon monoxide, chemicals used in plastic products, petroleum products, paints, powders, solvents, acetone and extremes in temperature . . . .

Mr. Lapka complains of coughing, bringing up phlegm, experiencing shortness of breath. Patient cannot climb one flight of stairs without shortness of breath and uses two pillows at night in order to be able to sleep and breathe properly. On getting up in the morning, patient has coughing fits which go on for quite a while and are productive of a whitish yellow phlegm. All the above complaints have been going on for more than 2 years . . . .

Conclusions: Based upon the history and the physical examination it is my opinion that Kazimierz Lapka has emphysema, restrictive pulmonary disease and small airways disease for which I would estimate a permanent disability of 65% of total. Based upon the history it is my opinion that the chest condition is causally related to or exacerbated by the exposure to the above pulmonary noxious agents while employed by Essex Chemical Corp.

As noted in the letter, Dr. Hermele reached his conclusions based upon a physical examination and the patient's history, which was given to him by plaintiff.

Plaintiff was again admitted to Raritan Bay Medical Center on November 2, 1996. The admitting attendant prepared plaintiff's personal history sheet, noting on the sheet: "stoped [sic] working in 1984 when he was diagnosed [with] asbestos." The form also indicates that the history so noted was given by "patient and patient's wife." Plaintiff's patient chart also includes this entry: "[a]ccording to patient and his wife, this pt [patient] has H/O [history of] emphysema & asbestosis & silicosis since `84." Another entry indicates that plaintiff "had h/o [history of] COPD for > 20 yr, c [with] asbestosis silicosis diagnosed about 12 years ago." Plaintiff died on November 3, 1996. The record does not reveal the cause of death.

Plaintiffs filed their complaint in the Law Division on March 24, 1988. It alleges that plaintiff contracted "chronic asbestos and/or pulmonary disease" and suffered other injuries during the course of his employment as a result of being "continuously exposed to both products containing finished and unfinished asbestos products, dust, particles and fibers." Plaintiffs later amended the complaint to include defendants Porter Hayden Company and H. M. Royal Co., the designated legal entities of certain manufacturers and suppliers of asbestos- containing products. Essex Chemical was named as a defendant in the original complaint for purposes of obtaining discovery only.

The trial court dismissed the complaint as untimely on November 24, 1997. (After the notice of appeal was filed in the Appellate Division, the Law Division judge vacated a previous order permitting the substitution of plaintiff Emilia Lapka as Executrix of the Estate of Kazimierz Lapka. The parties' briefs to this Court retained the earlier caption.) The Appellate Division affirmed in an unreported decision. The panel concluded that plaintiff knew his condition was asbestos- related "at least as of the date he signed and filed his workers' compensation petition in January 1986." The court also determined that, because the workers' compensation petition "unquestionably established plaintiff's knowledge of the essential facts," no evidentiary hearing was required as might otherwise be conducted in keeping with the procedures outlined in Lopez, supra, 62 N.J. 267. We granted plaintiffs' petition for certification, 158 N.J. 687 (1999).

II.

The statute of limitations governing this action is found at N.J.S.A. 2A:14-2, which states:

Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.

[Ibid.]

Applying discovery rule principles to this statute, we must ask: Did plaintiffs file suit within two years from the date they discovered, or by the exercise of reasonable diligence and intelligence ...


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