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Debiec v. Cabot Corp.

December 08, 2003

MICHAEL ANTHONY DEBIEC, ADMINISTRATOR OF THE ESTATE OF JANE LOUISE GULDIN DEBIEC, DECEASED
v.
CABOT CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO CABOT BERYLCO, INC., KAWECKI BERYLCO INC., A/K/A KBI KAWECKI BERYLCO INDUSTRIES, INC. & THE BERYLLIUM CORPORATION; NGK METALS CORP, INDIVIDUALLY AND AS SUCCESSOR TO THE BERYLLIUM CORPORATION, KAWECKI BERYLCO INC. A/K/A KBI, KAWECKI CHEMICAL CO., & BERYLCO, INC. MICHAEL ANTHONY DEBIEC, APPELLANT
SHARON J. REESER, ADMINISTRATRIX OF THE ESTATE OF GENEVA C. BARE, DECEASED
v.
CABOT CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO CABOT BERYLCO, INC. KAWECKI BERYLCO INC. A/K/A KBI KAWECKI BERYLCO INDUSTRIES, INC., THE BERYLLIUM CORPORATION; NGK METALS CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO THE BERYLLIUM CORPORATION, KAWECKI BERYLCO INC. A/K/A KBI, KAWECKI CHEMICAL CO. BERYLCO, INC. SHARON J. REESER, APPELLANT
DENNIS J. BRANCO, PERSONAL REPRESENTATION OF THE ESTATE OF JOHN C. BRANCO, DECEASED
v.
CABOT CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO CABOT BERYLCO, INC. KAWECKI BERYLCO INC. A/K/A KBI KAWECKI BERYLCO INDUSTRIES, INC., THE BERYLLIUM CORPORATION; NGK METALS CORP, INDIVIDUALLY AND AS SUCCESSOR TO THE BERYLLIUM CORPORATION, KAWECKI BERYLCO INC. A/K/A KBI, KAWECKI CHEMICAL CO. BERYLCO, INC; BRUSH WELLMAN INC. DENNIS J. BRANCO, APPELLANT
MARY I. RUSSO; CHARLES F. RUSSO, H/H,
v.
CABOT CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO CABOT BERYLCO, INC. KAWECKI BERYLCO INC.; A/K/A KBI KAWECKI BERYLCO INDUSTRIES, INC & THE BERYLLIUM COPORATION C/O C.T. CORPORATION SYSTEM; NGK METALS CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO THE BERYLLIUM CORPORATION, KAWECKI BERYLCO INC., A/K/A BERYLCO, INC. C/O C.T. CORPORATION SYSTEM MARY I. RUSSO; CHARLES F. RUSSO, H/H, APPELLANTS



On Appeal From the United States District Court For the Eastern District of Pennsylvania D.C. Civil Nos. 01-2613, 01-2614, 01-2775, 01-2776 District Judge: Honorable Harvey Bartle III

Before: Becker, Chief Judge,*fn1 Rendell and Ambro, Circuit Judges.

The opinion of the court was delivered by: Becker, Circuit Judge.

PRECEDENTIAL

Argued March 14, 2003

OPINION OF THE COURT

These personal injury and wrongful death cases, consolidated for discovery in the District Court and for disposition in this Court, stem from the deaths of four people, all of whom worked at and/or lived near the defendants' beryllium plant in Reading, Pennsylvania. Each of the deaths was traceable to Chronic Beryllium Disease ("CBD"), a result of exposure to that toxin, and the victims either brought or had brought on their behalf suits against the Cabot Corporation ("Cabot") and the NGK Metals Corporation ("NGK Metals").

Finding that Pennsylvania's two year statute of limitations had run on the plaintiffs' claims, the District Court granted summary judgment to the defendants and denied plaintiffs' motion for reconsideration. In so doing, the Court rejected plaintiffs' argument that the statute was tolled under the "discovery rule," which protects plaintiffs in circumstances in which, through no fault of their own, they do not discover their injury until after the statutory period would normally have ended. The plaintiffs argued that, as required by Pennsylvania law, they had each brought suit within two years of the date when they knew, or should have known, that their disease was berylliumrelated. The defendants asserted, however, that the point at which these plaintiffs could have determined that their conditions were traceable to beryllium exposure, had they diligently investigated that possibility, occurred more than two years before each filed suit.

Concurring with the defendants, the District Court concluded that no reasonable person could find that any of these plaintiffs had exercised the "due diligence" in investigating their physical conditions required in order to avail themselves of the protections of the discovery rule, and that therefore the question whether the statute had run, usually a question for the jury, need not go to one. We disagree as to plaintiffs Jane Debiec, Mary Russo, and Geneva Bare—based on the specific facts of each of these three cases, we conclude that reasonable minds could find that each of the decedents exercised due diligence in investigating her condition, and therefore the question whether the statute of limitations had run on their claims should have gone to a jury. The judgments of the District Court will be reversed as to Debiec, Russo, and Reeser, and their cases will be remanded for further proceedings. We conclude, however, that the fourth plaintiff, John Branco, failed to exercise due diligence, and we will therefore affirm the District Court's dismissal of his claim as time-barred.

I. Factual Background

Defendants Cabot and NGK Metals operate a beryllium manufacturing facility in Reading. They are successors to Kawecki Berylco Inc., which operated the facility for many decades. Beryllium is a lightweight, high strength, tensile metal with a variety of industrial uses. It is also a toxic substance that can cause both cancer and a chronic scarring lung disease — CBD. The decedents in these cases spent much of their lives working and/or residing in close proximity to the plant, and each contracted CBD. Because the specific facts of each plaintiff 's case are critical for determining whether the statute of limitations has run, we relate these facts in some detail.

A. Jane Debiec

Jane Debiec ("Debiec") died in April 2000 at the age of 57. Her autopsy showed that the cause of death of was CBD. Her husband, Michael Debiec, filed personal injury and wrongful death claims in May 2001. From 1943 to 1961, as a child and youth, Debiec lived a mile or less from the defendants' plant. She began to have respiratory symptoms during her first pregnancy in 1976 and the symptoms recurred during her second pregnancy in 1978. At that point Debiec sought the advice of Dr. John Shuman, who recommended a lung biopsy. The biopsy revealed "granulomatous lung disease with significant fibrosis" and also detected 6.5 micrograms of beryllium per gram of dried tissue. Shuman's conclusion on the basis of this test was that Debiec was suffering from sarcoidosis, a granulotomous lung disease of unknown cause or origin.

When asked about the significance of the 6.5 micrograms of beryllium per gram of dried tissue found in Debiec's biopsy, Shuman testified "[i]t means there was not very much beryllium in the tissue.... Had there been a significant amount of beryllium in the tissue, I think one would certainly have to consider beryllium-induced lung disease. The fact that there wasn't any doesn't—did not mean that that wasn't a possibility, but it simply wasn't supportive of that. My clinical impression was otherwise and there just wasn't a reason to change it." SA at 525.

In 1980, the Debiecs told Dr. Shuman that they believed her illness might be related to exposure to zirconium. The parties dispute the meaning of the notes Shuman took on the Debiecs' 1980 visits; Debiec suggests that the notes demonstrate that he and his wife were concerned only about zirconium at that time, while the defendants argue that the Debiecs were already considering litigation against the plant at that point and make much of the fact that Shuman recommended that they get a second opinion from one Dr. Israel, who was the "closest, most internationally known, expert on sarcoid." SA at 527. These notes are important, so we rescribe them at length:

August 26, 1980

Her husband came in with her and I told them I have not come across any useful information regarding zirconium or talked to anyone who seemed to know very much about it. Mr. Debiec came armed with two publications from the Federal Register, issued from the Department of Health Education and Welfare. He has a number of lines underlined, which in reading areas that are not outlined, has the proverbial effect of lifting things out of context. One of the areas not underlined, for example, was "regulatory action was being taken with respect to cosmetic products based upon the lack of toxological data adequate to establish a safe level for use.... I talked with Dr. Lane who determined that the entire biopsy block had been sent to Kemron Environmental Services for silica, asbestos, and beryllium exposure. Only beryllium was tested... because of the small sample. Relevant to these other problems, Jane mentioned that she had previously lived in an area near Kawecki. As far as I am concerned at this time, there seems to be little reason to alter her clinical diagnosis of sarcoidosis. Under the circumstances, I will encourage her to perhaps, see Dr. Israel.... The evidence for zirconium-induced granulomas appears to be weak, although I could not deny the possibility. It seems unlikely that anything definitive will be able to be shown here. While Jane states that there is [not] any thought of litigation involved, I am rather skeptical about that. It would not surprise me to receive a legalized complaint in the future about our failure to analyze the biopsy for zirconium.

August 29, 1980

I explained to her that her biopsy block was sent off for analysis for asbestos, silica, and beryllium, but [sic] was insufficient slides for all these tests. Following conversation with somebody, the beryllium study was done. Short of another biopsy, we cannot test for zirconium. She is more interested in having her symptoms treated than whether or not the problem was from zirconium since if it were so, the exposure doesn't exist anymore, and her treatment would not change and her symptoms would not behave differently if she knew that. Her husband, on the other hand, was somewhat disturbed at my answers... and, apparently did not feel he got a fair shake on his questions about zirconium. I, again, suggested to her that for peace of mind, it may be worthwhile, her seeing Dr. Israel to find out what he thinks about this possibility.

SA at 17-18.

We read these notes to mean several things. First, the Debiecs' (especially Mr. Debiec's) real concern in 1980 was zirconium, not beryllium. Second, Shuman was suggesting that Debiec see Dr. Israel about the possibility that zirconium, not beryllium, was causing her symptoms.*fn2

Third, the litigation Shuman was talking about was potential litigation against him and his group, not against the defendants in this case.

This last conclusion is arguably thrown into some doubt by Shuman's deposition, which included the following colloquy between Dr. Shuman and NGK Metal's attorney:

Q. And what litigation were you thinking about when you said that?

A. I mentioned in the same paragraph there, apparently, was some suspicion about where she had lived, that is, in the neighborhood of this Kawecki-Berylco at the time, so I guess that issue had arisen....

Q. Looking at the August 26th, 1980 note, I see down at the bottom of that, the last sentence of that note, it says, quote, it would not surprise me to receive a legalized complaint in the future about our failure to analyze a biopsy for zirconium, period, closed quote. When you — what are you talking about when you — in that sentence? What does that mean?

A. Mr. Debiec is very persistent and I thought he may — would probably — I thought he might take one of his questions and just, you know, push it to this extent.

Q. Meaning filing a complaint against you and the group?

A. I guess that's what I — well, I guess I'm not sure who it would be directed against.

SA at 528.

We conclude that despite Shuman's initial assertion during his deposition that his notes meant that the Debiecs were considering filing a lawsuit against the defendants in 1980, those notes were referring to litigation that might be brought against him and his group.

The defendants draw our attention to a number of other events and facts that they argue have significance. For example, they point out that while at Penn State in 1990, Mr. Debiec's brother John wrote a research paper which discussed the possibility of a link between sarcoidosis and beryllium exposure, and which relied on a discussion of Jane Debiec's case. John Debiec testified that when he wrote that paper, he believed that Mrs. Debiec's condition was caused by beryllium. The defendants also point to a letter from a Colonel George W. Ward of the Army Medical Department that was attached to the paper. The letter stated that "Sarcoidosis is a non specific chronic granulomatous tissue response. Therefore, it is likely that there are many causes which can produce such non specific tissue response. One known cause is beryllium.

Whether other elements such as zirconium and aluminum can also cause this is speculative at this point." SA at 118.

Defendants also point to a 1992 Environmental Protection Agency ("EPA") public meeting in (nearby) Muhlenberg, Pennsylvania regarding the Reading plant. Michael Debiec spoke at that meeting and stated that "... I have been doing research on this for many years because my wife is seriously ill with a disease called sarcoidosis. And she lived in [nearby] Temple. And I done research for ten years, and I found out through different doctors that there's only one known cause of Sarcoidosis and pulmonary interstitialitis. And that comes from Beryllium." SA at 201. Mr. Debiec testified that after the meeting his wife told him that he was "crazy" for pursuing the idea that she may have had berylliosis. In response to defense counsel's question "Did you believe that her illness proved that breathing beryllium oxide was hazardous?", Mr. Debiec testified "I may have suspected it lightly, but that was only in the beginning. Later I did not. Once I talked to Dr. Shuman and he was emphatic. Whatever I did I did on my own." SA at 514-515.

In October of 1993, Mr. Debiec wrote to the Agency for Toxic Substances and Disease Registry ("ATSDR") and professed disappointment at the agency's handling of its study of the Reading plant. He wrote:

I'm appalled and shocked that your investigative team could not come up with any other residents who are suffering from Beryllium related illnesses or who may have died as a result of Beryllium poisoning.... I'm tired of relating my wife's case to prove breathing beryllium oxide is extremely hazardous to one's health. She lived half a mile from the NGK plant on dry dirt. At the age of thirty-four she has one-third breathing capacity compared to a normal adult. A biopsy of her lungs shows that she has Beryllium in her lungs.... According to Dr. Lee Newman, an occupational medicine specialist at the National Jewish Center for Immunology and Respiratory Medicine, a very minute amount of Beryllium can cause the disease.

SA at 258-59.

The ATSDR's final report on the Reading plant was issued in June 1995. The report noted that some community residents were concerned that people "living in the Reading area may develop sarcoidosis from exposure to beryllium oxide." SA at 274. The report also observed that:

Diagnosed cases of both acute and chronic beryllium disease have been extremely rare in recent decades. As of 1983, no cases of occupational berylliosis had been reported among individuals first exposed after 1973. With only one exception, no cases of CBD have been reported from indirect or nonoccupational exposure among individuals whose exposure began after about 1950. However, since CBD mimics the symptoms of sarcoidosis and may readily be confused with the latter disease, it is possible that additional, undiagnosed cases of CBD, masquerading as sarcoidosis, have occurred.

SA at 295.

The report concluded that while concentrations of beryllium had at times exceeded recommended levels near the plant, there was little public health hazard. It cautioned, however, that:

if any adverse health effects occurred in response to higher off-site exposures in the past, they would probably be limited to CBD in a sensitive (i.e. immunologically predisposed) subpopulation living near the site. Since any past cases of nonoccupational CBD would likely have been misdiagnosed as sarcoidosis, long-term residents who have been exposed to clinically significant levels of beryllium in the past may want to consider consulting an occupational/environmental medicine specialist who can determine whether specialized testing for beryllium sensitivity is appropriate.

SA at 296.

Dr. Shuman did not alter his diagnosis of Debiec's condition, that she had sarcoidosis not CBD, during her lifetime. However, an April 2000 post-mortem diagnosis, made under the Case Registry of Chronic Beryllium Disease, determined that Debiec had been suffering from CBD. Mr. Debiec filed suit in May 2001.

B. Mary Russo

Plaintiffs Mary and Charles Russo filed their action on May 24, 2001, alleging that Mrs. Russo ("Russo") had been diagnosed with CBD on June 25, 1999. Russo died on February 5, 2002; her death certificate identified the causes of death as respiratory failure, pulmonary fibrosis, and CBD.

Russo had worked at the defendants' beryllium plant in an office job, not in the actual plant itself, for between 18 and 20 months spanning the years 1946-48. After a month on the job, she developed breathing troubles. Her family doctor ordered her to stay at home for a thirty day period while he tried to determine the source of her difficulties. She later returned to work at a different part of the complex. After leaving her job at the plant, Russo lived and worked within miles of the plant for half a century.

In 1993, a routine examination determined that Russo had "[c]hronic interstitial fibrotic appearing changes... in both upper lungs. These are not changed appreciably from old films. The lower lungs show some very mild chronic interstitial disease." SA at 3. In February 1998, Russo underwent an examination by pulmonologist Dr. Richard Bell, who was aware that Russo had worked at the beryllium plant in the 1940s. His diagnosis stated that "I feel that the patient has an idiopathic pulmonary fibrosis. I do not believe it is related to the beryllium employment." App. at 76. Two weeks later, Russo contacted Dr. Bell again to ask if her lung condition might be related to breast cancer that had manifested itself in 1995. Dr. Bell told her that this was improbable and restated his view that "it was highly unlikely that this was related to her beryllium exposure approximately five (5) decades prior." SA at 77.

Russo testified that she was dissatisfied with her visit to Dr. Bell, and that "when I mentioned that I worked at Beryllium, there was a question in my mind now, because in the local papers they were having all different kind of articles coming up telling us about people that worked at Beryllium and years later developing these symptoms." SA at 73-74. Russo went on to say that:

So, when I told Dr. Bell this, what I thought, he said to me, It's so long ago, Mary. He says it can't be that or something to that effect 'cause that is a long stretch. But I wasn't happy with that. It bothered me because I heard people that didn't even work there had this. They didn't even have to work at the plant.

SA at 74. During her recovery from knee surgery in April 1998, Russo's lung condition worsened. On April 10, she had a 30 to 40 minute coughing attack and was admitted to the hospital for a week. During this hospitalization, Russo began treatment with a new doctor in Bell's group— Dr. Mengel. However, Russo's lung condition worsened throughout 1998 and by November of that year she required portable oxygen. Dr. Mengel testified that when he discovered that Russo had worked at the beryllium plant, it "rais[ed] an alternative diagnosis to idiopathic pulmonary fibrosis" and he considered the possibility that Russo had CBD. SA at 133. He also testified, however, that he did not change the diagnosis at that point because he "didn't have any evidence yet." Id. Dr. Mengel recalled that he had wanted to have a lung biopsy done on Russo for diagnostic purposes, but that she was so ill he feared it would have killed her. SA at 136.

The defendants point out that Russo began to collect newspaper articles on CBD "at some point" after her February 1998 visit to Dr. Bell. The articles they refer to were from the March 29 and April 12, 1999 Reading Eagle. The defendants also stress the fact that Russo asked both Dr. Bell and Dr. Mengel about the possibility that she had gotten sick as a result of her proximity to the Reading plant. Russo argues that it was as a result of reading the newspaper articles that she requested a beryllium lymphocyte proliferation test ("BeLPT"), the results of which became available on June 25, 1999 and confirmed that she had CBD.*fn3 The idea to take the test was her own. None of her doctors raised the possibility that her condition was related to her employment at the beryllium plant some half century earlier. Dr. Mengel altered his diagnosis from idiopathic pulminary fibrosis to CBD only after the ...


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