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Vitalo v. Cabot Corp.

March 3, 2005

DANIEL J. VITALO; DIANE E. VITALO, H/W, APPELLANTS
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, C/O C.T. CORPORATION SYSTEM, NGK METALS CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO THE BERYLLIUM CORPORATION, KAWECKI BERYLCO INC., A/K/A KBI, KAWECKI CHEMICAL CO., BERYLCO, INC., C/O C.T. CORPORATION SYSTEM, NGK INSULATORS, LTD., C/O C.T. CORPORATION SYSTEM, NGK NORTH AMERICA, C/O C.T. CORPORATION SYSTEM



Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil Action No. 01-cv-06759). District Judge: Honorable Harvey Bartle, III.

Before: Ambro, Becker and Greenberg, Circuit Judges

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

PRECEDENTIAL

Argued June 25, 2004

OPINION

This case requires us to revisit the question of when Pennsylvania's statute of limitations begins to run in a personal injury action alleging harm traceable to defendants' beryllium plant in Reading, Pennsylvania. Our Court examined four similar cases in Debiec v. Cabot Corporation, 352 F.3d 117 (3d Cir. 2003).*fn1 The law applied is well understood-the statute of limitations begins to run when a person knows, or through the exercise of reasonable diligence should know, s/he has been injured and someone else caused that injury. A complication arises when the injury caused is a disease that develops over time. In those cases, when should a plaintiff know s/he needs to investigate and bring potential claims? Answers are discerned under the so-called "discovery rule," the touchstone of which is reasonable diligence by the plaintiff. In this case we hold that the statute of limitations began to run when Plaintiff Daniel Vitalo ceased to exercise reasonable diligence in investigating his health problems, more than two years before he and his wife, Diane, brought suit. Thus their claims do not escape the bar of Pennsylvania's two-year limitations period.

I. Factual Background

Defendants Cabot Corporation and NGK Metals Corporation operate a beryllium manufacturing plant in Reading, Pennsylvania ("the Reading Plant"). Beryllium, with many industrial uses, unfortunately is a toxic substance that can cause both cancer and a lung disorder known as chronic beryllium disease ("CBD").

For his entire life Daniel Vitalo ("Vitalo" or "Daniel"), now in his mid-'70s, has lived within six miles of the Reading Plant. He suffers from CBD, resulting from exposure to respirable beryllium dust emanating from the Reading Plant.

For four months in 1959 Vitalo worked in the furnace room of the Reading Plant. This period of employment ended when he began experiencing respiratory troubles-shortness of breath and chronic coughing. According to Vitalo, he was sent home by the plant physician on the basis of the doctor's diagnosis that Vitalo was suffering from "beryllium poisoning," also known as berylliosis. Vitalo never returned to his job at the Reading Plant. For the next three decades, until his retirement in 1990, Vitalo worked for a railroad company-Reading Company (which later became part of Conrail).

By June of 1995 the United States Department of Health and Human Services ("HHS") had completed a workplace study of persons who worked in beryllium production plants, focusing on the increased risk of lung cancer created by workplace beryllium exposure. That month HHS sent Vitalo information about the completed study, including a letter that stated: "Before this study began, we knew that people exposed to beryllium may develop... acute and chronic... lung diseases caused by exposure to beryllium." The letter further stated that "[c]hronic beryllium disease and lung cancer may develop many years after the last exposure to beryllium. Thus, you and your doctor should be aware that you might have an increased risk of developing these diseases." The packet also contained a fact sheet describing the main symptoms of chronic beryllium disease, including "shortness of breath..., cough, fatigue, weight loss, or chest pains." HHS urged that should the recipient of the information packet develop these symptoms, s/he should seek medical attention and provide the enclosed fact sheet - entitled "For Your Doctor" - to her/his physician. HHS provided additional information along with the letter, including a fact sheet with the header "Steps to Protect Your Health." Vitalo testified at deposition that he did not remember receiving this packet from HHS.

In 1996 Vitalo developed a cough that led him to see his family physician, Dr. Ivan Bub. In December of that year, Dr. Bub ordered a chest x-ray that showed "[s]ome chronic obstructive pulmonary disease." Dr. Bub informed Vitalo of these findings and ordered a second x-ray, which was conducted on January 9, 1997. The radiology report of this second chest x-ray observes: "There is somewhat increased interstitial lung markings due to chronic process."

A week later, Vitalo received a letter from Moody, Strople & Kloeppel, Ltd., a Virginia law firm pursuing asbestos litigation on behalf of plaintiffs. The letter encouraged Vitalo to undergo a chest x-ray in order to screen him for asbestos-caused lung diseases that he might have contracted while working for the railroad. In response to this letter, Vitalo underwent yet another chest x-ray in June 1997. This x-ray was reviewed by Dr. Dominic Gaziano on behalf of the Moody firm. Dr. Gaziano concluded that "there is evidence of an occupational lung disease." He saw a "vague shadow" on Vitalo's upper right lobe that "may represent old scarring, an active disease process or possibly even a tumor." Dr. Gaziano recommended that Vitalo consult his treating physician as soon as possible to discuss the report.

Vitalo returned to Dr. Bub in early August 1997, presenting both Dr. Gaziano's report and the June 1997 x-ray films. During this consultation, Vitalo complained that he had been coughing up mucus for the past seven to ten days and explained that "he had worked around asbestos in the remote past, also around beryllium." According to Dr. Bub, he and Vitalo discussed the possibility that Vitalo was suffering from occupational lung disease. As a result of this consultation, Dr. Bub referred Vitalo to Dr. Joseph Mariglio, a pulmonary specialist.

Vitalo met with Dr. Mariglio shortly thereafter, noting his concern about the June 1997 x-ray and the possible lung mass it disclosed. At the time, Vitalo was asymptomatic. Dr. Mariglio performed several tests, including a CAT scan of the chest and a pulmonary function study. His notes recorded Vitalo's diagnosis with berylliosis when he worked at the Reading Plant in 1959. In a letter to Dr. Bub, Dr. Mariglio reported that, though he doubted Vitalo had a lung mass, he diagnosed him with "[p]robable occupational Lung Disease[,] i[.]e., berylliosis [;] doubt asbestosis."

Dr. Mariglio testified at his deposition that in September 1997 he discussed these conclusions with Vitalo, explained that Vitalo had "[o]ccupational-related lung disease," and informed Vitalo that "there was some scarring in the lungs" believed to be "industry-related." When Vitalo was questioned at his deposition about this conversation with Dr. Mariglio, the following exchange occurred:

Q: When [Dr. Mariglio] said you had some scarring in the lungs, and... he thought it was industry-related, did he ...


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