Debiec v. Cabot Corp.

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

12-9-2003

DeBiec v. Cabot Corp

Precedential or Non-Precedential: Precedential

Docket No. 02-2507

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation

"DeBiec v. Cabot Corp" (2003). 2003 Decisions. Paper 15.

http://digitalcommons.law.villanova.edu/thirdcircuit_2003/15

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

Filed December 8, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2507

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

No. 02-2508

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.

2

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

No. 02-2511

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

3

No. 02-2512

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

Argued March 14, 2003

Before: BECKER, Chief Judge,* RENDELL and

AMBRO, Circuit Judges.

(Filed: December 8, 2003)

* Judge Becker completed his term as Chief Judge on May 4, 2003.

4

RUBEN HONIK (Argued)

JOSEPH J. URBAN

Golomb & Honik P.C.

121 S. Broad St.

Philadelphia, PA. 19107

Attorney for Appellants

KAREN M. CONNORS (Argued)

Cabot Corporation

Two Seaport Lane, Suite 1300

Boston, MA 02210-2019

NEIL S. WITKES

Manko, Gold, Katcher & Fox, LLP

401 City Avenue, Suite 500

Bala Cynwyd, PA 19004

Attorneys for Appellee,

Cabot Corporation

JAMES W. GICKING (Argued)

Marshall, Dennehey, Warner,

Coleman & Goggin

1845 Walnut Street — 21st Fl.

Philadelphia, PA 19103-4717

Attorney for Appellee,

NGK Metals Corporation

OPINION OF THE COURT

BECKER, Circuit Judge.

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”).

5

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 beryllium-

related. 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

Shannon Reeser—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

6

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

7

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

8

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.1

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

1. The Debiecs never went to see Dr. Israel. When asked why, Michael

Debiec testified that “Jane had confidence in Dr. Shuman. She had built

up trust, a relationship. When she would have a meeting, she would

come home and we would — I would say to her, how did it go. And she

would always tell me that Dr. Shuman would give her a big hug when

they left. And she wasn’t about to go to see anyone else.” SA at 501-502.

9

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.

10

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.

11

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

12

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

13

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.2 The idea to take the test was her own. None of

2. The BeLPT is currently used in the diagnosis of beryllium sensitization

and CBD. It involves culturing cells from the blood or lung in the

presence or absence of beryllium and with a radioactive DNA precursor,

tritiated thymidine. App. at 68.

14

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 results

of the BeLPT came back positive. He testified that this new

diagnosis was based “primarily” on these results, and only

“secondarily” on the fact that Russo had worked in and

lived near the Reading plant. SA at 136, 138.

C. Shannon Reeser (Administratrix of the

Estate of Geneva Bare)

Sharon Reeser brought her personal injury and wrongful

death claims on June 6, 2001 as the administratrix of the

estate of her mother, Geneva Bare, who died in November

2000 of CBD. Bare lived within two blocks of the Reading

plant throughout most of her life. She began to experience

difficulty with her lungs in the early 1990s, at which point

she came under the care of a pulmonologist, Dr. Krol. One

of Bare’s daughters, Judith Forry, testified that she

accompanied her mother to a doctor’s appointment in the

mid or late 1990s (she was unsure of the date and if the

appointment was with Dr. Krol or with a Dr. Muvdi) and

that her mother asked if berylliosis was a possibility, but

that the doctor “really kind of put it off. He really didn’t

think it was important to her case. He said the test wasn’t

really accurate.” SA at 199. Forry testified that her mother’s

question had been prompted by an article on berylliosis in

the Reading Eagle, but that this was the first and only time

Bare raised the issue of berylliosis until shortly before she

died, when Bare was reminded of the possible link between

beryllium exposure and lung disease by hearing that a

neighbor had been diagnosed with CBD. SA at 200.

In their personal notes on her case, Bare’s physicians

raised the possibility that she had berylliosis. In 1996, for

example, Dr. Krol wrote a letter to another of Bare’s

physicians stating that she:

certainly has progressive interstitial lung disease and

had significant interstitial lung disease as far back as

1977. . . . I don’t know the cause of her interstitial

disease. It certainly could be a form of idiopathic

15

pulmonary fibrosis, berylliosis, sarcoidosis, even

bronchiectasis. . . .

SA at 5. In an earlier letter regarding Bare, Dr. Krol had

noted her “exposures at the beryllium plant,” SA at 3, and

in his January 1997 record of Bare’s condition, he wrote

that she had “[s]table pulmonary fibrosis since 1977” and

that “[i]t has been slowly progressive[,] question of

berylliosis.” SA at 8. In July 1997, Dr. Krol again noted that

Bare suffered from “Interstitial lung disease, possible

berylliosis.” SA at 8.

In response to an inquiry about the “question of

berylliosis” language in Dr. Krol’s January notes, Judith

Forry testified that “Dr. Krol never recommended it could be

[berylliosis]. That would be my mother’s guess. . . . That

would probably be my mother questioning him.” SA at 208.

A Dr. Stelmach also took notes on Bare’s condition, in

February 1999, and stated that she had a “longstanding

history of interstitial lung disease and pulmonary fibrosis of

undetermined etiology, although there is a very weak

suggestion it is related to beryllium exposure, in that she

lived in the area of the beryllium factory.” App. at 108.

While it is clear that Bare’s physicians thought berylliosis

might be a possibility, Reeser testified that they never

shared this with Bare herself. When asked if Dr. Krol or

any other doctor had informed Bare of the possibility that

her condition might be linked to her exposure to beryllium,

she responded “my goodness, no.” App. 110-111. Reeser

asserts that she herself first became aware of the potential

connection between her mother’s illness and beryllium

exposure in 2000, when one of her neighbors was

diagnosed with CBD. App. 114-115. The presence of CBD

was first confirmed during Bare’s autopsy.

D. John Branco

John Branco (“Branco”) worked at the Reading plant for

33 years and lived within a mile of the plant for most of his

life. He died of lung fibrosis due to CBD in June of 1999.

In 1995, Branco began to have difficulty with his

breathing, incident to exertion. In June of that year, he

16

received a letter from the Department of Health and Human

Services (“HHS”), apprising him of a study the Department

had conducted on the health of workers exposed to

beryllium. The letter stated that:

Before this study began, we knew that people exposed

to beryllium may develop two forms of beryllium

disease, acute and chronic. These are lung diseases

caused by exposure to beryllium. . . . Our study,

however focused on lung cancer. Some studies had

linked lung cancer to beryllium exposure. However,

this link was uncertain. . . . We found an increased

risk of lung cancer in workers exposed to beryllium at

all plants combined. . . . Chronic 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. . . . If you have lung or

breathing problems that don’t go away, see your

doctor.

SA at 40-42. (Emphasis in original).

In February 1997, Branco received a chest x-ray, which

revealed the presence of interstitial lung disease, the

“etiology of ” which was “uncertain.” SA at 3. In May of

1997, Branco had cardiac bypass surgery. During his

recovery, one of his cardiologists, Dr. Feater, noted that

Branco “has had a chronic history of shortness of breath

secondary to his berylliosis.” SA at 10. In early August

1997, a second cardiologist, Dr. Politzer, wrote to Branco’s

personal physician advising him of Branco’s condition, and

stated that “the patient was felt to have respiratory failure

secondary to chronic interstitial fibrosis which is most

likely secondary to berylliosis, given the patient’s thirty-five

year work history with American Beryllium.” SA at 17.

Branco was referred to a pulmonologist, Dr. Mariglio, in

August 1997. At this point, both Branco and Dr. Mariglio

were suspicious about a potential link between Branco’s

condition and his exposure to beryllium. As a result, Dr.

Mariglio referred Branco to Dr. Rossman, a berylliosis

expert at the Hospital of the University of Pennsylvania.

In his letter to the University of Pennsylvania doctors, Dr.

Mariglio wrote that his “Impression” was that Branco had

17

“progressive Interstitial Lung Disease with respiratory

failure most likely berylliosis, rule out other forms

Interstitial Lung Disease.” On September 15, 1997, Dr.

Mariglio wrote to Branco’s personal physician that “due to

his previous exposure to berylliosis, the most likely culprit

initiating his Interstitial Lung Disease remains beryllium

exposure.” Dr. Rossman took x-rays and performed a

BeLPT and a bronchoscopy with bronchoalveolar lavage

(“BAL”). Neither the BeLPT, nor the BAL showed any

evidence of response to beryllium. In his letter to Dr.

Mariglio about these tests, Dr. Rossman wrote:

As you can see from the enclosed results, there was no

significant proliferation of either his blood or lung cells

to beryllium sulfate or beryllium fluoride. Of note, the

positive controls of the lung cells did not respond to

the mitogens, PHA and Con A, or to the recall antigen,

Candida, and therefore this is a technically

unsatisfactory study. Transbronchial biopsy showed

only mild chronic inflammation. Thus, these studies

cannot confirm evidence of chronic beryllium disease

being the cause of Mr. Branco’s interstitial lung

disease. Other causes must be considered such as

bronchiolitis obliterans or idiopathic pulmonary

fibrosis. It is recommended that Mr. Branco have a

repeat bronchoalveolar lavage to definitively rule out

beryllium disease since the lung proliferative results

were technically unsatisfactory though negative.

App. at 96-97. Upon receipt of this letter, Dr. Mariglio

called Branco and told him that “[h]is lymphocyte

proliferation studies were negative for evidence of beryllium

related disease” and that “[w]e will treat [you] as IPF.” App.

at 104. The testing process was physically debilitating for

Branco, causing “deterioration . . . such that [ ] he

developed increasing hypoxemia and required an overnight

admission to the Hospital of the University of

Pennsylvania.” App. at 105. Already quite ill at that point,

Branco made it clear that he did not want to undergo

another round of tests with Dr. Rossman. App. at 105.

As a result of Branco’s visit to Dr. Rossman, the Branco

family’s fear that his condition was beryllium-related

evaporated. When asked whether Rossman’s examination

18

had an effect on his thinking, Dennis Branco, the

decedent’s son, testified “Oh, yes. I didn’t think he had

berylliosis then.” App. at 93-94.

II. Legal Standard

A.

We confront the question whether, given each plaintiff ’s

specific history, the District Court properly found that their

causes of action were barred by the statute of limitations.3

Because “state tolling principles are generally to be used by

a federal court when it is applying a state limitations

period,” Vernau v. Vic’s Market, Inc., 896 F.2d 43, 45 (3d

Cir. 1990), in this diversity action we look to Pennsylvania

law and predict how the Pennsylvania Supreme Court

would decide this case. See Bohus v. Beloff, 950 F.2d 919,

924 (3d Cir. 1991).

Pennsylvania has a two year statute of limitations for

personal injury and wrongful death actions. 42 Pa. Cons.

Stat. § 5524(2). The question before us is, at what point did

the plaintiffs’ claims accrue? Generally, a claim accrues “as

soon as the right to institute and maintain a suit arises,”

Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d

468, 471 (Pa. 1983), which, in most tort actions, is at the

moment the injury is sustained. In order to “ ‘ameliorate the

sometimes harsh effects’ of the statute of limitations,”

however, Pennsylvania courts have crafted an exception to

this rule for situations in which a party, through no fault

of his or her own, does not discover her injury until after

the statute of limitations normally would have run. Bohus,

3. We exercise plenary review over a district court’s grant of summary

judgment and apply the same standard as the district court; i.e.,

whether there are any genuine issues of material fact such that a

reasonable jury could return a verdict for the plaintiffs. Fed. R. Civ. P.

56(c). McNulty v. Citadel Broadcasting Co., 58 Fed. Appx. 556 (3d Cir.

2003). We are required to “view the record and draw inferences in a light

most favorable to the non-moving party.” In re IKON Office Solutions, Inc.,

277 F.3d 658, 666 (3d Cir. 2002). The District Court had jurisdiction

over these cases pursuant to 28 U.S.C. § 1332. This Court has appellate

jurisdiction pursuant to 28 U.S.C. § 1291.

19

950 F.2d at 924 (quoting Cathcart v. Keene Indus.

Insulation, 471 A.2d 493, 500 (Pa. Super. Ct. 1984)). Latent

disease cases often implicate this so-called “discovery rule,”

which tolls the statute. In this type of case, “the statute of

limitations begins to run . . . when the plaintiff knows, or

reasonably should know: (1) that he has been injured, and

(2) that his injury has been caused by another party’s

conduct.” Cathcart, 471 A.2d at 500. The burden is on the

party claiming the benefit of the discovery rule to prove that

she falls within it. Dalrymple v. Brown, 701 A.2d 164, 167

(Pa. 1997); Cochran v. GAF Corp., 666 A.2d 245, 249 (Pa.

1995).

In order to take advantage of the discovery rule, a

plaintiff must have exercised “due diligence” in investigating

her physical condition. Bohus, 950 F.2d at 924. We have

explained that “[t]he ‘polestar’ of the discovery rule is not

the plaintiff ’s actual knowledge, but rather ‘whether the

knowledge was known, or through the exercise of diligence,

knowable to [the] plaintiff.’ ” Id. at 925 (quoting O’Brien v.

Eli Lilly & Co., 668 F.2d 704, 711 (3d Cir. 1981). The

Pennsylvania Supreme Court has described the required

diligence in this setting as follows:

Reasonable diligence is just that, a reasonable effort to

discover the cause of an injury under the facts and

circumstances present in the case. Long ago we

recognized that there are few facts which diligence

cannot discover, but there must be some reason to

awaken inquiry and direct diligence in the channel in

which it would be successful. This is what is meant by

reasonable diligence.

Cochran, 666 A.2d at 249 (quotation marks omitted). The

Court stressed that:

[r]easonable diligence is an objective, rather than a

subjective standard. Under this standard, the

plaintiff ’s actions must be evaluated to determine

whether he exhibited those qualities of attention,

knowledge, intelligence and judgment which society

requires of its members for the protection of their own

interests and the interests of others.

Id. (quotation marks omitted).

20

In sum, the statutory time period begins to run in latent

disease cases at the moment at which the plaintiffs

possessed “sufficient critical facts to put [them] on notice

that a wrong has been committed and that [they] need

investigate to determine whether [they were] entitled to

redress.” Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.

1985).

In Bohus, we held that “[t]he question whether a plaintiff

has exercised reasonable diligence is usually a jury

question.” 950 F.2d at 925. The Pennsylvania Supreme

Court has cautioned, however, that while this question is

“usually for the jury, . . . . [w]e also recognize the well

established principle that where the facts are so clear that

reasonable minds cannot differ, the commencement period

may be determined as a matter of law.” Cochran, 666 A.2d

at 248.

B.

While the parties agree on these basic legal standards,

they disagree about how to apply them in this case and,

more specifically, about how to measure the impact of a

professional medical diagnosis on a court’s evaluation of

whether a plaintiff has exercised reasonable diligence in

investigating her condition. This is an important issue here,

because at some point doctors told each of the plaintiffs

that it was unlikely they were suffering from CBD.

In support of their argument that the plaintiffs exercised

reasonable diligence in these cases, Debiec et al. rely on a

line of Pennsylvania cases, starting with Trieschock v.

Owens Corning, 511 A.2d 863 (Pa. Super. Ct. 1986), that

stands for the proposition that in determining when the

statute of limitations begins to run, a plaintiff cannot be

charged with having more information than his doctors

have about his condition. The defendants counter that

Trieschock and its progeny are no longer good law.

Trieschock involved a diagnosis of asbestosis. After a

screening of employee medical results in March 1982, an

Owens-Corning doctor informed Trieschock that he

suspected he had asbestosis and that he had scheduled an

appointment for him to see a pulmonary specialist.

21

Trieschock saw the specialist on April 8, 1982 and was

definitively diagnosed with asbestosis. He brought suit

against Owens-Corning on April 6, 1984. Owens-Corning

argued that the statute of limitations had started to run in

March 1982 when the company doctor told Trieschock of

his suspicions, not in April when Trieschock received the

definitive diagnosis. The Court disagreed, holding that:

A plaintiff in a creeping disease case should not be

required to have greater knowledge than his physicians

about his medical condition. If those physicians are not

reasonably certain about his diagnosis, then he

certainly cannot be bound to have the knowledge

necessary to start the statute of limitations running.

Id. at 866. While the initial conversation with the Owens-

Corning doctor did not therefore start the statute running,

the Court held that it “activated a duty on appellant’s part

to determine, with due diligence, whether he did, in fact,

have that disease.” Id.4

The defendants protest that Trieschock is no longer good

law and point to language in Ackler v. Raymark Industries,

Inc., 551 A.2d 291 (Pa. Super. Ct. 1988), and Souders v.

Atlantic Richfield Co., 746 F. Supp. 570 (E.D. Pa. 1990),

criticizing Trieschock. In Ackler, the Pennsylvania Superior

Court observed in dicta that:

In Trieschock [ ] the Court stated that a plaintiff in a

creeping disease case is not required to have a greater

knowledge than his physician about his medical

condition, and if the physician is not reasonably

certain as to the diagnosis, then a plaintiff cannot have

the knowledge necessary to commence the running of

the statute of limitations. We do not believe this is a

correct statement of the law, as ‘reasonable certainty’

by a physician or the patient is not required by

Cathcart. All that Cathcart requires is that the plaintiff

knows he has an injury, or in the existence of

4. Trieschock has been followed by two other Pennsylvania cases,

discussed infra: Stauffer v. Ebersole, 560 A.2d 816 (Pa. Super. Ct. 1989)

and Frisbie v. Wiseman, 56 Pa. D. & C.4th 403 (Pa. Common Pleas

2001).

22

reasonable diligence, should have discovered that he

has a creeping disease. So long as the claimant is

aware that he has an injury there is no requirement

that he be aware of a precise diagnosis as some

language seems to suggest.

Id. at 296 n.3. See also Groover v. Riddle Mem’l Hosp., 516

A.2d 53, 57 (Pa. Super. Ct. 1986) (“[Plaintiff] need not have

known the precise medical cause of the injury in order to

commence the running of the statute of limitations.”)

Similarly, in Souders the District Court noted that “I find

that Trieschock confuses what is meant by medical

certainty and legal certainty and for that reason is not

worthy of consideration.” 746 F. Supp. at 576.

In Stauffer v. Ebersole, 560 A.2d 816 (Pa. Super. Ct.

1989), however, decided after Ackler and Groover, the

Pennsylvania Superior Court followed Trieschock and held

that a preliminary diagnosis of an injury stemming from

medical malpractice was not enough to start the statute

running. More importantly, despite the criticism of

Trieschock, this Court views itself as bound by its holding

in Bohus, supra, where we stated that “lay persons should

not be charged with greater knowledge of their physical

condition than that possessed by the physicians on whose

advice they must rely.” 950 F.2d at 929. This endorsement

is binding on this Court, notwithstanding the contradictory

Pennsylvania Superior Court opinions on this issue. See

Smith v. Calgon Carbon Corp., 917 F.2d 1338, 1341, 1343

(3d Cir. 1990) (holding that in matters in which “we do not

have the benefit of direct guidance from the Pennsylvania

Supreme Court . . . [w]e are nevertheless required to

‘predict the position which that court would take in

resolving this dispute,’ ” and “in the absence of a clear

statement by the Pennsylvania Supreme Court to the

contrary or other persuasive evidence of a change in

Pennsylvania law, we are bound by the holdings of previous

panels of this court”)(quoting Robertson v. Allied Signal,

Inc., 914 F.2d 360, 364 (3d Cir. 1990)).5 We also cautioned

5. At all events, defendants would have us read Groover and Ackler too

broadly. Groover dealt with a situation in which, while the exact nature

of the plaintiff ’s injuries was uncertain, it was clear from the outset that

23

in Bohus, however, that “[t]here is indeed some point in

time when a patient’s own ‘common sense’ should lead her

to conclude that it is no longer reasonable to rely on the

assurances of her doctor.” 950 F.2d at 930. But, we added,

“[i]n ascertaining this point in time, however, we are

mindful that ‘[t]o put upon [a patient] the duty of knowing

the nature of her ailment and its relation to her prior

treatment before it is ascertained with a degree of certainty

by the medical profession is a great burden to impose upon

her.’ ” Id. (quoting Stauffer, 560 A.2d at 818) (second and

third alterations in original).

To the extent that the defendants argue that a definitive

diagnosis of CBD was not necessary to start the statute

running, we agree; unrebutted suspicion that a claimant

has a particular disease, which is an injury caused by

another, is sufficient to start the clock. However, we also

conclude that the fact that a definitive diagnosis is not

necessary to start the statute running when a plaintiff

suspects she has been injured and believes she knows the

cause of her injury does not mean that when a doctor

she had suffered some kind of an injury caused by another, as she

experienced severe pain after receiving an injection. We do not here

confront a situation in which it was immediately clear that the plaintiffs

had suffered an injury caused by another; the plaintiffs in the cases at

bar developed illnesses over a long period of time and did not know from

the outset that their condition was an injury caused by another. It made

sense under the circumstances in Groover that the statute should begin

to run as soon as the plaintiff was aware that she had been injured, not

at a later point when she knew the exact nature of that injury, but the

rule of Groover is not transferable to the cases at bar.

Ackler dealt with the question whether a plaintiff ’s signing of a

workmen’s compensation claim stating that he has asbestosis was

sufficient to start the statute running. The Ackler plaintiff believed he

had asbestosis, but had yet to receive a definitive diagnosis. The Ackler

Court observed that “[i]t is not necessary that the exact nature of [the

plaintiff ’s] injury be known so long as it objectively appears that [the

plaintiff] is reasonably charged with the knowledge that he has an injury

caused by another.” 551 A.2d at 293. That situation is distinct from

those we confront here, in that the instant plaintiffs either did not

suspect that they had CBD or were told by their physicians that they did

not.

24

affirmatively tells a claimant that she does not have a

certain disease, and therefore that the defendant was not

the cause of her injury, the fact that the claimant harbors

her own suspicions to the contrary necessarily starts the

clock as well.6

This conclusion is buttressed by the well-reasoned

opinion in Frisbie v. Wiseman, 56 Pa. D. & C.4th 403 (Pa.

Common Pleas 2001). This medical malpractice case was

brought against a physician who mis-diagnosed cervical

cancer as genital herpes. The plaintiff filed her complaint

more than two years after she initially suspected that her

diagnosis might be incorrect. The Court held that despite

these suspicions, and the possibility that she could have

sought a second opinion, the fact that the plaintiff ’s doctor

and physician’s assistant repeatedly assured her that she

had herpes, not cancer, meant that the statute did not start

to run until a second physician’s assistant recommended a

biopsy and the cancer was discovered.

In addition, in Bohus this Court held that a plaintiff ’s

reliance on a doctor’s assurances is reasonable as long as

the plaintiff retains confidence in the doctor’s professional

abilities. In other words, a doctor’s assurances that a

plaintiff does not have a particular injury may toll the

statute of limitations until that “point in time when a

patient’s own ‘common sense’ should lead her to conclude

that it is no longer reasonable to rely on the assurances of

her doctor.” 950 F.2d at 930.

In sum, we conclude that this set of cases about the

relationship between a claimant and her physicians stands

for two propositions: (1) a definitive diagnosis of an injury

6. There is, of course, a distinction between a plaintiff ’s discovery of the

precise medical nature of her injury and her suspicions about the cause

of that injury. While we agree that a plaintiff ’s legal responsibilities are

tied to the latter rather than the former, in the cases we confront here

discovery of the precise medical nature of the injuries and the cause of

the injuries are intertwined. If the precise medical nature of the

plaintiffs’ injuries was CBD, then the cause of their injuries was almost

certainly the beryllium plant. If they were affirmatively told that they did

not have CBD, then they had little reason to suspect that the beryllium

plant was the cause of their injuries.

25

is not necessary to start the statute running; and (2) a

definitive negative diagnosis may be sufficient in some

cases to overcome the fact that the claimant harbored

suspicions that she had a particular injury. Having laid out

the basic legal standards applicable to all four cases, we

turn to the specifics of each plaintiff ’s case.7

III. Application of the Legal Standard

A. Debiec

The defendants contend that the statute of limitations on

Mr. Debiec’s claim began to run “no later than July 22,

1992,” the date of the public EPA hearing at which he

spoke about his suspicion that his wife had berylliosis. Mr.

Debiec counters that it was not clear that his wife’s death

was beryllium-related until an autopsy was performed after

her death on April 12, 2000, and that the statute began to

run at that point. The suit was filed on May 29, 2001.

The defendants point to a number of facts in support of

their argument. Specifically, they urge that by the time she

visited Dr. Shuman in August of 1980, Debiec was aware

that her lung condition might be caused by exposure to an

environmental pollutant, possibly beryllium. In addition,

Mr. Debiec had undertaken significant research into the

cause of his wife’s ailment, and had received

correspondence from Colonel Ward informing him that

beryllium was one known cause of non-specific chronic

7. Debiec et al. also argue that summary judgment in their cases was

inappropriate because it was not granted in two other “substantially

similar” cases before the same District Judge—Eda Anthon v. Cabot

Corp., Civil Action No. 01-3969 (A204-214), and Carolyn M. Koch v. Cabot

Corp., Civil Action No. 01-5187 (A215)—which stem from the same

general circumstances as the cases at bar.

While the facts in Anthon and Koch certainly bear a strong general

resemblance to the facts of these cases, the District Court’s rulings in

those cases can have no impact on our evaluation of the instant cases.

These determinations are individually tailored to the specific facts of

each case, so the ruling in one case does not control what should be

done in other cases.

26

granulomatous tissue. Defendants also draw our attention

to Mrs. Debiec’s brother-in-law John’s research paper

linking sarcoidosis to berylliosis, and to Michael Debiec’s

speech at the EPA meeting in July 1992, in which he

discussed the possible links between sarcoidosis and

beryllium. Finally, the defendants rely on the ATSDR

report, which advised that CBD could “masquerade” as

sarcoidosis.

Defendants urge that this information was more than

sufficient to put Debiec on notice that she had an injury for

which redress might be available, and argue that Debiec

simply failed to use reasonable diligence to investigate her

claims. They remind us that “a definitive diagnosis [of the

injury] is not needed for the statute of limitations to run,”

and submit that the standard for reasonable diligence laid

out in a number of Pennsylvania cases makes it clear that

Mrs. Debiec’s efforts were not sufficient for her to avail

herself of the discovery rule.

The strongest of these cases, in defendants’ view, is

Cochran v. GAF Corp., 666 A.2d 245 (Pa. 1995), which

involved a wrongful death suit brought against

manufacturers of asbestos-containing products. In June of

1981, Cochran, a steel worker, was admitted to the hospital

with back pain. During his stay, doctors performed an

analysis of his lung tissue and concluded that he had

cancer. At the time, Cochran had been smoking one-and-a-

half packs of cigarettes a day since 1947, and in response

to this diagnosis he quit smoking. There was no discussion

in 1981 that his cancer might have been caused by

exposure to asbestos. In March 1985, Cochran was again

admitted to the hospital after chest x-rays showed the

presence of a mass in his lung, which turned out to be a

tumor. Cochran’s 1985 admission records made the first

mention that his lung problems might have been related to

asbestos. At that point, Cochran hired an attorney, who

arranged for a doctor to examine Cochran’s lung tissue in

order to discover the cause of his malignancy. In August

1985, the examining doctor determined that the lung

cancer was asbestos-related, and in September 1985

Cochran filed his complaint against the asbestos

manufacturers.

27

They responded by moving for summary judgment on the

ground that Cochran should have known his cancer was

asbestos-related in 1981, and that therefore the 2 year

statute of limitations on his claim had run. The trial court

granted the motion and the Pennsylvania Supreme Court

affirmed, holding that Cochran had not exercised due

diligence in discovering the cause of his cancer. The Court

reasoned that:

The record indicates that there was ample evidence to

support a diagnosis of asbestos-related lung cancer at

that time. However, Mr. Cochran did not seek

additional legal or medical help to ascertain the precise

cause of his cancer until March of 1985. Appellant’s

sole explanation for this nearly four year lapse is the

assertion that the decedent believed that his cancer

was caused by his smoking habit, and he, accordingly,

stopped smoking. There is no medical evidence in the

record to support decedent’s mistaken belief that his

cancer was caused solely by his smoking.

Id. at 218.

While defendants lean heavily on Cochran, that case is

distinguishable from Debiec’s case in at least one key

respect. In Cochran, the plaintiff was told he had cancer,

and was told to stop smoking, but was apparently not told

that his smoking had caused his cancer. Cochran himself

came to that mistaken conclusion. In the case at bar,

Debiec was told she had sarcoidosis, not CBD, and that it

was very unlikely that her ailment had been caused by

exposure to beryllium. Cochran knew he had an ailment

whose origin could be discovered, but he chose not to take

the necessary steps to make this discovery. Debiec was told

that the cause of her ailment was not beryllium and

therefore she did not have the same incentives as Cochran

to pursue further research on her condition. Therefore,

while we agree that Cochran creates a fairly high bar for

what qualifies as reasonable diligence, we do not think it

dooms Debiec’s case.

Debiec, for his part, relies heavily on Burnside v. Abbott

Laboratories, 505 A.2d 973 (Pa. Super. Ct. 1985), a case

involving suits against pharmaceutical companies brought

28

by women who had suffered damage to their reproductive

organs as a result of their mothers’ ingestion of a drug

called DES. The statute of limitations question in that case

came up in relation to the suit brought by one of these

plaintiffs, a woman named Ann Lynch. In August, 1979,

Lynch was told by her OB-GYN, Dr. Allen, that she had a

cervical stenosis. In that same month, Lynch’s mother told

her that she (the mother) may have taken DES while

pregnant with Ann and that she had recently seen a

television program in which a woman had stated that she

had become “really sick” because her mother had taken

DES while pregnant. Lynch then called her mother’s

obstetrician, Dr. Boal, who told her that her mother had

indeed taken DES, but that there was no need to worry.

Lynch also asked her own doctor if her ailments might be

related to DES and he told her that they were not. In

November, 1979, Lynch met with Dr. Allen for a post-

operative visit and he again told her that there was no need

to worry about DES.

Three months later, in February, 1980, Lynch saw a

television show which discussed DES-related health

problems, including abnormal skin growths, and which

referred people with questions to local health clinics. Lynch

recalled a polyp she had had removed in 1974 and called

the Pittsburgh free clinic. She spoke to a medical social

worker who told her that her ailments might be DES-

related and who advised her to have a colposcopy. Dr. Allen

told her the procedure was unnecessary. Nonetheless,

Lynch contacted a lawyer at this point to discuss the

possibility of litigation. She filed her action against the drug

companies in March, 1982. A subsequent colposcopy

revealed that Lynch had an undersized uterus and ovaries.

The trial court held that as a matter of law Lynch knew

or reasonably should have known by September or

November of 1979, more than two years before she filed her

claim, that she had a DES-related injury, and that therefore

her claim was barred. In so holding, the Court rejected

Lynch’s argument that she could not reasonably have

known about the connection between her condition and

DES until she saw the TV program and spoke to the social

worker. The Superior Court reversed, agreeing with Lynch

29

and holding that while the plaintiff was obviously aware of

her condition prior to September, 1979, it was not clear

that it had been caused by DES. In coming to this

conclusion, the court relied on the fact that two physicians

had assured Lynch that DES was not involved, and that

“[u]nder these circumstances, the application of the statute

of limitations was for the jury.” Id. at 989. The Court

explained that “[i]t cannot be said as a matter of law that

Lynch’s acceptance of the opinions of two trusted

physicians was unreasonable. In the face of these expert

opinions, she could not be expected to know, or so a jury

could find, that her physical difficulties were related to the

DES . . . .” Id. at 990.

Defendants attempt to distinguish Burnside on its facts,

arguing that “the plaintiff in Burnside, unlike Jane Debiec,

was provided with neither a diagnosis nor any link between

her abnormalities and DES during the limitations period.”

This attempt fails because Lynch was apprised of the

potential link between DES and her condition by her

mother during the limitations period; moreover, Debiec did

not receive a diagnosis linking her condition to beryllium

during the limitations period.

We believe that Debiec’s situation more closely resembles

the facts of Burnside than those of Cochran. Like Lynch in

Burnside, Debiec’s personal physician told her there was

little or no reason to suspect that her condition was related

to exposure to beryllium, and, like Lynch, it was family

members who advised Debiec of the potential connection

between her ailments and the toxic compound at issue.

Indeed, it is safe to say that there was more public

information available about the link between DES and

Lynch’s symptoms than there was linking beryllium and

Debiec’s symptoms. The only fact that may significantly

distinguish Burnside from the case at bar is that Lynch

sought a second medical opinion and Debiec did not. We

are not, however, prepared to hold that reasonable diligence

requires a plaintiff who has received a definitive diagnosis

to seek a second opinion to determine the cause of her

injuries.

The District Court agreed with defendants’ analysis of the

events in this case and concluded that Mr. Debiec could

30

not carry the burden of demonstrating that his lawsuit was

timely. In so concluding, the Court relied primarily on the

facts that Mr. Debiec and his brother suspected in the early

1990s that Mrs. Debiec’s condition was beryllium-related,

and that Mrs. Debiec knew about the emissions from the

Reading plant. We are not persuaded by this analysis. It is

clear that while at some point her husband and brother-in-

law suspected that her condition was beryllium-related,

Mrs. Debiec did not agree. Mr. Debiec testified that after the

1992 EPA meeting at which he discussed his belief that

exposure to beryllium had caused his wife’s condition, Mrs.

Debiec told him that he was “crazy” for pursuing the idea

that she may have had berylliosis. He also testified that his

own suspicions about the possible link to beryllium never

altered his wife’s belief that she had sarcoidosis: “. . . what

I suspected really didn’t matter. That was all me. I was on

a crusade. My wife believed she had sarcoidosis. She had

faith and trust in her doctor.” SA at 500. Mr. Debiec further

testified that his suspicions about berylliosis eventually

receded. In response to counsel for Cabot’s question “Did

you believe that her illness proved that breathing beryllium

oxide was hazardous?”, Mr. Debiec stated “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.

For his part, it is clear that Dr. Shuman, a pulmonary

specialist, did not think that Mrs. Debiec had berylliosis. In

commenting on Mrs. Debiec’s 1980 biopsy, Shuman wrote

that “beryllium was tested . . . . 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.” Shuman observed that the results

of the biopsy, which revealed 6.5 micrograms of beryllium

per gram of dried tissue, “mean[ ] 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. Dr. Shuman

31

continued to believe that Debiec was suffering from

sarcoidosis until her death, and he did not alter his

diagnosis until that point. SA at 525.

It is true that, because Mr. Debiec was concerned that

his wife’s condition might have been caused by exposure to

zirconium, Shuman informed Mrs. Debiec that “it may be

worthwhile” to see Dr. Israel about that possibility, despite

the fact that Shuman believed the “evidence for zirconium-

induced granulomas appears to be weak.” Mr. Debiec

explained that they never went to see Dr. Israel because

“Jane had confidence in Dr. Shuman. She had built up

trust, a relationship. When she would have a meeting, she

would come home and we would—I would say to her, how

did it go. And she would always tell me that Dr. Shuman

would give her a big hug when they left. And she wasn’t

about to go to see anyone else.” SA at 501-502.

On the basis of these facts, particularly the fact that Mrs.

Debiec had confidence in Dr. Shuman, who told her she did

not have berylliosis (she believed him) and who consistently

diagnosed her as suffering from sarcoidosis, we conclude

that reasonable minds could differ on the question whether

Debiec employed reasonable diligence in pursuing the

cause of her injury. Therefore, it was error for the District

Court to hold, as a matter of law, that the statute of

limitations had run on Debiec’s claim.

B. Russo

Defendants argue that the statute of limitations began to

run on Mary Russo’s claim by April 12, 1999, the date on

which Russo read a newspaper article linking the Reading

beryllium plant to incidence of lung disease. The District

Court agreed, holding that the fact that Russo had started

to clip newspaper articles on the link between lung disease

and the Reading plant meant that she suspected that her

illness was beryllium-related in early 1999 and that

therefore the statute of limitations had begun to run at that

point. Russo urges that the statute did not begin to run

until June 25, 1999, the day she received the results of her

BeLPT confirming that she had CBD. This suit was filed on

May 24, 2001.

32

Defendants assert that the discovery rule cannot save

Russo’s claim because she was both aware that she had an

injury and had “made the link” between her injury and

beryllium. We do not agree, because whatever suspicions

Russo may have had on the basis of the articles in the

Eagle, neither of Russo’s physicians, certainly more credible

and persuasive sources of medical information than the

Eagle, endorsed her theories. Dr. Bell flatly stated that he

did not believe Russo’s condition was related to beryllium.

Russo testified that when she raised the issue with Bell, he

told her “[i]t’s so long ago, Mary. . . . it can’t be that . . .

’cause that is a long stretch.” SA at 74. Dr. Mengel, less

enthusiastically perhaps, endorsed this diagnosis. Indeed,

he did not alter his diagnosis until the results of the BeLPT,

which Russo herself requested, demonstrated that she was

suffering from CBD.

As discussed above, a definitive diagnosis is not required

to start the statute running. But this was not a situation in

which there was a preliminary diagnosis supporting the

possibility that Russo had CBD; rather, both her doctors

told her she did not have CBD. On the basis of these

negative diagnoses, we conclude that the District Court

erred in ruling that reasonable minds could not disagree

about whether Russo had pursued her claim with sufficient

diligence.

C. Reeser (Executrix of the Estate of Geneva Bare)

In granting summary judgment, the District Court noted

that by the mid-1990s Bare had asked one of her doctors

about the possibility that she had CBD, knew that she had

lung disease, knew about emissions from the nearby plant,

and “yet she took no further action.” App. at 18. Reeser

counters that it was not clear that Bare’s condition was

beryllium-related until an autopsy was performed after her

death on November 2, 2000. The suit was filed on June 6,

2001.

The facts here are certainly close. It is clear that Bare’s

doctors were discussing among themselves the possibility

that she had CBD, but Reeser stated that they never

shared their suspicions with Bare, testifying that “it was

33

never related to her, because she would have related it right

away to us.” App. 113. The testimony of Bare’s daughter,

Mrs. Forry, is damaging to the case in that Forry stated

that at some point her mother had asked a doctor if

berylliosis was a possibility, a question that had been

prompted by an article Bare had read in the local paper.

Forry testified that the doctor had “put off ” this question

and told Bare that the test for berylliosis was unreliable,

but it does not appear that he ruled out the possibility.

This testimony hurts Reeser’s case because it suggests that

Bare knew about the possibility that she had CBD in the

mid-1990s and that she did not pursue this possibility by

getting the relevant tests. But Reeser counters that Forry’s

testimony was inconclusive as to when this incident

actually occurred. When pressed on whether this event

might have happened in the late rather than the mid-

1990s, Forry said “It could have. I just don’t remember. I

honestly don’t.” SA at 213.

Defendants’ argument rests on Forry’s testimony; absent

the conversation between Bare and her doctor, there is little

reason to think that Bare suspected that she had berylliosis

until directly before her death. If that conversation, which

may have triggered Bare’s duty to investigate the possibility

that she had berylliosis, occurred more than two years

before Reeser filed suit, then the suit may well be time-

barred. If it occurred within the two-year period, however,

the suit is permissible. Because Forry cannot remember

when the key conversation took place, reasonable minds

could differ about whether Bare pursued her claim with

reasonable diligence. Therefore that question is for a jury to

decide.

We add that, even if that conversation took place more

than two years before Reeser filed suit, there is still the

possibility that reasonable minds could differ on the

question whether Bare exercised due diligence in pursuing

her claim. In addition to telling Bare that “he really didn’t

think [the berylliosis issue] was important to her case,” the

doctor advised her that “the test wasn’t really accurate.” SA

at 199. On the basis of this conversation, a reasonable

person in Bare’s situation could easily have surmised that

further investigation of the possibility that she had

34

berylliosis would be unavailing because the then current

testing methodology was inaccurate. This consideration too

will have to be explored by a finder of fact.

D. Branco

Plaintiff John Branco argues that he justifiably relied on

a negative result from a CBD test in deciding not to file

suit. We are, however, persuaded that Branco should have

suspected as early as 1995, and certainly by May 1997,

that he suffered from CBD, and that the tests which

followed, negative though they were, cannot support tolling

in light of the doctor’s warnings that the tests were

technically unsatisfactory and that Branco should undergo

further testing, and in the absence of assurance from his

physicians that he did not have a beryllium-related disease.

Branco worked at the defendants’ plant for thirty-three

years (1950 to 1983) and lived nearby most of his life. In

May 1995, Branco visited his doctor complaining of

shortness of breath upon walking up hills or steps. Supp.

App. at 1. One month later, he received a packet of

information from the Department of Health and Human

services, which included a letter informing Branco that it

had studied the possible link between beryllium exposure

and pulmonary diseases such as lung cancer and CBD. The

letter stated in part:

Chronic beryllium disease and lung cancer may

develop 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. . . . If you have lung or breathing problems

that don’t go away, see your doctor. Take the [enclosed]

fact sheet For Your Doctor with you.

Supp. App. at 42. In addition to the fact sheet containing

technical information for a patient’s physician, the mailing

also included a summary of the study’s findings, and a

document titled “Steps to Protect Your Health,” which

stated that “[t]he main symptoms of chronic beryllium

disease are shortness of breath while exercising or walking,

cough, fatigue, weight loss, or chest pain.” App. at 45. We

35

conclude that these warnings were sufficient to put Branco

on notice that he was at risk of contracting CBD.

By May 1997, Branco’s shortness of breath had

progressed to the point that he was admitted to the

hospital. At that time he was advised he had mild

berylliosis. His May 30, 1997, discharge summary noted

Branco’s “[h]istory of mild berylliosis.” Supp. App. at 7.

Branco was readmitted several times over the next six

months, each time complaining of breathing problems, and

each time doctors noted his history of berylliosis. His

August 1997 discharge summary noted that “[t]he patient

is a 76-year-old male with a 35 year history of working at

American Beryllium,” and his final diagnosis included the

following: “[r]espiratory failure secondary to . . . [c]hronic

interstitial lung disease likely related to berylliosis.” Supp.

App. at 14. This diagnosis was repeated in an August 10,

1997, letter from one of Branco’s cardiologists to his

treating physician, which also stated that arrangements

were being made for Branco to undergo further testing at

the University of Pennsylvania “in order to perform the

needed specialized studies to diagnoses [sic] or rule out

beryllium-related fibrosis.” Supp. App. at 17.

On August 11, 1997, Dr. Joseph A. Mariglio, a

pulmonologist who had examined Branco after referral by

one of Branco’s cardiologists, noted that Branco “had

worked in the beryllium industry locally in Reading for 30

to 35 years,” that “[m]any of his friends who worked in

similar jobs were diagnosed as having berylliosis and have

either died or are on therapy,” and that he “lives in

Temple[,] an area that surrounds many of the beryllium

factories/plants in the Reading area.” Supp. App. at 20. Dr.

Mariglio noted his “impression” was Branco had

“progressive Interstitial Lung Disease with respiratory

failure most likely berylliosis . . . .” Supp. App. at 20.

On August 14, 1997, Branco canceled his scheduled

tests. Dr. Mariglio wrote to Branco on August 19th,

reiterating his belief that additional pulmonary testing was

necessary to develop a more specialized treatment regimen

of medication therapy, and warning additional delay would

result in further deterioration of his condition. Dr. Mariglio

wrote to Branco’s cardiologist on September 15, 1997,

36

indicating that in an office visit that day Branco relented

and agreed to undergo the necessary beryllium testing. In

the same letter, Dr. Mariglio again stated that “[d]ue to his

previous exposure to berylliosis, the most likely culprit

initiating his Interstitial Lung disease remains beryllium

exposure.” Supp. App. at 23. d—d

These visits culminated in a September 1997 referral to

Dr. Milton Rossman, a pulmonary expert at the Hospital at

the University of Pennsylvania, at which time Branco

submitted to a blood lymphocyte proliferation test (BeLPT)

and a bronchoscopy with bronchoalveolar lavage. These

tests were negative for berylliosis—Rossman’s notes to Dr.

Mariglio, the referring doctor, stated that “there was no

significant proliferation of either his blood or lung cells to

beryllium sulfate or beryllium fluoride.” App. at 96.

Critically, however, Rossman cautioned that

the positive controls of the lung cells did not respond

to the mitogens, PHA and Con A, or to the recall

antigen, Candida, and therefore this is a technically

unsatisfactory study. Transbronchial biopsy showed

only mild chronic inflammation. Thus, these studies

cannot confirm evidence of chronic beryllium disease

being the cause of Mr. Branco’s interstitial lung

disease. Other causes must be considered such as

bronchiolitis obliterans or idiopathic pulmonary

fibrosis.

Id.

Branco asserts that these negative results were sufficient

to toll the statute of limitations, and notes that Dr. Mariglio

did not alter his diagnosis from idiopathic pulmonary

fibrosis to CBD until after Branco’s death.

We disagree. The information provided to Branco from

the test results was hardly a definitive negative diagnosis

for CBD. At most, those studies “[could not] confirm

evidence of chronic beryllium disease being the cause of

Mr. Branco’s intersititial lung disease.” This is not the same

as ruling out the defendants’ plant as the cause of the

injury. Indeed, the pulmonologist who conducted the tests

“recommended that Mr. Branco have a repeat

bronchoalveolar lavage to definitively rule out beryllium

37

disease since the lung proliferative results were technically

unsatisfactory though negative.” Moreover, unlike the other

plaintiffs dealt with in this opinion, Branco was never

assured by his physician that he did not have a beryllium-

related disease (and indeed he was advised that he did).

Unfortunately, the testing was physically difficult for

Branco; he “had a febrile response after the lavage as he

was about to leave the hospital and, concomitant with this,

developed increasing hypoxemia.” App. at 97. Branco was

already very ill at this point and, in light of his negative

reaction to the initial tests, he understandably did not want

to endure a second round of tests which would make him

sicker still. Yet Branco’s poor health cannot justify

equitable tolling, the purpose of which is to safeguard

potential plaintiffs against causes of action they had no

means of discovering. Here, even after the testing, Branco

knew it was possible he had CBD, so if he considered

further testing infeasible, the proper recourse was to file

suit.

In sum, we think the June 1995 HHS warnings and the

May 1997 advice that he had berylliosis were sufficient to

put Branco on notice that he might have CBD, and to start

the running of the statute of limitations. We do not believe

that reasonable minds can differ on this point in the

absence of assurance from his physicians that he did not

have a beryllium-related disease.

IV. Conclusion

Because reasonable minds could disagree about whether

Jane Debiec, Mary Russo, and Shannon Reeser exercised

reasonable diligence in investigating their physical

conditions, this question, and therefore the issue of

whether the statutes of limitation have run in these cases,

is for the jury. The judgments of the District Court will

therefore be reversed as to these three plaintiffs, and their

cases will be remanded. The judgment regarding John

Branco will be affirmed.

38

AMBRO, Circuit Judge, concurring in part and dissenting in

part:

I. Introduction

I agree with the majority that these appeals raise

important issues involving when a doctor’s statements

about (or even a diagnosis of) a plaintiff ’s illness in a latent

injury case toll the statute of limitations under the

discovery rule. According to well-settled precedent, the

statute of limitations begins to run as soon as a plaintiff

knows, or reasonably should know, that she has been

injured and that her injury has been caused by another

party’s conduct. Bohus v. Beloff, 950 F.2d 919, 924 (3d Cir.

1991) (citing Cathcart v. Keene Indus. Insulation, 471 A.2d

493, 500 (Pa. Super. Ct. 1984)). “The plaintiff need not

know the exact medical cause of the injury; that his injury

is due to another’s negligent conduct; or that he has a

cause of action.” Bohus, 950 F.2d at 924-25 (internal

citations omitted). Rather than actual knowledge, “[t]he

‘polestar’ is . . . ‘whether the knowledge was known, or

through the exercise of diligence, knowable to [the]

plaintiff.’ ” Bohus, 950 F.2d at 925 (quoting O’Brien v. Eli

Lilly & Co., 668 F.2d 704, 711 (3d Cir. 1981)). To that end,

“[e]very plaintiff has a duty to exercise ‘reasonable diligence’

in ascertaining the existence of the injury and its cause.”

Bohus, 950 F.2d at 925.

The Pennsylvania Supreme Court has defined “reasonable

diligence” as

a reasonable effort to discover the cause of an injury

under the facts and circumstance[s] present in the

case. Long ago we recognized that “[t]here are few facts

which diligence cannot discover, but there must be

some reason to awaken inquiry and direct diligence in

the channel in which it would be successful.”

Cochran v. GAF Corporation, 666 A.2d 245, 249 (Pa. 1995)

(internal citations omitted). Reasonable diligence is an

objective standard. Id. A plaintiff “must exercise only the

level of diligence that a reasonable man would employ

under the facts and circumstances presented in a

particular case.” Id. “[A] diligent investigation may require

39

one to seek further medical examination as well as

competent legal representation.” Id. (citations omitted).

While “whether a plaintiff has exercised reasonable

diligence is usually a jury question,” Bohus, 950 F.2d at

925 (citation omitted),

[t]here is indeed some point in time when a patient’s

own “common sense” should lead her to conclude that

it is no longer reasonable to rely on the assurances of

her doctor. In ascertaining this point in time, however,

we are mindful that “[t]o put upon [a patient] the duty

of knowing the nature of her ailment and its relation to

her prior treatment before it is ascertained with a

degree of certainty by the medical profession is a great

burden to impose upon her.”

Id. at 930 (internal citations omitted). More succinctly,

“ ‘reliance upon the word of one physician when the

patient’s own common sense should lead to a different

conclusion is unreasonable.’ ” Id. At 925 (quoting DeMartino

v. Albert Einstein Medical Center, 313 Pa. Super. 492, 506

(1983)).

These principles of Pennsylvania law, when applied to the

varied facts of these cases, lead to differing results. Despite

physicians’ statements pointing to or diagnoses of illnesses

other than chronic beryllium disease (“CBD”), many of the

plaintiffs still strongly suspected or had notice their

extended exposure to the defendants’ beryllium plant was

the source (or cause) of their various lung ailments. For

those plaintiffs, the time to sue began and they were

required within that time to exercise reasonable diligence to

discover the true cause of their health problems and to file

suit to protect their legal rights. The limitations clock

stopped if a doctor’s diagnosis or statements affirmatively

dissuaded due diligence from being exercised by a putative

plaintiff and that inaction did not run counter to common

sense.

Put another way, if a plaintiff had symptoms of lung

disease, and had reason to believe the defendants’

beryllium plant caused that injury — whether the

information was obtained from a doctor, medical study,

government letter, or possibly a media story — the statute

40

of limitations began to run. Pennsylvania’s discovery rule

tolled the limitations period only if a physician definitively

informed a plaintiff that she did not have an illness caused

by beryllium (and, a fortiori, the defendants’ plant) and

common sense did not make her reliance unreasonable.

In this context, I join fully the majority’s opinion as to

John Branco, concur in the result reached as to Geneva

Bare and Mary Russo, and dissent as to Jane Debiec.

Although I would only decide one case differently than the

majority (Debiec), I believe the facts of another (Russo) are

closer than the majority acknowledges.

II. Application of Pennsylvania Law to Debiec Case

The majority examines Jane Debiec’s health history at

great length but, in doing so, disproportionately relies (in

my view) on the diagnosis of her treating physician, Dr.

John Shuman. The majority notes Dr. Shuman diagnosed

Mrs. Debiec with sarcoidosis in 1978, told her it was

unlikely the cause was beryllium, and maintained this

diagnosis until her death in April 2000. Although there is

no evidence that Mrs. Debiec made any further effort to

investigate what caused her sarcoidosis during the interim

two decades — despite her husband’s publicly expressed

belief during this time that it was caused by the defendants’

plant — the majority concludes reasonable minds could

differ as to whether Mrs. Debiec exercised reasonable

diligence in discovering the cause of her injury. I do not

agree.

As an initial matter, while Dr. Shuman did inform Mrs.

Debiec many years ago it was unlikely her illness was

caused by beryllium, the record does not indicate he

continued to assure her over the years that the defendants’

plant was not the source of her sarcoidosis. Dr. Shuman

recommended Mrs. Debiec undergo a lung biopsy in 1978

when she was experiencing respiratory difficulty during her

second pregnancy. In his deposition testimony, taken in

February 2002, Dr. Shuman stated that he ordered the

biopsy tissue tested for beryllium because he was aware

she was living near the defendants’ plant. The test revealed

beryllium in her lung tissue, but not in amounts significant

41

enough to consider diagnosing Mrs. Debiec with beryllium-

induced lung disease, although Dr. Shuman stated he

could not rule it out as a possibility. Besides an unheeded

recommendation in 1980 to seek a second opinion whether

zirconium was the cause of Mrs. Debiec’s sarcoidosis (in

response to Mr. Debiec’s questioning on this point), there is

no evidence that Dr. Shuman at any time in the succeeding

twenty years again considered or discussed, much less

rejected, the possibility of a causal connection between the

defendants’ plant and Mrs. Debiec’s declining health. In

fact, Dr. Shuman testified he did not recall Mr. Debiec ever

directly asking him if his wife’s condition was caused by the

defendants’ plant, and was even surprised when he learned

at Mrs. Debiec’s funeral that Mr. Debiec suspected as much.1

But while Dr. Shuman may have had no reason to revisit

his initial diagnosis that Mrs. Debiec’s sarcoidosis was

unrelated to beryllium, she had ample facts to suspect her

illness was caused by exposure to the defendants’ plant. In

June 1990, John Debiec, Mr. Debiec’s brother, wrote a

research paper while at Pennsylvania State University titled

“The Environmental Impact of the NGK Metals Facility on

the Local Community.” The paper anonymously referred to

Mrs. Debiec’s case and mentioned that, because she lived

near the defendants’ beryllium plant, she may actually

suffer from CBD, not sarcoidosis, and hypothesized her

case indicated a relationship between sarcoidosis and CBD.

John Debiec also attached to the paper a copy of his sister-

in-law’s biopsy report with her name redacted. John Debiec

testified in his deposition that at the time he wrote the

report he suspected emissions from the defendants’ plant

caused Mrs. Debiec’s condition and that he shared his

belief with Mr. Debiec, but not Mrs. Debiec.

On July 22, 1992, the Environmental Protection Agency

(EPA) held a public meeting in Muhlenberg, Pennsylvania,

1. In response to a question about whether Mr. Debiec, or anyone else on

his behalf, ever asked Dr. Shuman if Mrs. Debiec’s condition was caused

by the defendants’ plant, Dr. Shuman replied: “I don’t recall anybody

asking me that. I subsequently became aware that he was thinking that

and that was at her funeral, which sort of caught me off guard. I didn’t

realize that he thought about it that strongly.”

42

regarding health issues and the defendants’ plant. Jane,

Michael, and John Debiec all attended. The transcript of

the meeting indicates Michael Debiec (Mrs. Debiec’s

husband) asked the following:

Does the NGK Company have any — in this plan of

recovery and fixing, are they going to make any

restitution to people who probably have grieved [sic]

this since the 1950s and ‘60s and have been seriously

ill with some type of disease that’s caused by

beryllium, cadmium, or anything else?

Mr. Debiec also 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 Temple. And I [have] 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.

In October 1993, Mr. Debiec wrote a letter to the Agency

for Toxic Substances and Disease Registry (ATSDR),

apparently in response to his having reviewed a copy of its

draft report. His letter strongly criticized the ATSDR’s

investigatory effort to find a causal connection between the

defendants’ plant and the illnesses of local residents.

I hope this is the last letter I have to write to any

government agency concerning my wife’s illness and

the adverse effects of Beryllium plants across the

United States.

* * * * *

I’m appalled and shocked that your investigative team

could not come up with any other residents who are

suffering from Beryllium related illness 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

[redacted] in Temple for half of her life. She breathed

43

the air and played in the 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. How much Beryllium dust

does it take for a person to lose two-thirds of their [sic]

breathing capacity?

* * * * *

In my opinion, the bottom line is this, if your team had

done an adequate investigative job, interviewing the

right people, the report should have stated that the

residents of Muhlenberg Township who live within a

radius of five miles from the NGK plant are getting ill,

have been getting ill and will continue to get ill. They

may not get a breathing disorder such as Sarcoidosis

or Berylliosis. Brain tumors and certain cancers have

become prevalent to some residents who live near the

plant.

The final ATSDR report on the Reading plant was

released in June 1995, and stated that “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.” The report also recommended that “long-

term residents who have been diagnosed as having

sarcoidosis and who suspect that they may 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.”

The majority cites portions of this same evidence and

concludes it proves only that Mr. Debiec and his brother

suspected Mrs. Debiec’s condition was beryllium-related,

but she did not agree, and opted instead to rely on Dr.

Shuman’s diagnosis. But whether Mrs. Debiec agreed with

her husband is not relevant. “[T]here are few facts which

diligence cannot discover, but there must be some reason

to awaken inquiry and direct diligence in the channel in

which would be successful.” Cochran, 666 A.2d at 249

(internal citation omitted). Layer upon layer of strong

44

evidence compiled by Mr. Debiec and his brother, acquired

in part from Government sources, demanded Mrs. Debiec

exercise reasonable diligence to investigate further. A

“diligent investigation may require one to seek further

medical examination as well as competent legal

representation,” id., and Mrs. Debiec sought neither.

I agree with the majority that usually a claimant may rely

on the assurances of her doctor instead of the suspicions of

her spouse. But that is not what happened here. There is

no evidence that, in the twenty years after Dr. Shuman first

told Mrs. Debiec it was unlikely her sarcoidosis was caused

by beryllium, he ever reiterated this opinion in response to

an inquiry based on the growing body of evidence to the

contrary. While the discovery rule may have tolled the clock

initially, “that the statute of limitations is tolled does not

mean it is no longer applicable.” Bohus, 950 F.2d at 926.

The record overwhelmingly demonstrates that by the mid-

1990s Mr. Debiec believed (and Mrs. Debiec knew of this

belief), on the basis of his extensive information-gathering,

that his wife’s illness was beryllium-induced and was

caused by the defendants’ plant. Mrs. Debiec chose to

ignore this information and engaged in no further

investigation. It is possible she merely wanted to enjoy her

remaining years free from the burdens of a prolonged

search into the cause of her illness. This was her

prerogative, but reasonable diligence is an objective, not

subjective standard. See Cochran, 666 A.2d at 249.

Although Dr. Shuman never altered his original diagnosis,

in later years, when sources such as the ATSDR were

advising that CBD may masquerade as sarcoidosis, Mrs.

Debiec no longer could ignore that the defendants’

beryllium plant may have been the cause of her injury.

Indeed, even if we ignore all the warnings of her illness’

source prior to the ATSDR report, it alone triggered the two-

year limitations period in which to attend to her legal

rights.

The District Court concluded the facts are so clear in this

case that reasonable minds cannot differ on the question

whether Mrs. Debiec exercised reasonable diligence in

attempting to discover the cause of her injury. Mr. Debiec

filed suit on behalf of his wife on May 29, 2001, nearly

45

eight years (under the most generous interpretation) after

she knew or should have known of the defendants’ alleged

involvement in causing her illness. Accordingly, I would

affirm the District Court’s ruling that this suit is time

barred.

III. Other Plaintiffs

I concur in the result reached by the majority in the case

of Geneva Bare, who died on November 2, 2000. Suit was

filed by her daughter and administratrix, Sharon Reeser, on

June 6, 2001. The District Court relied almost entirely on

the fact that Judith Forry, another of Bare’s daughters,

testified in her deposition that during a doctor visit in the

mid-1990s Bare, having read an article on the topic in the

local newspaper, asked whether her lung disease could be

due to beryllium exposure. But, as noted by the majority,

the District Court ignored related testimony by Forry that

she could not accurately recall the date of this

conversation, and allowed that it may have taken place in

the late 1990s. Accordingly, the disputed fact issue — the

date when Bare received notice that the defendants’ plant

may have been the cause of her injury — should be decided

by a jury.

I concur also in the result reached as to Mary Russo, but

I believe her case is closer than the majority acknowledges.

Contrary to the majority’s factual analysis, Mrs. Russo’s

doctors never definitively diagnosed her as not having CBD,

much less did they dispel her concern that the defendants’

plant was the cause of her injury. Dr. Bell diagnosed her

with idiopathic pulmonary fibrosis of an unknown nature,

and told her it was unlikely her illness was due to her

employment at the facility five decades ago. Dr. Mengel

confirmed this diagnosis. But there is no evidence any

doctor told Mrs. Russo her injury was not caused by her

many years of living and working near the defendants’

plant, as she evidently suspected. According to Mrs. Russo,

“I wasn’t happy with that” explanation. “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.” Mrs.

Russo’s suspicion of nonoccupational CBD was derived

from information she received from her local newspaper.

46

While her doctors may not have shared her concern, these

articles gave Mrs. Russo adequate information for her to

propose to them that she undergo a medical procedure that

in the end confirmed her suspicions were correct.

Ultimately, however, I do not believe the facts are so clear

that reasonable minds cannot differ as to when the

limitations period began. Although the March 29, 1999,

and April 12, 1999, newspaper articles provide some

persuasive evidence Mrs. Russo had notice of the cause of

her injury prior to May 29, 1999 — two years before she

filed suit — this is too slim a reed on which to rest entirely

a finding that her suit is time barred.

As noted above, I join fully the decision concerning John

Branco, and thus have nothing further to add.

IV. Conclusion

As noted by the majority, in this diversity action our task

is to look to Pennsylvania law and predict how the

Pennsylvania Supreme Court would decide the case. Bohus,

950 F.2d at 924. To that end, the Pennsylvania Supreme

Court has cautioned against adopting an approach that

“would dramatically expand the discovery rule and open the

flood gates to allow anyone with a good faith lack of

diligence to claim the benefit of the rule.” Cochran, 666

A.2d at 250. In this context, while I concur in varying

degrees with the determinations of the majority as to

plaintiffs Bare, Russo and Branco, I disagree as to Mrs.

Debiec. In her case, the majority assigns more importance

that would I to Dr. Shuman’s 1978 misdiagnosis and less

importance than would I to the myriad later events pointing

— strongly and clearly — to beryllium (and thus the

defendants) as the cause of her condition. The majority

holds it is a jury question whether the statute of limitations

is tolled until Mrs. Debiec received a positive diagnosis of

CBD, even if the prior non-CBD diagnosis did not prevent

her — by exercising minimal diligence amidst the wave of

information gathered by, inter alia, her husband — from

learning the cause of her injury. I do not believe this

departure from settled precedent would be endorsed by the

Pennsylvania Supreme Court, which “ha[s] not hesitated to

find as a matter of law that a party has not used

47

reasonable diligence in ascertaining the cause of an

injury[,] thus barring the party from asserting [that] claim

under the discovery rule.” Id. at 248. Therefore, I

respectfully dissent with respect to the majority’s

determination as to Mrs. Debiec.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit