The opinion
Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-19-2004
Sheridan v. Cabot Corp
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1984
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 03-1984
__________
SHIRLEY G. SHERIDAN
Appellant,
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,
__________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(Civ. A. No. 02-cv-01212)
District Judge: Honorable Harvey Bartle, III
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 28, 2004
___________
Before: ROTH, BARRY, and GARTH, Circuit Judges
(Opinion Filed: October 19, 2004)
__________
OPINION
__________
Garth, Circuit Judge:
Shirley G. Sheridan, the plaintiff, has brought this action against the defendant
Cabot Corp. pursuant to our diversity jurisdiction. She suffers from multiple medical
ailments, including chronic beryllium disease. The question before us is whether she has
established a cause of action under Pennsylvania law for beryllium-related disease, where
the only alleged symptoms include permanent scarring of the lungs, shortness of breath
and reduced pulmonary functioning.
The District Court granted summary judgment in favor of Cabot, concluding that
Sheridan presented no evidence tending to establish the requisite causal nexus between
her shortness of breath–the only alleged symptom that qualifies as a functional
impairment–and her chronic beryllium disease, thus failing to establish a compensable
injury under Pennsylvania law. We will affirm.
I.
Because we write exclusively for the benefit of the parties who are well acquainted
with the facts and procedural posture of the present action, we will recount only those
matters relevant to the issues before us. On October 30, 2001, Sheridan was diagnosed
with chronic beryllium disease. Beryllium is a lightweight, high strength, tensile metal
with a variety of industrial uses. It is also a toxic substance with the capacity to cause
both cancer and a chronic scarring lung disease–chronic beryllium disease. Cabot and its
predecessors manufactured and processed beryllium-containing products at its facility in
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Reading, Pennsylvania. Sheridan’s exposure to beryllium occurred between 1951-1956,
when she lived nearby the Reading Plant, which was emitting toxic beryllium fumes,
dusts and particulate matter into the ambient air. She has had no other exposure to
beryllium.
In October 2001, Dr. Milton Rossman of the University of Pennsylvania first
evaluated Sheridan to determine whether she was afflicted with chronic beryllium
disease. At that time, Sheridan reported no respiratory problems, and Dr. Rossman
described her as “active as any other 74 year old.” Dr. Rossman’s evaluation included a
CT scan, chest x-ray, blood tests, pulmonary function tests, bronchoscopic lavage and
beryllium lymphocyte proliferation tests of blood and lung cells. The tests found that
Sheridan’s pulmonary function was “within normal limits.” In an October 30, 2001 letter
to Sheridan’s primary care physician, Dr. Mark Zibelman, Dr. Rossman stated:
Ms. Sheridan clearly has evidence of chronic beryllium disease. She had chronic
granulomatis process of her mediastinum and lungs and a strong response to
beryllium both in her blood and in her lung cells. Currently, there is no indication
for treatment of this condition as she has essentially normal pulmonary function
and there is no progressive evidence of lung disease on her high resolution CT. In
addition, her bronchioalveolar lavage does not show a marked increase in her
lymphocytes suggesting that this is probably stabilized and may not require
treatment in the future.
Dr. Rossman recommended that Sheridan be followed closely and have pulmonary
function studies and a chest x-ray “at least on a yearly basis.”
On November 21, 2002, Sheridan returned to Dr. Rossman for her annual visit. In
his letter of the same date to Dr. Zibelman, Dr. Rossman wrote that Sheridan had “noticed
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some increasing shortness of breath over the last year” while taking walks and going up
steps. Dr. Rossman noted that her pulmonary function studies “were essentially
unchanged from what she had previously . . . . Except for a slight reduction in her vital
capacity.” Based on the tests that were conducted, Dr. Rossman was unable to determine
whether Sheridan’s shortness of breath or slight decrease in lung capacity were caused by
her chronic beryllium disease. Her chest x-ray remained unchanged from her x-ray in
October 2001. Dr. Rossman wrote:
My suspicion is that her beryllium disease has not progressed in the last year;
however, because of the active inflammation noted in her lungs, she is still at risk
for developing progressive beryllium disease. I am concerned because of the
shortness of breath that she relates that there may be something going on either due
to her hives or due to her beryllium disease.
Notwithstanding these concerns, Dr. Rossman did not prescribe medication to combat
Sheridan’s disease. Dr. Rossman explained his reasons as follows:
Because there were no abnormalities on a routine chest x-ray. Her pulmonary
function studies were all within the normal range. And, finally, over time, I did
not see any progressive decline in her [pulmonary] function.
Sheridan also suffers from several unrelated medical conditions. Over the last
several years, she has been diagnosed with hypertension, nonobstructive coronary artery
disease, acid reflux disease, a gastric ulcer, allergies, anxiety and osteoporosis. In
addition, since 1971, Sheridan has suffered from chronic urticaria, commonly known as
chronic hives. Notably, Dr. Rossman recounted in his October 30, 2001 letter to Dr.
Zibelman that Sheridan had informed him that her attacks of chronic hives were often
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accompanied by “shortness of breath, wheezing and a cough.”
Sheridan’s retained litigation expert, Lisa M aier, M.D., submitted an expert report,
in which she opined that Sheridan has chronic beryllium disease. Dr. Maier did not
examine Sheridan, instead basing her medical opinion solely upon a review of the
medical records. Dr. Maier later testified at a subsequent deposition that Sheridan’s
chronic beryllium disease had caused chronic scarring in her lungs. Dr. Maier was unable
to identify any other impairments attributable to chronic beryllium disease. Of particular
importance here, Dr. Maier never opined that Sheridan’s shortness of breath or decrease
in pulmonary capacity were caused by chronic beryllium disease. And although Dr.
Maier did observe that from 2001 to 2002 Sheridan’s total lung capacity had decreased
from ninety-two percent predicted to eighty-five percent predicted, which would be
considered a significant change according to the American Thoracic Society, she noted
that, even with this reduction in function, Sheridan’s lung volumes continued to be within
normal limits.
At her deposition, moreover, Dr. Maier was asked by defense counsel how
Sheridan’s chronic beryllium disease had progressed, to which she responded that
Sheridan has:
had some subtle decrements in her pulmonary function testing. She now does have
some symptoms of shortness of breath, and Dr. Rossman, while he does not – is
not sure whether those are related to chronic beryllium disease or not, is concerned
enough that he wants her to come back to see him in six months, so my concern is
the pulmonary function abnormalities that we – or the reductions that we
mentioned earlier are probably attributed to [chronic beryllium disease], and that
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it’s possible that her symptoms now of shortness of breath could be, too.
Defense counsel further inquired, “[d]o you agree that, based upon the information
available today, that you cannot differentiate between hives or beryllium disease as the
cause of [Sheridan’s] reported shortness of breath within a reasonable degree of medical
certainty?” Dr. Maier responded that ‘[w]ith the testing that [Dr. Rossman] has obtained,
I would agree with that.”
II.
The District Court granted summary judgment in favor of Cabot, finding that
Sheridan had not yet suffered a compensable injury under Pennsylvania law. Applying
Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996), the District Court determined that the
chronic scarring of Sheridan’s lungs, unaccompanied by any physical impairment, was
not a compensable injury. The District Court found that the decline in pulmonary
functioning did not qualify as an impairment because Sheridan’s lung volumes remained
within normal limits. As for Sheridan’s shortness of breath, the District Court noted that,
although it might qualify as a physical symptom or functional impairment, Sheridan
nonetheless failed to raise an issue of fact as to the necessary causal link between her
symptoms and chronic beryllium disease.
We exercise plenary review over the 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 plaintiff.
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Fed. R. Civ. P. 56(c); Debiec v. Cabot Corp., 352 F.3d 117, 128 n. 3 (3d Cir. 2003)
(citation omitted). We are required to “view the record and draw inferences in a light
most favorable to the non-moving party.” Debiec, 352 F.3d at 128 n.3 (citation omitted).
The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1332. We have
appellate jurisdiction pursuant to 28 U.S.C. §1291.
III.
Under Pennsylvania law, a medical condition, even if termed a “disease,” that is
unaccompanied by discernable symptoms or physical impairment is not a compensable
injury. Simmons v. Pacor, Inc., 674 A.2d 232, 237 (Pa. 1996). In Simmons, plaintiffs had
sued various defendants because of exposure to asbestos while serving in the military or
in civilian employment. While each of the plaintiffs had asbestos-caused pleural
thickening, the functioning of their lungs was not impaired, and none of the plaintiffs was
suffering from cancer. Id. at 234. Plaintiffs argued that they were entitled to damages
because the pleural thickening put them at a significantly greater risk of contracting
asbestosis and lung cancer. The Pennsylvania Supreme Court rejected this argument,
holding that asymptomatic pleural thickening is not a sufficient physical injury to warrant
damages. The Court emphasized, moreover, that plaintiffs were free to initiate lawsuits
“when symptoms develop and physiological impairment begins.” Id. at 237.
Cabot leans heavily on Simmons, arguing that in this case, too, Sheridan’s chronic
scarring of the lungs is asymptomatic, unaccompanied by a discernable physical or
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functional impairment. We agree. The decline in pulmonary functioning is not a
sufficient physical injury, inasmuch as Sheridan’s pulmonary functioning remained within
normal limits, as testified to by both Drs. Rossman and Maier. More than that, Dr. Maier
did not testify that the decline in pulmonary functioning, even if significant, was
definitively caused by chronic beryllium disease, as opposed to Sheridan’s other medical
conditions.
In addition, the Pennsylvania courts have consistently held that shortness of breath,
alone, is not a compensable injury under Simmons because it is not a discernable physical
symptom, a functional impairment, or a disability. See, e.g., Ryan v. Asbestos Corp. LTD,
829 A.2d 686, 688 (Pa. Super. Ct. 2003); Quate v. American Standard, Inc., 818 A.2d
510, 513 (Pa. Super. Ct. 2003); Taylor v. Owens-Corning Fiberglas Corp., 666 A.2d 681,
687 n.2 (Pa. Super. Ct. 1995). What these cases properly recognize is that breathlessness
is also associated with any number of unrelated medical ailments, which is to say that a
causal link must be established between the diagnosis of chronic beryllium disease and
the shortness of breath symptom. Here, Sheridan has failed to submit evidence tending to
establish this essential nexus. As noted above, neither Dr. Rossman nor Dr. M aier could
testify that any of Sheridan’s symptoms, including her shortness of breath, were caused by
her chronic beryllium disease, and not her chronic hives or other unrelated medical
ailments. Without such evidence, Sheridan’s shortness of breath does not qualify as a
physical or functional impairment. Sheridan’s chronic scarring, then, is asymptomatic,
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which, pursuant to Simmons, is not a compensable injury under Pennsylvania law.
Sheridan, however, tries to differentiate this case from the clear strictures of
Simmons by distinguishing her chronic beryllium disease from asbestosis or other
asbestos-related conditions. This argument fails for at least two reasons. First, Sheridan
does not appear to have raised this argument before the District Court. As such, she is
barred from raising it for the first time on appeal. Ross v. Hotel Employees and
Restaurant Employees, 266 F.3d 236, 242 (3d Cir. 2001) (“Generally, absent compelling
circumstances an appellate court will not consider issues that are raised for the first time
on appeal.”) (citation omitted).
Second, even if we were inclined to consider this argument, we find it lacks merit.
While it is true that Simmons and its progeny dealt with asbestos-related impairments, not
chronic beryllium disease, we see no reason to limit Simmons to the asbestos context.
Sheridan, for her part, relies heavily on Murray v. Hamot Medical Center, 633 A.2d 196
(Pa. Super. Ct. 1993), alloc. denied, 658 A.2d 796 (Pa. 1994), in which the Pennsylvania
Superior Court held that the statute of limitations on plaintiff’s cause of action for HIV
began to run on the date when plaintiff discovered the HIV-infection. The court reasoned
that an HIV infection–even if asymptomatic-“entails changes in and limitations to [one’s]
lifestyle” due to the necessity of taking steps to avoid further transmission and to begin
treatment to combat the virus’ rapid reproduction. Id. at 202.
We believe that Sheridan’s situation more closely resembles the facts in Simmons
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than those of Murray. Sheridan’s chronic scarring, like pleural thickening, is
asymptomatic. This holds true notwithstanding the distinction proffered by Sheridan
between pleural thickening and chronic scarring of the lungs, to wit, that pleural
thickening affects the membranes surrounding the lungs, not the lungs themselves. What
matters is not the location of the scarring, but rather whether or not the disease is
symptomatic. Where, as here, that critical showing has not been made, the distinction
relied on by Sheridan is without a difference. Furthermore, the dramatic changes in and
limitations to one’s lifestyle as a result of HIV, namely the need to avoid transmission and
obtain preemptive medical treatment, find no parallel with chronic beryllium disease, at
least with respect to Sheridan, who has not required any medical treatment or shown
substantial signs of progressive deterioration.
Upon careful review of the record, we conclude that Sheridan has failed to
establish a compensable injury under Pennsylvania law.1 Accordingly, we will AFFIRM
the District Court’s grant of summary judgment in favor of Cabot Corp.
1
Cabot also argues that the Pennsylvania statute of limitations bars Sheridan’s complaint.
Because we conclude that Sheridan has not suffered a compensable injury, we do not address that
issue.
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