holding plaintiff may file second or subsequent action for asbestos-related disease, as long as that action “is based on a separate and distinct [asbestos-related] disease which was not known to plaintiff at the time of his first action, and is filed within the applicable statute of limitations period” (emphasis added)
How later courts described this case
- holding plaintiff may file second or subsequent action for asbestos-related disease, as long as that action “is based on a separate and distinct [asbestos-related] disease which was not known to plaintiff at the time of his first action, and is filed within the applicable statute of limitations period” (emphasis added)
- “Moreover, because mesothelioma, in general, is so rare, ‘any case occurring after a well attested and substantial asbestos exposure is commonly accepted as being caused 57 by that exposure.’”
- adopting the two-injury rule in Pennsylvania
Written by the judges who cited it.
The opinion
Justice EAKIN,
concurring.
I join the Majority’s holding that the separate disease rule permits a plaintiff to file an action for a malignant asbestos-related disease, even if he previously filed an action for a different malignant asbestos-related disease, provided the second action is based on a separate, distinct disease not known to the plaintiff at the time of the first action. I write separately to express my view that the damages recoverable in the second action for the second malignant disease must also be separate and distinct from those recovered in the first action. While two lawsuits are permitted under the rule, two recoveries for identical damage resulting from each disease are not. A plaintiff must be able to *1191 establish the second disease caused damage that is distinct from that which was alleged in the first action. A second lawsuit cannot be used as a vehicle to recover damages he may have been unable to prove in the first one.
In all other respects, I join the Majority’s decision.
Justice BAER joins this concurring opinion.