Jurisdictional Statement — Rosenberg v. Johns-Manville Sales Corp.

8] "1615 itive - Supreme Court, U.S.

FILED

Supreme Court of the United States

October Term, 1981

IN THE MATTER OF JEANNE STEINHARDT, as

Executrix of JAMES McKEE, JR.,

Appellant,

vs.

JOHNS-MANVILLE CORPORATION, etal.,

Appellees.

On Appeal from the

New York Court of Appeals

JURISDICTIONAL STATEMENT

Lipsitz, Green, Fahringer,

Roll, Schuller & James

By: Frank S. Kedzielawa, Esq.

Attorney for Appellant

Office and Post Office Address

One Niagara Square

Buifalo, New York 14202

Telephone: (716) 849-1333

DATED: February 26, 1982

—————

QUESTION PRESENTED

If New York, and some of the other states, construe their

statute of limitations, when applied to latent and inherently

unknowable injuries like appellant’s asbestos disease, to run

from the date of inhalation or exposure and not the date when

any possible harm would be discoverable, have they satisfied the

minimum due process standards established by this Court that

state statutes of limitation: (1) provide a plaintiff with an

adequate, bona fide opportunity to commence the action, and

(2) are not inconsistent with the common law purposes behind

statutes of repose?

TABLE OF CONTENTS

Page

SN TUUINEED ccc cccscceccccessoccsecscece i

OIDs oc cccccdisccesscccccceosscees iti

PN sc cc ccnesecccascscivecesesccess ]

PR cd ncpcenecccccevacccesédsescsescees 2

Constitutional and Statutory Provisions Involved .... . 3

ATES 0 vc occncecccccescccseccencs 3

Te TRG oc ccccccccccccsecacsess 3

(ii) How the Federal Question was Raised and

BE. ccc ccsceccscsnccecescecces 6

The Question is Substantial ................-00055

Ss Si vecudeseecacocesseccccusncecesss 13

APPENDIX

Decision of New York State Court of Appeals ........ A-1

Decision of Appellate Division of State of New York ... — A-7

Decision of Special Term, Supreme Court, County of

SED, SUMNDGE FOO WOE c occ ccbccccsccccccceces A-9

Judgment of New York Court of Appeals............ A-17

Amendment to Remittitur by New York Court of Ap-

ED ot bh60566466.006066600scdcvenceseonese A-19

Notice of Appeal to United States Supreme Court ..... A-20

Order Extending Appellant’s Time to Docket Appeal... A-22

TABLE OF AUTHORITIES

Cases: Page

Associated Indemnity Corp. v. Industrial Accident

Comm., 124 Cal. App. 378, 381, 12 P.2d 1075, 1076 . 12

Atchafalaya Land Company vy. F.B. Williams Cypress,

Cig SEs SPEED cc cccccccccceescoscess 10

Basshom vy. Owens-Corning Fiberglass, 327 F.Supp.

eee CEES PUES cob ccdbdccccceceseecescaces

Borel vy. Fiberboard Paper Products, 493 F.2d 1076,

PP CME NOUNDs abc cecccccanceeseconses

Buckner v. GAF, 495 F Supp. 351 (E.D. Tenn. 1979). . 9

Canadian No. Ry. Co. v. Eggen, 252 U.S. 553, 562

No)

PEE hobs ede eeressccceccdcceecececessces 10, 11

Coyne v. Porter-Hayden Co., 428 A.2d 208 (Pa. Super.

REED cece ceerecdececscusesosccessoncces 9

Essex Wire Corp. v. M.H. Hilt Co., 263 F.2d 599 (7th

Me PEN 4 0964006066666 onde yee ccencscoeces 9

Fearson v. Johns-Manville Corp., 525 F.Supp. 671

MOE Sadek ceccccccccccesoscesecs 9

Harig v. Johns-Manville Corp., 284 Md. 70, 394 A.2d

POPUEEED S0Cb sede ecneceseneneececnseseeese 12

I.N.A. v. Forty-Eight Insulations, Inc., 451 F.Supp.

SOG DE, BPUED occ cccccccccccccccesces 9

Jackson v. Lamphire, 28 U.S. (3 Pet.) 280, 299 (1830) . . 13

Karjala v. Johns-Manville Corp., 523 F.2d 155 (&th Cir.

8 POPSET TTT ELC C TT TTT TUTTTT TT TeTTTT eT e

Layton v. Allen, 246 A.2d 794 (Del. Super. Ct. 1968). . .

Locke v. Johns-Manville Corp., 275 S.E.2d 900 (Va.

PE MEE 6 bn eh se dencetesecacccccvecesece 9

iv

Page

Louisville Trust Company v. Johns-Manville Corp., 580

PT CHUED co Rccvccccccsccccsccecaseess 9

Marig v. Johns-Manville Corp., 284 Md. 70, 394 A.2d

SPEED 6 CS bebseccecccdseuccececeseseness 9

Neubauer v. Owens-Corning Fiberglass, 504 F.Supp.

SS WE EEE c veccvecccecvesceséesuces 9

Nolan v. Johns-Manville Corp., 85 Ill.2d 161, 421 N.E.

DED Cc acecendeccceseedcisesdceceseses 9

Order of R.R. Telegraphers v. R.E.A., 321 U.S. 342

PEO TTT PeTTTTr TTT Tree ier 12

Raymond v. Eli Lily Co., 412 F.Supp. 1392 (N.H.

1976), aff'd 556 F.2d 628 (2d Cir. 1976) ........... 9

Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809 (2d Cir.

PPT TTT TTT TTI TTT TTT TTT TTT Tee 9

R.J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776

PG MED SnGebCdcceecccceetsoseeceesese 9

Schmidt v. Merchant's Despatch Transportation Co.,

270 N.Y. 287, 200 N.E. 824 (1936). ..........24-- 5

Schwartz v. Hayden Chemical Corp., 12 N.Y.2d 212,

237 N.Y.S.2d 714, 188 N.E.2d 142, rem. amended, 12

N.Y.2d 1073, 239 N.Y.S.2d 896, cert. denied, 374

PEED coccnccecescvecccsceceeassess 5, 6, 7

Strickland v. Johns-Manville Corp., 461 F.Supp. 215

SS DEE acdubeneceocncusesasencece 9

Terry v. Anderson, 95 U.S. 628 (1877). ........ 0.44. 10

Thornton v. Roosevelt Hospital, 47 N.Y.2d 780, 417

N.Y.S.2d 920, 391 N.E.2d 1002 (1979) ........... 5

Tyson v. Johns-Manville Corp., 399 So.2d 263 (Ala Sup.

REPT TT TITTT LETT TTT Tee )

Page

Urie v. Thompson, 337 U.S. 163 (1949) ........ 6, 7,9, 11,12

U.S. v. Kubrick, 44 U.S. 111 (1979). ........022eee 12

U.S. v. Morena, 245 U.S. 392 (1918) ..........00es 10

Velasquez v. Fibreboard Paper Products, 97 Cal.

App.3d 881, 159 Cal. Rptr, 113 (Ist Dist. 1979)..... 9

West v. Atlas Chemical Industries, Inc., 264 F.Supp.

GPE Gs BE TEED cc cccccccccccccvevcsseeces 9

Wheeler v. Jackson, 137 U.S. 245 (1890) ............ 10

Williams v. Borden, Inc. , 637 F.2d 731 (10th Cir. 1980) 9

Wilson v. Iseminger, 185 U.S. 55, 62 (1901). ......... 10

Statutes:

SO SED vce veecececcscesvccsececess 2

Pe Ce CUM SNOED cccccccccccccevese 2, 3, 5, 6, 7, 8, 9, 13

Other Authorities:

Birnbaum, “First Breath’s” Last Gasp: The Discovery

Rule in Products Liability Cases, 13 Forum 279 (1977)

PUTTITITTTT TUL TTT TTT TT LTT TTT 8

Bruck, The Armies of Asbestos, The American Lawyer,

November, 1979 at p. 19 .......ccceccccssceces 8

Hearings on Asbestos Related Occupational Diseases

before a Subcommittee of the House Committee on

Education and Labor, 95th Cong. 2d Sess. 1-4, 52-128

TTT TTITTT TTT TTT TTT TTT TTT TTT 4,8, 12

Kelner, Asbestos Litigation: An Update, Vol. 182

N.Y.L.J. No. 51, p. 1, col. 1 (Sept. 12, 1979). ...... 7

vi

Library of Congress Congressional Research Services,

96th Cong. 2d Sess., Report of Six Case Studies of

Compensation for Toxic Substance Pollution (Comm.

7B McKinney's New York CPLR 214 (a)............

7B McKinney's New York CPLR §214, C214:6 at p.

437, Practice Commentary by J. McLaughlin. ..... .

Motley, The Causal Relation Discovery Rule, | J. of

Products Liability 221, 229(1977) ...............

Note, 45 Albany L.Rev. 717 (1981) ..............4.

Note, Asbestos Litigation 7 Fordham Urban L.J. 55, 77-

EERE COLO OT TTT ELUTE TET E TO TT ETE

Note, Developments in the Law of Statutes of

Limitations, 63 Harv. L. Rev. 1177, 1200, 1203-07

The Magic Mineral, New Yorker Magazine October 12,

EET TTC TTTETETELTETTT ETT T Tee

Page

1

In The

Supreme Court of the United States

October Term, 1981

No.

IN THE MATTER OF JEANNE STEINHARDT, as

Executrix of JAMES McKEE, JR.,

Appellant,

vs.

JOHNS-MANVILLE CORPORATION, etal., ;

Appellees.

On Appeal from the

New York Court of Appeals

JURISDICTIONAL STATEMENT

OPINIONS BELOW*

The opinion of the New York Court of Appeals, which ap-

pears in the Appendix hereto, see infra at p. A-1, is reported at

54 N.Y.2d 1008, N.Y.S.2d , N.E. 2d = (1981). An

*The full names of all of the appellees are as follows:

Johns-Manviile Cui poration,

Eagle Picher Industries, Inc.,

Phillip Carey Industries, Inc.,

Owens-Corning Fiberglass Corporation,

Armstrong Cork Company,

Fibreboard Paper Products Corp.,

Unarco Industries, Inc.,

Armstrong Contracting and Supply Corp.,

Standard Asbestos Manufacturing and Insulating Company,

Keene Insulation Company,

Rockwell Manufacturing Company, and

GAF Corporation.

amendment to its remittitur noting its adjudication of the

constitutional issues raised below appears in the Appendix,

infra at p. A-19. This does not yet appear in the official

reporter, or in unofficial reporters.

The decision of the intermediate appellate court appears at 78

A.D.2d 577, 432 N.Y.S.2d 422 (4th Dept. 1980). The decision

of the Special Term (i.e., motion term) of the Supreme Court,

Erie County, New York, appears at 94 Misc.2d 327, 404

N.Y.S.2d 814 (1978). It is reported sub nom McKee v. Johns-

Manville Corp.

JURISDICTION

This suit is one in which the highest court of the State of New

York sustained the constitutionality of a state statute, N.Y.

CPLR 214(5), as interpreted and applied to this action. The

jurisdiction of this court is therefore invoked under 28 U.S.C.

§$1257(2).

The judgment of the New York Court of Appeals dismissing

appellant’s complaint was entered on October 29, 1981. See

infra at p. A-17. A motion to amend the remittitur was made by

appellant and granted on December 22, 1981. See infra at p. A-

19.

A notice of appeal to this court was timely filed in the New

York Court of Appeals and with the clerk of the Supreme Court,

Erie County, the court then possessed of the record. The notice

of appeal was filed on December 10, 1981.

This appeal is being docketed on February 26, 1982, pur-

suant to an order extending the time within which to docket this

appeal granted by the Hon. Justice Thurgood Marshall dated

December 28, 1981. See infra at p. A-22.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fourteenth Amendment, §1, of the United States Con-

stitution:

[Nor shall ary State deprive any person of life, liberty

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

“ae a

New York CPLR 214(5):

The following actions must be commenced within

three (3) years:

(5) An action to recover damages for a personal injury

except as provided in §§214-(b) and 215.

STATEMENT OF THE CASE

(i) Nature of the Case

This is an action in negligence and strict products liability

against the major manufacturers, suppliers and distributors of

asbestos-containing insulation products in the United States.

The complaint alleges that each defendant knew for many years

of the hazards of inhalation of asbestos dust and particles; that

asbestos workers like the late James McKee had no knowledge

or appreciation of the severe hazards of asbestos exposure; that

rather than inform McKee and his fellow workers of these

known dangers, the Johns-Manville Corporation and its co-

defendants chose to remain silent. Their silence permitted

McKee, like many others, to use their products and inhale

asbestos particles in ignorance of the accompanying health risks

and without adequate preventive measures against these known

and suspected health hazards. The proximate result of this

failure to warn was his total and permanent disability from

asbestosis and his eventual death from mesothelioma. The

action is now brought by his daughter, Jeanne Steinhardt, as

executrix of his estate.

The issue of industry awareness has been litigated and

reviewed in reported federal and state decisions. It has been the

subject of congressional investigations. The most succinct of

these is Borel v. Fiberboard Paper Products, 493 F.2d 1076,

1083-86, nn.3-16 and accompanying text (5th Cir. 1973); also

see, Hearings on Asbestos Related Occupational Diseases

before a Subcommittee of the House Committee on Education

and Labor, 95th Cong. 2d Sess. 1-4, 52-128.

Not everyone who inhales asbestos dust subsequently

develops an asbestos disease. If one of these diseases (asbestosis

or mesothelioma)! does develop, however, ‘‘it does not manifest

itself until 10 to 25 or more years after initial exposure . . . . By

the time the disease is diagnosable a considerable period of time

has elapsed since the date of the injurious exposure.’ Borel, 493

F.2d at 1083.

James McKee had been employed in asbestos insulation work

from 1939 to 1972. His last occupational exposure to asbestos

was in 1970. He retired in 1972 because of respiratory ailments.

No diagnosis of asbestos disease was made, nor was possible,

until March of 1973 when a positive biopsy was obtained. In

1978 he died of mesothelioma.

From his first hospitalization in 1968 until the diagnosis of

asbestosis was made in 1973, his physician could only report —

The disease of asbestosis is a scarring of the lung tissue, a fibrotic in-

duration where the lung loses its flexibility or pliability — its ability to

expand or contract. It hardens and becomes wood-like.

The disease of mesothelioma is medically distinguished from lung cancer.

It is a tumerous carcinoma (malignancy) of either the membrane encasing

the lung (pleura) or of a similar delicate membrane lining the abdominal

cavity (peritoneum). Generally its latency period is 30 years and is nearly

always fatal 8-14 months after the cancer first appears.

“I found he had a pulmonary infection ... he had nothing

different from my average patient, who comes in with a

pulmonary infection in the City of Buffalo, where there is a lot

of pollution.”? Lung biopsies were entirely negative until the

1973 diagnosis.

This action was commenced in the New York State Supreme

Court within three years of that diagnosis. The appellees

engaged in pre-trial discovery procedures. Before appellant

initiated his discovery activities, appellees moved to dismiss the

action as barred by New York’s three-year statute of

limitations, CPLR 214(5).

New York does not embrace a discovery rule beyond the

medical malpractice foreign object context. See 7B McKinney's

New York CPLR 214-a. Negligence and strict products liability

actions accrue when the injury occurs and not when it is first

discoverable. In this context, appellees urged, the injury occurs

at the time of inhalation or exposure. Schmidt v. Merchant's

Despatch Transportation Co., 270 N.Y. 287, 200 N.E. 824

(1936); Schwartz v. Hayden Chemical Corp., 12 N.Y.2d 212,

237 N.Y.S.2d 714, 188 N.E.2d 142, rem. amended, 12 N.Y.2d

1073, 239 N.Y.S.2d 896, cert. denied 374 U.S. 803 (1963);

Thornton v. Roosevelt Hospital, 47 N.Y.2d 780, 417 N.Y.S.2d

920, 391 N.E.2d 1002 (1979).

In response appellant argued that this interpretation of

CPLR 214(5) is an unconstitutional denial of due process of the

law in its disregard of long established precedents by this Court

which set forth minimum standards of due process fairness

applicable to all state statutes of limitations and in the more

specific context of latent diseases.

2Examination Before Trial of P. Longstreth, M.D., at p. 412 of the record

before the New York Court of Appeals.

6

(ii) How the Federal Question was Raised and

Adjudicated Below.

Appellees moved to dismiss the negligence and products

liability actions as barred by the applicable state statute of

limitations, New York CPLR 214(5). The constitutional issue

was briefed and orally argued before a motion term of the

Supreme Court, Erie County. The issue was also presented,

indirectly, in appeilant’s counsel's affidavit, paragraph 22,

submitted in opposition to that motion.

The court indirectly ruled upon the constitutional claim in

barring the negligence cause of action. In so ruling it relied in

part upon the authority of Schwartz v. Hayden Chemical Corp..,

12 N.Y.2d 212, 237 N.Y.S.2d 714. New York Court of Appeals

Chief Judge Desmond and Associate Judge Fuld had dissented

in Schwartz upon the constitutional issue and cited this Court's

decision in Urie » Thompson, 337 U.S. 163 (1949), upon which

appellant heavily relied.

The court denied appellees’ motion as to the products liability

action; thus there was no adjudication of the constitutional

claim as to that cause of action. See infra at p. A-9 to A-16.

The same issue was briefed and argued orally before the

Appellate Division of the Supreme Court. In a per curiam

decision, the Appellate Division granted appellees’ motions to

bar the products liability action, thus rejecting appellant's

constitutional claim against barring that cause of action. For

support the Appellate Division also drew upon, in part,

Schwartz v. Hayden Chemical Corp. See infra at p. A-7.

When the appeal was brought before the New York Court of

Appeals, appellant reiterated her constitution.:! ciaims during

oral argument and in her brief. In choosing to leave any change

in CPLR 214(5) to the state legislature, the majority opinion

made no specific reference to this claim, but merely stated —

“*We have considered plaintiff's other contentions and find them

to be without merit.”’ See infra at p.A-3.

Associate Judge Fuchsberg, however, wrote in dissent that

the present application and interpretation of §214(5) is un-

constitutional, citing the dissent in Schwartz that, “* ‘it would be

unreasonable and perhaps unconstitutional to hold that time to

sue expired before it was possible for plaintiff to learn of the

wrong.’ ” See infra at p.A-5. And for further support he, too,

drew upon this court’s reasoning in Urie v. Thompson, 337 U.S.

at 170, that any such interpretation given to a statute of

limitations, as has been done here, cannot be reconciled with the

traditional purposes of statutes of limitation.

And in granting appellant’s subsequent motion to amend the

remittitur, the New York Court of Appeals noted, “there was

presented and necessarily passed upon a question under the

constitution of the United States, . . . .”” See infra at p.A-19.

THE QUESTION IS SUBSTANTIAL

The question presented is substantial because the in-

terpretation given §214(5) by the New York Court of Appeals ic

in bold disregard of precedent after precedent by this Cour

establishing the minimum due process standards for all staie

statute of limitations and when applied in identical factual

circumstances as presented by this appeal.

The question presented is substantial, then, first of all

because it offers to this Court a real and direct conflict with an

unbroken line of precedent in this Court.

Its substantial nature is further reflected in the noteworthy

character of the question. Preeminent procedural authorities in

New York have focused significant attention on this con-

stitutional question. See 7B McKinney’s New York CPLR

§214, C214:6 at p.437, Practice Commentary by J.

McLaughlin; Note, Asbestos Litigation 7 Fordham Urban L.J.

55, 77-83 (1978); Kelner, Asbestos Litigation: An Update,

Vol.182 N.Y.L.J. No. 51, p.1, col.1 (Sept. 12, 1979); Note, 45

Albany L.Rev. 717 (1981).

And the unconstitutional character of such interpretations of

statutes of limitations has captured the attention of bench and

bar nationwide.’ Motley, The Causal Relation Discovery Rule

(constitutional attacks on statute of limiiations), 1 J. of

Products Liability 221, 229 (1977); Note, Developments in the

Law of Statutes of Limitation, 63 Harv.L. Rev. 1177, 1200,

1203-07 (1963); Bruck, The Armies of Asbestos, The American

Lawyer, November, 1979 at p.19; Birnbaum, ‘‘First Breath’s”

Last Gasp: The Discovery Rule in Products Liability Cases, 13

Forum 279, 282 (1977).

But the question presented is substantial not only in terms of

content, however, but also in terms of the number of citizens in

the State of New York, and elsewhere, who must suffer similar

constitutional deprivations. There are thousands of asbestos

insulation workers throughout New York State and not one of

them has ever been able to timely file suit. And in view of the

latent nature of the injury, thousands of New York asbestos

workers exposed in the 1940’s-60's will attempt suit in future

years. Section 214(5) will not permit one of them inside the

courthouse door. Their due process rights to have at least a

reasonable, meaningful time within which to pursue their

common law negligence actions are being wholly frustrated by

the lower court’s decision to sustain the constitutionality of

§214(5) as presently interpreted and applied, notwithstanding

the constitutional perimeters for state statutes of limitations

previously established by this Court, discussed infra.

3The issue of industry awareness and the hazards of asbestos exposure, and

financial compensation for its victims, are of real and present concern to the

public and the Congress. See, Hearings on Asbestos Related Occupational

Diseases Before A Subcommittee of the House Committee on Education

and Labor, 95th Cong. 2d Sess. 1-4, 52-128; Library of Congress

Congressional Research Services, 96th Cong. 2d Sess., Report of Six Case

Studies of Compensation for Toxic Substance Pollution (Comm. Print

1980); The Magic Mineral, New Yorker Magazine, October 12, 1968 at p.

117.

Full review and consideration by this court would resolve the

issue not only for those thousands of New York citizens, but

indeed for hundreds of thousands. of asbestos workers in those

few other states who,* like New York, have failed to satisfy their

constitutional responsibility to fashion a statute of limitations

rule that affords a reasonably diligent plaintiff realistic access to

the courthouse door.

The due process deprivation here is twofold. First, the ap-

plication given §214(5) in this factual context is at odds with the

very raison d'etre for statutes of limitations, as this Court

concluded under identical circumstances in Urie v. Thompson,

337 U.S. 163. If a rule is at odds with its very purpose, it is

irrational and therefore unconstitutional.

4See e.g., Neubauer v. Owens-Corning Fiberglass, 504 F.Supp. 1210 (E.D.

Wis. 1981) applying Wisconsin law; also see Basshom v. Owens-Corning

Fiberglass, 327 F.Supp. 1007 (N.M. 1971). Nearly every other state,

however, has satisfied its constitutional duty in framing rational and

reasonable statutes of limitation for inherently unknowable injuries. See

Tyson v. Johns-Manville Corp, 399 So.2d 263 (Ala Sup. C 1981);

Velasquez v. Fiberboard Paper Products, 97 Cal. App.3d 881, . * Cal.

Rptr. 113 (1st Dist. 1979); Ricciuti v. Voltarc Tubes, Inc., 277 F.2¢ + 9 (2d

Cir. 1960) (Conn.); Layton vy. Allen, 246 A.2d 794 (Del. Super. Ct. 1968);

Fearson v. Johns-Manville Corp., 525 F.Supp. 671 (D.C. D.C. 1981);

~ Nolan v. Johns-Manville Corp., 85 1.2d 161, 421 N.E.2d 864 (1981);

Essex Wire Corp. v. M.H. Hilt Co., 263 F.2d 599 (7th Cir. 1959) (Ind.);

Kan. Stat. Ann. §60-513 (1964); Louisville Trust Co. v. Johns-Manville

Corp., 580 S.W.2d 497 (1979); R.J. Reynolds Tobacco Co. v. Hudson, 314

F.2d 776 (Sth Cir. 1963) (La.); Marig v. Johns-Manville Corp., 284 Md.

70, 394 A.2d 299 (1978); Karjala v. Johns-Mansville Corp., 523 F.2d 155

(8th Cir. 1975); West v. Atlas Chemical Industries, Inc., 264 F Supp. 697

(E.D. Mo. 1966); Raymond v. Eli Lily Co., 412 F.Supp. 1392 (N.H. 1976),

aff'd 556 F.2d 628 (2d Cir. 1976); Williams v. Borden, Inc., 637 F.2d 731

(10th Cir. 1980) (Okl.); Coyne v. Porter-Hayden Co., 428 A.2d 208 (Pa.

Super. Ct. 1981); Buckner v. GAF, 495 F.Supp. 351 (E.D. Tenn. 1979);

Strickland v. Johns-Manville Corp., 461 F Supp. 215 (C.S.D. Texas 1978);

Locke v. Johns-Manville Corp., 275 S.E.2d 900 (Va. Sup. Ct. 1981); ¢.f.

I.N.A. v. Forty-Eight 'sulations, Inc., 451 F.Supp. 1230 (E.D. Mich.

1978).

10

Secondly, as this Court has repeatedly held, state statutes of

limitation must provide the plaintiff with an adequate, bona

fide opportunity to bring suit.

It may be properly conceded that statutes of limitation

must proceed on the idea that the party has full op-

portunity afforded him to try his right in the courts.

Wilson v. Iseminger, 185 U.S. 55, 62 (1901) (emphasis sup-

plied). And again in Canadian No. Ry. Co. v. Eggen, 252 U.S.

553, 562 (1920) (emphasis added) the same principle was

sounded:

A man cannot be said to be denied, in a constitutional

or in any rational sense, the privilege of resorting to

courts to enforce his rights when he is given free access to

them for a length of time reasonably sufficient to enable

an ordinarily diligent man to initiate proceedings for

their protection.

The Court, “has often decided that statutes of limitation

affecting existing rights are not unconstitutional, if a reasonable

time is given for the enforcement of the action before the bar

takes effect."’ Terry v. Anderson, 95 U.S. 628, 633 (1877).

Reasonableness is determined in view of the subject matter.

U.S. v. Morena, 245 U.S. 392, 397 (1918). As Mr. Justice

Harlan wrote in Wheeler v. Jackson, 137 U.S. 245, 255 (1890)

(emphasis supplied):

It is the settled doctrine of this Court that the

legislature may describe a limitation for the bringing of

suits where none previously existed, as well as shorten

the time within which suits to enforce existing causes of

action may be commenced, provided, in each case, a

reasorable time, taking all the circumstances into

consideration, be given... .

Cf. Atchafalaya Land Company v. F.B. Williams Cypress, Co.,

258 U.S. 190 (1922).

All of the circumstances surrounding latent diseases like

asbestosis and silicosis were taken into account by this Court in

11

Urie v. Thompson, 337 U.S. 163. The Court made it quite clear

that these due process standards are not satisfied by a date of

exposure/ inhalation rule; that the date of inhalation or exposure

rule in actions to recover for latent diseases does not afford the

plaintiff, ‘‘a length of time reasonably sufficient to enable an

ordinarily diligent man to initiate (his) proceedings ... .”

Canadian No. Ry. Co. v. Eggen, 252 U.S. at 562.

To embrace appellees’ reasoning, this Court ruled, ‘“would

mean that at some past moment in time, unknown and

inherently unknowable even in retrospect, Urie was charged

with knowledge of the slow and tragic disintegration of his

lungs; under this rule Urie’s failure to diagnose within the

applicable statute of limitations a disease whose symptoms had

not yet obtruded on his consciousness would constitute waiver of

his right to compensation at the ultimate day of discovery and

disability.”’ Urie, 337 U.S. at 169.

And although the Court in Urie was construing a statute of

limitations under the Federal Employers’ Liability Act, its

decision rested not upon anything peculiar to that legislation,

but upon the unfair consequences that would attach, “to

blameless ignorance.” Id., at 170. Such consequences would be

at odds with the traditional common law purposes behind

statutes of repose:

Nor do we think these consequences could be

reconciled with the traditional purposes of statutes of

limitation, which conventionally require the assertion of

claims within a specified period of time after notice of the

invasion of legal rights.

Id. (emphasis added).

Thus in Urie the Court borrowed language from a California

Workers Compensation decision which, “‘seems to us applicable

in every relevant particular. . . .”’ Id.

In the context of latent diseases, this plaintiff's injury is,

** ‘the product of a period of time rather than a point in time,’ ”

12

and that, “* ‘no specific date of contact with the substance can be

charged with being the date of injury.’ ’’ Id.

The obvious result, then, for any statute of limitations,

whether for common law actions or statutory programs which

seek recovery for latent and inherently unknowable injuries is

that, “the affected (plaintiff) can be held to be ‘injured’ only

when the accumulated effects of the deleterious substances

manifest themselves.” Urie, 337 U.S. at 170 quoting Associated

Indemnity Corp. v. Industrial Accident Comm., 124 Cal. App.

378, 381, 12 P.2d 1075, 1076.5

Early in this court’s history it recognized the need for its

intervention into the field of state statute of limitations where

the statutory time provided, the manner of its application, or

the definition of when such limitations begin, are so

unreasonable as to amount to a denial of due process premised

on essential notions of fairness.

The time and manner of their operation, the ex-

ceptions to them, and the acts from which the time limit

shall begin to run will generally depend on the sound

discretion of the legislature, .... Cases may occur

There is no danger that the plaintiff will sleep on his rights, for he has no

notice that his rights have been invaded until the latent disease first

manifests itself. And as court after court has noted in adjudicating claims

against the asbestos industry, there is no significant danger here that time

has faded memories, evidence has been lost or witnesses have disappeared.

as cautioned by the Court in Order of R.R. Telegraphers v. R.E.A., 321

U.S. 342, 349 (1944). See e.g., Harig v. Johns-Manville Corp., 284 Md. 70,

394 A.2d 299, 302 (1978). The documents produced by discovery in

nationwide litigation against this industry and by congressional in-

vestigations have provided adequate insurance against any such unfairness

to these defendants. See Hearings, n.3, supra.

This appeal does not present the case where a plaintiff is ignorant of his

legal right to commence an action, see, e.g., U.S. v. Kubrick, 444 U.S. 111

(1979), but is, instead, the case of a plaintiff whose injury is unknowable

until manifestation and where, “the facts about causation may be in the

control of the putative defendant, unavailable to the plaintiff or at least very

difficult to obtain.” Id., at 122.

13

where the provisions of a law in those subjects may be so

unreasonable as to amount to a denial of a right, and call

for the interposition of the court; . . . .

Jackson v. Lamphire, 28 U.S. (3 Pet.) 280, 290 (1830).

Therefore, plenary review should be given this direct defiance

of Supreme Court precedent. New York’s CPLR 214(5), as

applied in the context of inherently unknowable injuries, must

be realigned into conformity with constitutional precedent. It is

important not only to this appellant, but to thousands like him

accross the State of New York and, indeed, to many asbestos

workers in other states which also have failed to meet their

constitutional responsibilities. See n.4, supra.

Diversity among the siates there must always be, especially in

an area of traditional state concerns; but when a number of our

states fail to accord its citizens their due process rights which

have been firmly established by this Court in the form of general

guidelines for fashioning rules for statutes of repose, there is

then presented a serious and substantial issue soluble only by

this Court.

CONCLUSION

For these reasons, this Court should note probable

jurisdiction of this appeal.

Respectfully submitted,

Lipsitz, Green, Fahringer,

Roll, Schuller & James

By: Frank S. Kedzielawa, Esq.

Attorney for Appellant

Office and Post Office Address

One Niagara Square

Buffalo, New York 14202

Telephone: (716) 849-1333

DATED: February 26, 1982