54 N.Y.2d 1008 (1981)

In the Matter of Jeanne Steinhardt, as Executrix of James McKee, Jr., Deceased, Appellant, v. Johns-Manville Corporation et al., Respondents. Stanley Rosenberg et al., Appellants, v. Johns-Manville Sales Corporation et al., Respondents. Jerome Brenner et al., Appellants, v. Johns-Manville Sales Corporation et al., Respondents. Dorothy Cohen, as Administratrix of The Estate of Emanuel Cohen, Deceased, Appellant, v. Johns-Manville Products Corporation et al., Respondents. Rose Failla, as Administratrix of The Estate of Vincent Failla, Deceased, Appellant, v. Johns-Manville Products Corporation et al., Respondents. Joseph Ferrarese et al., Appellants, v. Johns-Manville Sales Corporation et al., Respondents. Rose Weinberg, as Administratrix of The Estate of Albert Weinberg, Deceased, Appellant, v. Johns-Manville Products Corporation et al., Respondents.

Court of Appeals of the State of New York.

Decided October 29, 1981.

Attorney(s) appearing for the Case

Frank S. Kedzielawa, Carl A. Green and James W. Kirkpatrick for appellant in the first above-entitled action.

Norman J. Landau for appellants in the second through seventh above-entitled actions.

Lawrence T. D'Aloise and Daniel T. Roach for Johns-Manville Corporation and others, respondents.

Thomas F. Segalla for Fibreboard Paper Products Corp., respondent.

Alexander C. Cordes and Paul F. Jones for GAF Corporation and others, respondents.

Robert M. Kiebala for Eagle-Picher Industries, Inc., respondent.

Gordon D. Tresch for Owens-Corning Fiberglass Corporation, respondent.

Sheldon Hurwitz for Armstrong Cork Company, respondent.

Franklin N. Meyer for Raybestos-Manhattan, Inc., respondent.

Michael Majewski and Joseph D. Ahearn for Southern Asbestos Co. and another, respondents.

James J. Lysaght for Colt Industries, Inc., respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, and WACHTLER concur in memorandum; Judge MEYER concurs on constraint of Thornton v Roosevelt Hosp. (); Judge FUCHSBERG dissents and votes to reverse in an opinion.


The orders of the Appellate Division should be affirmed, with costs.

Plaintiffs in these actions, asserting injuries caused by the inhalation of asbestos particles, each commenced his action more than four years after their or their decedents' last employment-related exposure to asbestos. In Schmidt v Merchants Desp. Transp. Co. (270 N.Y. 287), where the plaintiff alleged that the inhalation of dust while in the defendant's employ caused him to contract the disease known as pneumoconiosis, this court held that the statutory period of limitations began to run when the plaintiff inhaled the foreign substance. This principle was later reaffirmed in Schwartz v Heyden Newport Chem. Corp. (12 N.Y.2d 212, cert den 374 U.S. 808), involving a compound inserted into the plaintiffs' sinuses for the purpose of making them more perceptible in x-ray examination. Accordingly, if this rule is still controlling, each of the causes of action brought by plaintiffs is barred by the Statute of Limitations. Plaintiffs now urge, however, that the Statutes of Limitations applicable to their cases should not run from the date of the last exposure to the invading substance, but rather from the date on which the asbestos-related disease was or could have been discovered. We are unable to adopt this proposed standard, and we reaffirm the principle announced in Schmidt and followed in Schwartz. Only recently, in Thornton v Roosevelt Hosp. (47 N.Y.2d 780), where it was alleged that a thorium dioxide substance manufactured by the defendant and injected into the deceased plaintiff resulted in the onset of cancer, we held that "the cause of action accrued at the time of invasion of decedent's body, and not at the time" the condition became apparent. There, we noted that further extension of the limited discovery provision contained within the CPLR (214-a) was a matter best reserved for the Legislature, and not for the courts.* We believe it to be inappropriate and injudicious to intrude into an area best suited for legislative scrutiny. We have considered plaintiffs' other contentions and find them to be without merit.

FUCHSBERG, J. (dissenting).

The orders appealed from in these cases should be reversed and the motions for summary judgment denied.

Once again we are confronted with a determination that plaintiffs who, alleging tortious wrongdoing as a result of which they were injured, are held to have been barred by the Statute of Limitations before they learned or could have learned that they had sustained the injuries of which they complain.

Though to state this proposition would appear to be to refute it, the majority, under what it takes to be the restraint of three cases, Schmidt v Merchants Desp. Transp. Co. (270 N.Y. 287), Schwartz v Heyden Newport Chem. Corp. (12 N.Y.2d 212) and, most recently, Thornton v Roosevelt Hosp. (47 N.Y.2d 780), a decision in which I filed a dissent, in effect upholds it.

In my view, the cases cited are too confusing and contradictory to support such a result. For example, in Schmidt, though the court held that dust which produced a disease of the lungs set off the running of the statute when it was ingested rather than when the injury came to the fore, the court, inexplicably, also proclaimed (at p 300) that "There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury" (emphasis added). Further, in the relatively short time which has elapsed since Thornton was decided, the Legislature already has issued policy pronouncements that cut across the legal philosophy they bespoke.* In such circumstances, the vitality of Judge-made law depends in no small measure upon a readiness to have the judiciary, and not the Legislature, as Thornton and the majority memorandum in this case suggest, make its own corrections.

The underlying principle is hornbook law. As Dean Prosser put it, "the statute of limitations does not begin to run against a negligence action until some damage has occurred" (Prosser, Law of Torts [4th ed], p 144). Or, as was acknowledged with apparent reluctance in Schwartz, "Since, then, the recognized damages in negligence cases are pain and suffering, loss of earnings and, we suppose, damage to the structure of the body, it is questionable whether any cause of action exists before these things actually happen" (Schwartz, supra, at p 217).

In this court, contrary rulings have troubled its Judges, and, ultimately, have been repudiated by the court as a whole. So, in Schwartz, itself, a strong dissent by Chief Judge DESMOND and Judge (later Chief) Judge FULD left no room for misunderstanding when it warned that "it would be unreasonable and perhaps unconstitutional to hold that his time to sue expired before it was possible for him to learn of the wrong" (Schwartz, supra, at p 219). And, the clarion clear comment that "it is all but unthinkable that a person should be time-barred from prosecuting a cause of action before he ever had one", first made by Judge (later Chief Judge) BREITEL in dissent in Mendel v Pittsburgh Plate Glass Co. (25 N.Y.2d 340, 346), was later to be adopted by the whole court in Victorson v Bock Laundry Mach. Co. (37 N.Y.2d 395, 401).

Guided by these beacons, I now turn to the opposing positions on which summary judgment turned. The defendants' needs no elaboration; it is simply that the actions arose when each of the plaintiffs breathed the asbestos-laden air, that is, at the time of exposure. If this contention is credited, of course, the wrongful conduct and ensuing damages for all practical purposes would have been simultaneous. But the plaintiffs do not agree; they insist that the scientific facts are at odds with this unified concept. Pointing to medical authority, they contend that, while the unwanted invasions of their lungs by environmental air which had been contaminated by asbestos dust are the wrongful acts to which they were subjected, the damages they sustained were in the form of diseases which did not come about until much later. From this exposition, the diseases, asbestosis and mesothalioma, the latter a cancer of the mesothelial cells which surround the organs of the chest cavity, are said to be consequential, as distinguished from immediate, in their temporal character (see, also, Urie v Thompson, 337 U.S. 163, 170 ["consequences of the exposure are the product of a period of time rather than a point of time"]).

The plaintiffs go on to assert that the properties of particles of asbestos are such that their inhalation will not necessarily result in the contraction of the disease; that, unlike chemical compounds, the particles do not break down into reactive elements when lodged in the body; that those who are exposed may never sustain any injury at all; that, even if a cancerous tumor later forms, it will not have begun to do so at the time of exposure; that, before such an event will occur, the asbestos may lay dormant for years; and that the future time when it may develop is unpredictable.

In this apposition the Statute of Limitations question is not one presenting a choice, as the majority would have it, between the times of inhalations and the times of discovery of the subsequent disease. Were that so, absent a discovery rule, the defendants' motions would indeed have had to have been granted. But, since the issue of fact fleshed out by the motions instead left it a case of dates of inhalation versus dates when the damaging disease came into existence, the question was one for triers of fact.

It follows that the orders of the Appellate Division must be reversed and the cases remitted for trial on the merits.

Order affirmed.


* As the dissent recognizes, the Legislature has acted but has so far gone no further than "Agent Orange" cases.
* In amending CPLR 214, which details the various Statutes of Limitations, the Legislature, at its last regular session, included the following statements in its formal legislative findings: "It was never the intent of the legislature in imposing limitations, to foreclose the citizens of this state from prosecuting legitimate claims, provided such claims are diligently and expeditiously pursued. An exception to the general period of limitation rule is required when the pathological effect of an injury occurs without perceptible trauma, and the victim is blamelessly ignorant of the cause of the injury" (L 1981, ch 266).

True, in the compromising fashion of legislative bodies (see O'Malley v Macejka, 44 N.Y.2d 530, 533-534), these declarations were made applicable to "Agent Orange" cases alone. But, as with other social catalysts, what it accelerated was a return in this area to the mainstream of legal thought.


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