Nancy Cassese Monte ("appellant") appeals from an order of the United States District Court for the Eastern District of New York, dated December 29, 1989, Charles P. Sifton, Judge, which granted defendants'
Appellant's husband, Albert J. Cassese, was exposed to asbestos while employed at the Brooklyn Navy Yard from 1938 to 1947. Mr. Cassese died of asbestosis on November 26, 1947. It is undisputed that the decedent was exposed to asbestos materials through at least June 1945, a time within three years of his death.
Appellant seeks to revive this wrongful death action pursuant to Section 4 of the New York Toxic Tort Reform Act of 1986 (the "revival statute"). Ch. 682, L.1986, § 4, reprinted in 1 McKinney's Session Laws of New York 1567 (West 1986). The revival statute allowed plaintiffs a one-year period in which to bring certain claims arising
Appellant contends that most of her husband's exposure to asbestos occurred prior to November 26, 1944, that is, more than three years before his death and that the bulk of the exposure occurred outside of the three-year limitation period then applicable to wrongful death actions. Stressing that only six to seven months of exposure had occurred within the three year limitation period, appellant argues that at the time of decedent's death in November 1947, the only possible claim available to appellant would be based on a few months of exposure. Appellant further maintains that under the prevailing law in 1947, it would have been impossible for her to commence a wrongful death action because she could not have alleged, in good conscience, that a few months of exposure had proximately caused decedent's death or shortened his life. In other words, she claims that the action could not have been brought in 1947.
1. Appellant's action not time-barred at time of death
Under the law of New York as it existed in 1947,
2. The scope and purpose of the revival statute
The basic principle that actions for negligence or wrongful death accrue at the time of last exposure to inhalable toxic substances appears to have existed unaltered until the revival statute intervened. See Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297 (1981), cert. denied, 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840 (1982); Ward v. Desachem Co., 771 F.2d 663, 666
Appellant has misconstrued the purpose, as well as the scope, of the revival statute. The intent of the revival statute is to provide some relief to persons exposed to toxic substances, or their representatives, where the latent effects of such exposure did not manifest themselves until many years after the date of last exposure. See Memorandum of Senator Stafford, supra. The statutory exclusion of claims that were "not barred ... and could have been brought pursuant to section 5-4.1 of the estates, powers and trust law" is a single reference to the provision of New York law which allows representatives an additional two years from the date of death to bring claims which the statute of limitations had not barred as of the date of death. N.Y. Est. Powers & Trusts Law § 5-4.1 (McKinney 1963). In Greene v. Abbott Laboratories, 137 Misc.2d 424, 426, 521 N.Y.S.2d 382, 384 (1987) aff'd 148 A.D.2d 403, 539 N.Y.S.2d 351 (1st Dep't 1989), in which decedent's representatives were barred from reviving a claim even though they could not have known that they had a viable claim at the time of decedent's death, the court found "[t]he `could have been brought' limitation refers to the timeliness of the action and not to the state of knowledge during the relevant time period."
Appellant argues revival of her claim based on an assumption that a 1947 court would have concluded that exposure to asbestos in the three year period before death could not have caused any shortening of her husband's life span. Therefore, she argues, a 1947 court would have considered the injury "complete" prior to the three year limitation period. These assumptions are unsupported. As is made clear in Pieczonka v. Pullman Co., 89 F.2d 353 (2d Cir.1937), Wright v. Carter Products, Inc., 244 F.2d 53 (2d Cir.1957), and Aranoff v. Winthrop Laboratories, 102 A.D.2d 736, 476 N.Y.S.2d 571 (1984), whether effects of exposure to toxic substances are cumulative, and to what extent, are fact issues ordinarily requiring competent medical proof at trial. In Greene, the Appellate Division, First Department, held that if the legislature had intended the revival statute to address the state of technical or scientific knowledge at the time of the alleged wrongful death, it would have used language drafted expressly to tie the definition of accrual of the action to discovery of the injury. Greene, supra, 148 A.D.2d at 405, 539 N.Y.S.2d at 353. The New York legislature did not intend to require trials, for revival statute purposes, on the state of medical knowledge in earlier years, whether such knowledge relates to post-limitations period discovery of causation, as in Greene, or pre-limitations period causation of damage, as in the present case.
It is clear that appellant's action was not time-barred in 1947. The action "could
Decedent's exposure to asbestos occurred within three years of his death and appellant's wrongful death claim was not barred at the time of decedent's death in 1947, in the sense intended by the revival statute. Therefore, the revival statute does not resurrect appellant's claim and the district court's judgment is affirmed.