Mary Lou Clutter, of the Estate of Russell L. Clutter v. Johns-Manville Sales Corp., George Dwiggins v. Combustion Engineering, Inc., Martin J. McGreevey v. Combustion Engineering, Inc.

Citations: 646 F.2d 1151; 22 Ohio Op. 3d 201; 1981 U.S. App. LEXIS 14565Docket: 79-3004

Court: Court of Appeals for the Sixth Circuit; April 6, 1981; Federal Appellate Court

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The consolidated appeal addresses the accrual of causes of action against asbestos manufacturers under Ohio law. Three plaintiffs—Mary Lou Clutter, George Dwiggins, and Martin J. McGreevey—sued various manufacturers following asbestos exposure. Clutter, exposed prior to 1962 and diagnosed with pleural mesothelioma in February 1977, filed his suit on March 8, 1978, shortly before his death on August 17, 1978; his widow continued the case as a survival action. Dwiggins, last exposed in January 1976 and diagnosed with asbestosis in February 1978, filed suit on the same day as his diagnosis. McGreevey, who worked with asbestos from 1939 to 1973 and was diagnosed with asbestosis in July 1977, filed suit on October 13, 1977. The central legal question is when these claims for injury from asbestos exposure should be considered to have legally commenced under Ohio law.

Claims regarding bodily injury were determined to be subject to Ohio Rev.Code. 2305.10, which mandates that such actions be initiated within two years following the occurrence of the injury. The District Courts ruled that the claims arose at the time of the last asbestos exposure, rejecting the notion that the clock should start upon disease manifestation. This decision was supported by precedent from Wyler v. Tripi, where the Ohio Supreme Court declined to use a discovery rule in malpractice cases, a stance the District Courts interpreted as applicable only to foreign object malpractice, as later clarified in Melnyk v. Cleveland Clinic.

Appellants contend the District Courts misconstrued the statute, arguing that the Ohio Supreme Court has historically adopted a more lenient interpretation of statutes of limitations to facilitate access to the courts. They differentiate Wyler and Melnyk from their case based on the differing statutes governing medical malpractice claims, asserting that the lower courts' interpretation is arbitrary, creates undue privilege, and violates their due process rights under the Fourteenth Amendment and the Ohio Constitution.

In contrast, Appellees defend the lower courts' interpretation as consistent with existing case law and argue that the determination of when to apply a discovery rule should be left to the legislature, given the complexities of proving causation and the significant latency of the disease, which raises concerns about stale claims. They maintain that the lower court's interpretation does not violate due process and note that the constitutional arguments were not raised in the lower courts, thus barring consideration by this Court.

An amendment to Ohio Revised Code § 2305.10 introduced a discovery rule for asbestosis claims, establishing that a cause of action arises when a plaintiff is informed by a competent medical authority of their injury from asbestos exposure or when they should reasonably have become aware of it. However, this amendment does not apply retroactively to cases filed before its enactment, as the Ohio Constitution prohibits retroactive laws and relevant statutes affirm that amendments do not affect prior actions. Ohio courts have consistently refused to apply such amendments to statutes of limitations in both extending and shortening contexts. The court does not need to determine the application of the amendment to cases diagnosed before its enactment but filed afterward. A federal court must follow the law as interpreted by the state's highest court, utilizing state appellate decisions as guidance when necessary. The court acknowledges that asbestosis is a disease that may take years to manifest and refers to a precedent case involving berylliosis, where the statute of limitations did not begin to run until the disease was evident. It distinguishes between insidious diseases and cases of definite traumatic injury, noting that Ohio medical malpractice laws operate differently.

No direct decisions from the Ohio Supreme Court have been found regarding the statute of limitations for asbestosis, with an intermediate appellate court ruling in Spangler that the limitations period began at the date of last exposure. However, Spangler is not controlling as it was unpublished and lacked a formal opinion from the Ohio Supreme Court. The appellees argue that subsequent Ohio Supreme Court cases, such as Amer, Melnyk, and Wyler, suggest that Brush Beryllium misinterpreted Ohio law. Despite this, the Court remains unconvinced that these cases necessitate overruling Brush Beryllium. 

It is noted that Brush Beryllium and Wyler apply different rules for determining when a cause of action arises: Wyler uses a discovery rule based on when the injury is discovered, while Brush Beryllium employs a manifestation rule based on when the injury manifests. The syllabus in Wyler states that a medical malpractice cause of action accrues when the physician-patient relationship ends. Wyler recognized the harshness of a rule that begins the statute of limitations at the time of the tortious act or relationship termination, but concluded that legislative action was necessary for any change. In contrast, Melnyk adopted a discovery rule despite legislative inaction, ruling that a patient could sue within one year of discovering a foreign object left by a surgeon, differentiating it from Wyler as it involved a foreign object not present in Wyler's circumstances. The court maintained that Wyler did not need to be overruled because its syllabus lacked the broad language found in earlier cases.

Subsequent Ohio appellate court rulings have confined the Melnyk decision to cases involving foreign objects left in patients. In Simmons v. Riverside Methodist Hospital, the statute of limitations for a malpractice claim regarding misdiagnosis was not tolled until the negligence was discovered. Similarly, in Pritchard v. Riverside Methodist Hospital, the statute of limitations for a claim of radiation overdose was also not tolled until the discovery of the damage. The Third Circuit, in McKenna v. Ortho Pharmaceutical Corp., interpreted Melnyk as implicitly rejecting the notion that only the legislature could establish a discovery rule, applying it instead to a products liability case involving delayed injuries after discontinuation of a product.

In Amer, the Ohio Supreme Court ruled that the statute of limitations for a medical malpractice claim begins upon termination of the doctor-patient relationship, but this rule does not extend to a husband's loss of consortium claim, which is governed by a different statute. Although a discovery rule was suggested for the husband's claim, it was not considered by the court as it was not part of the primary legal issue presented. The court noted that prior decisions indicated a limited scope of malpractice rulings, affirming that while Wyler applies to legal malpractice claims, it does not extend to professional conduct claims outside the definition of malpractice. Consequently, the rules established in Wyler, Melnyk, and related cases do not apply to the current tort claims and do not necessitate overturning prior decisions.

Ohio tort case law does not support overruling Brush Beryllium, as early cases indicate the statute of limitations begins with the tortious act, which does not apply to progressive diseases where damage may be unknowable at the time of exposure. In Kerns v. Schoonmaker, the court noted that the statute starts running when the plaintiff's remedy is complete, not merely when the injurious act occurs. Other cases, such as Bryant v. Swetland and Williams v. Pomeroy Coal Co., reinforce that the statute of limitations does not extend due to a plaintiff's lack of awareness of the harm at the time of the wrongful act. However, asbestosis may not present recognizable damage until long after exposure. Additionally, in products liability cases, the limitations period tends to begin when the damage occurs rather than when the negligent act or product defect arises. The case of Val Decker Packing Co. v. Corn Products Sales Co. emphasized that the cause of action accrued upon completion of the installation, not upon the discovery of damage, although U.S. Fidelity. Guaranty Co. v. Truck Concrete Equipment Co. distinguished itself due to the absence of a contractual relationship, clarifying the applicable statute of limitations.

The court determined that the statute of limitations for the case began when the truck collapsed, not when the defective item was released from the defendant's control. In Mahalsky v. Salem Tool Co., it was established that the limitations period commenced upon the product's failure, barring the plaintiff's claim under Ohio Revised Code 2305.10. The Ohio Supreme Court ruled that sellers of defective products are strictly liable for injuries if the product reaches the consumer without substantial change, as seen in Temple v. Wean United, Inc. Although the statute of limitations was not explicitly addressed, the focus remained on the date of injury rather than the defendant's negligent actions. A relevant example involved a machine sold in 1954, which resulted in injury to a plaintiff in 1972; the lawsuit filed in 1974 would only be timely if measured from the injury date. The court affirmed adherence to the manifestation rule for asbestosis cases, which aligns with previously decided cases, including Cook v. Yager. This case illustrated that a cause of action does not accrue until the consequential injury manifests, even if the professional relationship has ended, distinguishing it from other malpractice cases where immediate harm occurred. Thus, the court concluded that the statute of limitations does not begin until the injury stemming from the defendant's actions is realized.

The plaintiffs' claims regarding asbestos exposure assert that the harmful effects did not result in immediate injury but instead triggered processes that later led to asbestosis. Consequently, their causes of action should not be considered accrued until the diseases are manifested. The recent legislative amendment introducing a discovery rule for asbestos-related diseases does not invalidate the existing precedent set by Brush Beryllium, which affirms that claims for insidious diseases accrue upon manifestation rather than the last exposure date. The court emphasizes that the manifestation rule and the discovery rule are not synonymous, as a condition may become apparent before the injured party has discovered its cause. The court finds that the lower District Courts incorrectly determined that the statute of limitations began on the date of last exposure, thereby barring the plaintiffs' claims. The court remands the cases for further determination of when the diseases manifested. The terminology "discovery rule" in this context refers specifically to the accrual of a cause of action upon the discovery of injury, distinct from procedural rules concerning evidence discovery. The court also notes the legislature's subsequent action indicating disagreement with the previous judicial interpretation regarding the accrual of claims. Additionally, due to the reliance on Ohio law, the court does not address any constitutional issues raised.