Pennsylvania Supreme Court Denies Plaintiff’s Petition for Allowance of Appeal in Asbestos Case
July 11, 2016

James Herbert, Executor of the Estate of Vincent W. Gatto, Sr., Deceased v. American Biltrite, et al.: C.C.P. Allegheny County, C.A.No. 11-019602; Pennsylvania Superior Court Docket No. 1702 WDA 2014; and Pennsylvania Supreme Court Docket No. 61 WAL 2016

On June 21, 2016, the Pennsylvania Supreme Court issued an Order denying the Petition for Allowance of Appeal filed by James Herbert, Executor of the Estate of Vincent W. Gatto, Sr., Deceased, which challenged the January 12, 2016 Order of the Pennsylvania Superior Court affirming the trial court’s entry of summary judgment in favor of ten manufacturers and/or distributors of asbestos-containing products. Rawle & Henderson LLP represented Hajoca Corporation in the matter, but took the lead in preparing the Brief of Appellees and oral argument in the Superior Court and the Response to the Petition for Allowance of Appeal in the Supreme Court on behalf of all defendants involved in the appeal.

In the case, plaintiff alleged that the decedent, Vincent Gatto, was occupationally exposed to asbestos while working as a brick mason in Virginia from the early 1950s until the late 1970s, causing him to contract malignant mesothelioma. Gatto died on April 19, 2010, at the age of 86. Plaintiff instituted the wrongful death lawsuit in the Court of Common Pleas of Allegheny County in 2011 against various manufacturers and distributors of asbestos-containing products that Gatto was purportedly exposed to during the time period in question.

Hajoca Corporation and other defendants moved for summary judgment on the ground that Gatto’s claims were barred by the statute of limitations set forth in Va. Code Ann. §§ 8.01-243(A) and 8.01-249(4). Specifically, the defendants asserted that Gatto underwent a CT scan in 2003 which resulted in a diagnosis of asbestosis. Since litigation was not instituted within two years after the diagnosis of asbestosis was communicated to Gatto by his physician, defendants argued it was time-barred under Virginia law. Unlike Pennsylvania, which follows a “two-disease rule,” Virginia has traditionally adhered to the “one-disease rule,” which provides that “when the statute begins to run, it runs as to all damages caused by ‘the wrongful or negligent act of another,’ even if the individual suffers additional damages at a later date.” Kiser v. A.W. Chesterton Co., 285 Va. 12, 22, 736 S.E.2d 910, 916 (2013)(quoting Street v. Consumers Mining Corp., 185 Va. 561, 566, 39 S.E.2d 271, 272 (1946)).

Plaintiff did not challenge the application of the Virginia statute of limitations since all of the asbestos exposure occurred in Virginia. Instead, he opposed the summary judgment motion on the ground that the physician who conducted the 2003 CT scan testified, more than a decade after he conducted and interpreted the CT scan and attested to the accuracy of the diagnosis set forth therein, that there was either a transcription error in the CT scan report or he had misdiagnosed Gatto, and that Gatto did not have asbestosis in 2003. Plaintiff argued, therefore, that since Gatto did not have asbestosis in 2003, the statute of limitations did not commence running until Gatto was diagnosed with mesothelioma in 2010.

However, the defendants pointed out that this physician’s testimony was based solely on his review of the clinical findings in his earlier report and without reviewing the CT scan films themselves since they were unavailable. In addition, the physician admitted that he could have observed other indicators of asbestosis that he did not specifically include in his report.

The trial court (Judge Marmo of the Court of Common Pleas of Allegheny County) determined that the Virginia statute of limitations did in fact apply, and granted the defendants’ summary judgment motion. Judge Marmo held that Gatto’s cause of action accrued when the diagnosis of asbestosis was communicated to him, and that he had two years from that moment to institute his lawsuit, which he failed to do. Judge Marmo did not comment on plaintiff’s misdiagnosis argument.

The Superior Court, in a unanimous Memorandum Opinion entered on January 12, 2016, affirmed the trial court’s entry of summary judgment in favor of the defendants. The Superior Court noted that “asbestosis” appeared as a diagnosis in the 2003 CT scan report, and that the results of the 2003 CT scan report were specifically discussed with Gatto on more than one occasion (in 2003 and 2005), which was “sufficient to trigger the limitations period.” Although the Superior Court recognized that plaintiff was attempting to challenge the accuracy of the 2003 asbestosis diagnosis–more than a decade after it was made– to defeat summary judgment, the Court held that “Gatto incurred an obligation to pursue his cause of action with all reasonable diligence” after being told he had asbestosis in 2003, and that “any dispute regarding the diagnosis should have been resolved long before Appellant filed his cause of action in 2010.”

As noted, plaintiff filed a Petition for Allowance of Appeal challenging the Superior Court’s January 12, 2016 Memorandum Opinion. In the Petition, plaintiff argued that the statute of limitations cannot commence running based on a transcription error or misdiagnosis but, rather, may only commence running based on an accurate diagnosis. The defendants argued in response that Virginia law imposed a duty on Gatto, upon learning of the asbestosis diagnosis in 2003, whether accurate or not, to use reasonable diligence in pursuing his cause of action. If he had done so, any misdiagnosis would have been revealed at that time, and the present lawsuit would not be time-barred. However, since no such action was taken, plaintiff could not overcome summary judgment on that ground. The Petition was denied on June 21, 2016, effectively ending his state court appeal.

John C. McMeekin II represented Hajoca Corporation before the trial court. Carl D. Buchholz, III, Chair of the firm’s Appellate Department, argued the appeal on behalf of Hajoca Corporation and all of the other defendants.

John C. McMeekin II represents clients as local, national and trial counsel in environmental, toxic and mass torts product and related class actions, products liability, insurance coverage and aviation litigation. He graduated magna cum laude from the University of Baltimore School of Law. John is admitted to practice in Pennsylvania, New Jersey and Maryland and related U.S. District Courts. John is a former firefighter and emergency medical technician, and is Hazmat certified. He has been published in professional and law review journals on a variety of topics related to toxic tort and environmental litigation. His significant cases can be found in the BNA Law Reports and Law 360. He is a past Chair of the ABA TIPS Toxic Tort & Environmental Law Committee and International Law Committee, Chair of the Philadelphia Bar Association Environmental and Toxic Tort Law Committee, and serves as Revenue Officer and a member of the ABA TIPS Council.

Carl D. Buchholz, III, is Chair of the Maritime, Insurance Coverage and Appellate Sections. His federal appellate practice includes an argument before the United States Supreme Court as well as numerous arguments before the U.S. Court of Appeals for the Third Circuit. His state appellate practice includes seven arguments before the Pennsylvania Supreme Court, as well as over 35 oral arguments before the Pennsylvania Commonwealth Court and Pennsylvania Superior Court. From 2006–2012, Carl served as a member of the Disciplinary Board of the Supreme Court of Pennsylvania, including a term as Board Chair. Prior to his appointment to the Disciplinary Board, Carl served a six-year term as Chair and Board Member of the Pennsylvania Lawyers Fund for Client Security. In 2010, the Pennsylvania Supreme Court designated Carl as Chair of the Disciplinary Board. He has been rated AV Preeminent and has been selected as a Pennsylvania Super Lawyer by Law & Politics Magazine.

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