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Cowgill v. Raymark Industries Inc.

argued: July 17, 1987.

COWGILL, STELLA, EXECUTRIX OF THE ESTATE OF GEORGE COWGILL, DECEASED AND INDIVIDUALLY
v.
RAYMARK INDUSTRIES, INC., ET AL H.K. PORTER COMPANY, INC. PACOR, INC. EAGLE-PICHER INDUSTRIES, J.P. STEVENS & COMPANY, GARLOCK, INC., PRECISION SEAL DIVISION, SOUTHERN TEXTILE COMPANY, ARMSTRONG WORLD INDUSTRIES, INC., NICOLET, INC. KEENE CORPORATION, OWENS-ILLINOIS GLASS COMPANY, CELOTEX CORPORATION, GAF CORPORATION, FIBREBOARD CORPORATION, OWENS-CORNING FIBERGLAS CORPORATION, FORTY-EIGHT INSULATION, INC. PITTSBURGH CORNING CORPORATION C.E. REFRACTORIES V. PORTER HAYDEN, CO. LAFAVORITE RUBBER MFG. CO. STELLA COWGILL, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 83-4196.

Author: Stapleton

Opinion OF THE COURT

STAPLETON, Circuit Judge:

This appeal requires us to review evidentiary rulings made during a jury trial of a statute of limitations issue in an asbestos case. That trial was held pursuant to a mandate of this court reversing earlier summary judgments for the defendants on limitations grounds and remanding for further proceedings to resolve disputes of fact material to the limitations issue. Cowgill v. Raymark Industries, Inc., 780 F.2d 324 (3rd Cir. 1985) (Cowgill I). Much of the excluded evidence in question was offered in support of a theory that was raised for the first time on remand and that was inconsistent with the facts found by the trial court in the initial proceedings and left undisturbed on appeal. The remaining evidence at issue was excluded under Fed. R. Evid. 401 and 403. Because we conclude that the plaintiff was barred from litigating her new theory and because we find no fault with the trial court's disposition of the remaining issues, we will affirm.

I.

From 1926 until his retirement in 1961, George Cowgill worked as a pipefitter at Mobil Oil Company's Paulsboro, New Jersey refinery. In 1979, Mr. Cowgill was contacted by Mobil and asked to return to the Paulsboro refinery for a physical examination, a request he honored on November 16, 1979. Cowgill returned for further tests on November 29 and then again on November 30. He was examined on the latter two dates by Dr. James A. Barnshaw, a Mobil physician. Dr. Barnshaw diagnosed Cowgill as having "evidence of pleural thickening indicative of asbestos exposure." App. at 742. Whether and to what extent Barnshaw communicated this finding to Cowgill is disputed.

On April 30, 1980, Mr. Cowgill returned once again to the Paulsboro refinery, this time to participate in a group discussion about asbestos-related ailments. Dr. John McNally, who led the discussion, had reviewed Mr. Cowgill's file and concurred with Dr. Barnshaw's diagnosis of pleural thickening. Dr. McNally's records suggest that he may have relayed his conclusion to Mr. Cowgill, although this matter is in dispute. The parties do agree that Dr. Barnshaw wrote to Mr. Cowgill on November 20, 1981 advising him that Mobil's studies showed "minimal pleural thickness, most likely secondary to asbestos exposure" and "no other asbestos related findings." App. at 883.

On September 30, 1982, Mr. Cowgill was diagnosed as having lung cancer. He died on March 3, 1983.

Mrs. Cowgill filed this suit on August 26, 1983 in the United States District Court for the Eastern District of Pennsylvania, raising claims under New Jersey's Wrongful Death and Survival Acts. Her complaint alleged in part:

8(a) During the aforementioned years of employment [with Mobil], decedent was caused to be exposed to raw asbestos fiber and/or finished asbestos products of defendants which exposure caused him to contract asbestos related diseases and/or injury to his body systems, lungs, respiratory system, heart and other organs. As a result of said exposure, he said decedent was caused to suffer . . .:

asbestosis, carcinoma of the lung

(b) It is averred that each said asbestos related disease was diagnosed on:

asbestosis - November 20, 1981

carcinoma of the lung - September 30, 1982

(c) It is averred that plaintiff's decedent knew of each such diagnosis on or about each of the above respective dated.

In their answers, the defendants, Raymark Industries and numerous other producers and distributors of asbestos, asserted that Mrs. Cowgill's claim was barred by a two year Pennsylvania statute of limitations. 42 Pa. Cons. Stat. Ann. ยง 5542(2) (Purdon Supp. 1985). They correctly pointed out that under Pennsylvania law all asbestos-related injuries constitute a single cause of action and the limitations period is triggered with respect to that cause of action when the first of a series of asbestos-related injuries is or reasonably should have been discovered. Ross v. Johns-Manville Corp., 766 F.2d 823 (3d Cir. 1985) and cases cited therein.

After completion of discovery, the parties filed a Joint Pretrial Order in which the positions of the parties with respect to the date upon which Mr. Cowgill first learned ...


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