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Court of Appeal, First District, Division 5, California.

Kyle RICHMOND, Plaintiff and Respondent, v. A.P. GREEN INDUSTRIES, INC., et al., Defendants and Appellants.

No. A071729.

Decided: June 04, 1997

Brayton Harley Curtis,Philip A. Harley, Novato, James L. Oberman, Hercules, for Plaintiff and Respondent. Haight, Brown & Bonesteel, Roy G. Weatherup, Steven E. Moyer, Caroline E. Chan, Santa Monica, Lisa L. Oberg, Carrie Cappai Bauccio, San Francisco, for Defendants and Appellants.

Defendants and appellants A.P. Green Industries, Inc. (Green), and Flexitallic, Inc. (Flexitallic), appeal a judgment by jury trial awarding plaintiff and respondent Kyle Richmond  2  damages in his action for personal injuries from asbestos exposure.   Appellants present numerous assignments of error, principal among which is that the action was barred by the statute of limitations.   We affirm.


Between 1942 and his retirement in 1973 respondent worked as a welder in various shipyards, through which he was exposed to airborne asbestos fibers emanating from appellants' products, the inhalation of which resulted in lung damage.

In 1983 respondent brought an action for asbestos-related injuries against multiple specifically named and fictitious defendants, naming Flexitallic but not Green as a defendant.   In his 1983 action respondent alleged that he suffered from “asbestosis, other lung damage, and cancer” and “is dying” as a result of his asbestos exposure.   Both respondent and his wife, although she was not a party to the 1983 action, settled with several defendants, but there is no record of any settlement with appellant Flexitallic, and it is undisputed that Green was never designated as one of the fictitiously named defendants.   The action was ultimately dismissed against the nonsettling defendants for failure to bring the case to trial within five years. (§§ 583.310 & 583.360.)

In June 1994 respondent complained of shortness of breath and pain in his lungs, and tests revealed a tumor arising in a scarred area.   Subsequent exploratory surgery revealed cancer on the pleural lining of the lung and other abnormalities consistent with asbestos pleural disease.   In August 1994 the tumor was diagnosed as mesothelioma.

On October 11, 1994, respondent filed the present action, from which this appeal is taken, against numerous defendants including appellants, alleging “breathing difficulties, asbestosis, lung and/or other cancer, mesothelioma, and/or other lung damage.”   Respondent's wife was also a named plaintiff, alleging loss of consortium, but she subsequently dismissed her action.

By special verdict the jury found that (1) appellants did not act negligently;  (2) appellants' products were defectively designed;  (3) the defects were a cause of respondent's injuries;  (4) respondent's injuries were caused by a reasonably foreseeable use of the products;  (5) respondent did not contribute to his injuries;  and (6) respondent suffered appreciable harm before June 3, 1986, as a result of asbestos inhalation.

The jury awarded respondent $165,000 in economic damages and $115,000 in noneconomic damages, assessing liability against Green at 1 percent, Flexitallic at .5 percent, and “all others” at 98.5 percent.   The court reduced the award by the amount respondent received in settlement of his 1983 action.   Appellants' motions for judgment notwithstanding the verdict and new trial were denied.



 Appellants contend the present action is barred by the statute of limitations.   Section 340.2, subdivision (a) states that the time for commencing any action based on exposure to asbestos “shall be the later of the following:  [¶] (1) Within one year after the date the plaintiff first suffered disability.  [¶] (2) Within one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known, that such disability was caused or contributed to by such exposure.”   Section 340.2, subdivision (b) defines “disability” as “loss of time from work as a result of such exposure which precludes the performance of the employee's regular occupation.”   Section 340.2 has been construed as open-ended for plaintiffs, such as retirees, who are not working when asbestos exposure injuries first appear because they have not sustained a disability as that term is defined in section 340.2.  (Duty v. Abex Corp. (1989) 214 Cal.App.3d 742, 748-753, 263 Cal.Rptr. 13 (Duty );  see also Williamson v. Plant Insulation Co. (1994) 23 Cal.App.4th 1406, 1419, 28 Cal.Rptr.2d 751.)

Appellants rely on Darden v. General Motors Corp. (1995) 40 Cal.App.4th 349, 47 Cal.Rptr.2d 580 (Darden ) for the proposition that respondent's action had accrued when he filed his previous suit in 1983, and therefore the present action is barred by the statute of limitations.   In Darden the plaintiff retiree filed an action in 1987 against General Motors and others for pulmonary fibrosis and asbestos-related pleural disease that was first diagnosed in 1986.   In June 1990 plaintiff settled with other defendants and dismissed his action without prejudice against General Motors, which he had not served.   In June 1991 he filed a virtually identical complaint against General Motors.  Darden held the plaintiff's second action was time-barred under the one year statute of limitations in section 340.2.  “[W]hen an individual has already announced and pursued an asbestos-related personal injury claim with a prior lawsuit, and indeed in that suit has named but not served the very defendant then pursued at a much later date, that person does not escape the limitation of section 340.2.   Rather, the statute starts to run upon filing the first lawsuit.”  (Darden at p. 356, 47 Cal.Rptr.2d 580. )

Darden reasoned that section 312 permits civil actions to commence only within statutorily-prescribed periods after the cause of action accrues, absent a different statutory limitation.   Under section 340.2 an asbestos action accrues one year after the plaintiff suffers a disability due to asbestos exposure.   Under section 350 an action commences with the filing of a complaint.   Therefore, when a plaintiff files a complaint for asbestos injury, he admits his action has accrued.  (Darden, supra, 40 Cal.App.4th at p. 356, 47 Cal.Rptr.2d 580.)  Darden also concluded that repeated actions would violate public policy and the legislative intent of section 340.2.  “[T]o fashion a loophole for multiple suits against the same defendant beyond the one-year bar would offend the purposes of statutes of limitations:  namely, the promotion of repose [citation] and the elimination of the surprise that comes through reviving of stale claims [citation].  [¶] ․ [¶] [W]ith the enactment of section 340.2, the Legislature intended to accommodate victims of asbestos-related disease by permitting deferred commencement of their actions until such disease prevents them from continuing to work.   Thus, while the statute yields more time in which to bring suit, given the progressive nature of the disease, there is no intent to allow multiple suits beyond the one-year limit.”  (Darden at p. 356, 47 Cal.Rptr.2d 580.)

Respondent advances two reasons why the statute of limitations does not bar his action.   First, he notes that Darden concerned a second action against the same named defendant for the same injury, and argues that since appellant Green was not named in respondent's 1983 action, the Darden rule should not bar the current action against Green.   Second, he contends his 1983 action involved nonmalignant asbestos-related lung disease, and his 1994 action involves a different injury-asbestos-related malignancy of the lungs, and therefore should lie against both appellants.

 The statute of limitations is an affirmative defense which must be invoked by the defendant or it is waived.  (Minton v. Cavaney (1961) 56 Cal.2d 576, 581, 15 Cal.Rptr. 641, 364 P.2d 473;  Shapiro v. Equitable Life Assur. Soc. (1946) 76 Cal.App.2d 75, 95, 172 P.2d 725.)   Appellants asserted the statute of limitations in their answer, and also moved in limine to dismiss the action on statute of limitations grounds.   In support of their motion to dismiss, appellants offered respondent's 1983 complaint in which he alleged he was suffering from cancer.   An allegation in a prior pleading constitutes an evidentiary admission (Magnolia Square Homeowners Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1061, 271 Cal.Rptr. 1), thereby placing the burden on the party contesting his prior allegation of producing evidence that it was “inadvertently made or [was] not authorized by him or made under mistake of fact” or otherwise incorrect.  (Ibid. quoting Dolinar v. Pedone (1944) 63 Cal.App.2d 169, 177, 146 P.2d 237;  see also Evid.Code, § 550, subd. (a).)

Respondent did not offer any evidence at the time appellants made their motion to dismiss, and the matter proceeded to trial without a ruling on the motion.   However, during the trial respondent's medical experts testified that his mesothelioma was first diagnosed in August 1994, following his complaints in June 1994 that he was experiencing shortness of breath, and there is no contrary evidence.   Since respondent's complaint was filed within one year after his diagnosis of mesothelioma, it was timely if the mesothelioma constitutes a separate cause of action.

 Although no California cases have addressed the issue outside the workers' compensation area (Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1990) 219 Cal.App.3d 1265, 268 Cal.Rptr. 699 [asbestosis and mesothelioma are separate and distinct diseases under the Workers' Compensation Act] ), virtually all other jurisdictions which have considered the issue have concluded that mesothelioma and asbestosis are separate and distinct conditions.  (See, e.g., Marinari v. Asbestos Corp., Ltd. (1992) 417 Pa.Super. 440, 612 A.2d 1021;  Potts v. Celotex Corp. (Tenn.1990) 796 S.W.2d 678;  Fusaro v. Porter-Hayden Co. (Sup.1989) 145 Misc.2d 911, 548 N.Y.S.2d 856;  Mauro v. Raymark Industries, Inc. (1989) 116 N.J. 126, 561 A.2d 257;  Hagerty v. L & L Marine Services, Inc. (5th Cir.1986) 788 F.2d 315;  Devlin v. Johns-Manville Corp. (1985) 202 N.J.Super. 556, 495 A.2d 495;  Eagle-Picher Industries, Inc. v. Cox (Fla.App. 3 Dist.1985) 481 So.2d 517;  Sheppard v. A.C. & S. Co. (1985) 498 A.2d 1126;  Smith v. Bethlehem Steel Corp. (1985) 303 Md. 213, 492 A.2d 1286;  Jackson v. Johns-Manville Sales Corp. (5th Cir.1984) 727 F.2d 506.)

Respondent's principal physician, Dr. Ravnik, saw respondent every two to three months beginning May 1991.   Dr. Ravnik also had the records of respondent's previous physician back to 1958.   Respondent had yearly chest x-rays, and was spry and in good health for his age.   Such medical problems as he had were unrelated to his lungs and were not life-threatening.   He first complained of left-sided chest pain and shortness of breath in June 1994.   A July 1994 chest x-ray showed an abnormal growth, or tumor, in the left lower lung related to the pleural surface, which was a significant change from previous x-rays.   Following surgery in July by Dr. Stallone to remove the tumor, Doctors Ravnik, Stallone, and other physicians held a “chest conference” and agreed that respondent was suffering from mesothelioma, an incurable cancer of the lining of the lung.   Respondent's expert pulmonologist and pathologist, Drs. Horn and Hammer, respectively, distinguished mesothelioma, lung cancer and asbestosis as separate and distinct diseases.   Appellants presented no contrary evidence, and have not challenged the concept of asbestosis and mesothelioma as separate diseases.   Based on the uncontradicted evidence in this case and the persuasive authority of those courts who have addressed the issue, we hold that asbestosis and mesothelioma are separate and distinct diseases for purposes of the statute of limitations.

Darden involved a second action against the same defendant for the same disease.   Consequently, Darden does not require reversal on statute of limitations grounds because respondent's cause of action for mesothelioma is separate and distinct from his prior action for asbestosis, and could not have accrued until he knew or should have known that he had contracted cancer.   The evidence is undisputed that respondent was first advised of his mesothelioma in August 1994.   There is no evidence that prior to June 1994, when he developed shortness of breath and pain in his lungs, respondent had any reason to suspect he was suffering from mesothelioma.   His complaint, filed in October 1994, is therefore timely under section 340.2, as interpreted by Duty, supra, 214 Cal.App.3d 742, 263 Cal.Rptr. 13 and cognate cases.3



The judgment is affirmed.   Costs to respondent.


2.   Kyle Richmond died pending appeal.   His widow, Cassie Richmond, has been substituted as his successor-in-interest.  (Code Civ. Proc., § 377.32.) However, for clarity we refer to respondent by the masculine pronoun.Unless otherwise stated, all further statutory references are to the Code of Civil Procedure.

3.   After respondent settled his 1983 action, the San Francisco Superior Court issued its General Order Number 27, which provided that asbestos plaintiffs who had not contracted cancer could recover damages for emotional distress arising from a fear of cancer, but could not recover damages for an increased risk of cancer arising from asbestos exposure.   The Memorandum of Opinion for General Order No. 27 states that noncancerous asbestos plaintiffs would be permitted to file additional actions claiming damages from asbestos-caused cancer if it developed in the future.   The stated reason was that cancer was a separate injury for which the statute of limitations was not triggered until the disease manifested itself.

FOOTNOTE.   See footnote 1, ante.

HANING, Associate Justice.

PETERSON, P.J., and JONES, J., concur.

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