CONNEEN et al v. AMATEK, INC. et al

Filing 134

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 2/28/2017. 3/2/2017 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSEPH CONNEEN AND
KATHLEEN CONNEEN,
Plaintiffs,

v.

AMATEK, INC.,
et al.,
Defendants.

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CONSOLIDATED UNDER
MDL 875

E.D. Pa. Civil Action No.
2:15-cv-1063-ER

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

February 28, 2017

This case was removed in March of 2015 from the Court
of Common Pleas of Philadelphia to the United States District
Court for the Eastern District of Pennsylvania as part of MDL875.
Plaintiffs assert that Mr. Conneen developed lung
cancer as a result of, inter alia, his exposure to asbestos
released from products manufactured and/or supplied by Defendant
Goulds Pumps, Inc. (“Goulds” or “Defendant”) and/or about which
Defendant owed and breached a duty of care. (See Exhibit I to
Pl. Opp., ECF No. 114 at 46-49, &&7-16.)
Plaintiffs have brought claims against various
defendants. Defendant Goulds has moved for summary judgment,

arguing that Plaintiffs’ claims are barred by the applicable
statute of limitations.

I.

FACTUAL AND PROCEDURAL HISTORY
Plaintiffs allege that Joseph Conneen (“Decedent” or

“Mr. Conneen”) was exposed to asbestos while, inter alia,
working as a pipefitter and plumber at various locations in
Pennsylvania during the period from 1962 to 1980. Defendant
Goulds manufactured pumps. The locations of the alleged asbestos
exposure identified in Plaintiffs’ Complaint are:
•
•
•

Philadelphia Naval Shipyard
Rohm and Haas Chemicals – Bristol, PA
Rohm and Haas chemical plant – Philadelphia, PA
(Bridesburg neighborhood)

(Exhibit I to Pl. Opp., ECF No. 114 at 48, &5.)
Defendant Goulds has moved for summary judgment,
arguing that Plaintiffs’ claims are barred by Pennsylvania’s
two-year-long statute of limitations. Although Plaintiffs appear
to agree with Defendant that Pennsylvania law governs their
claims against Defendant (and that a two-year-long statute of
limitations is applicable), Plaintiffs contend that their
Complaint was timely filed.
In connection with Plaintiffs’ opposition, Mr. Conneen
has provided an affidavit setting forth the events surrounding
his diagnosis and his discovery of asbestos as a potential cause
2

of his lung cancer. (See Exhibit A to Pl. Opp., ECF No. 114 at
13-15.) According to Plaintiffs, Mr. Conneen did not learn that
asbestos was potentially a cause of his illness until February
12, 2013. Plaintiffs contend that this renders the Complaint
timely because the statute of limitations did not begin to run
until February 12, 2013 (when he first learned that his lung
cancer may have been caused by asbestos) and that, to the extent
that it can be said to have begun to run when he learned of his
lung cancer diagnosis (in December of 2012), tolling of the
statute of limitations is warranted because he did not know at
that time that asbestos may have been a cause of the illness
(i.e., he had no reason or basis for bringing an asbestos action
at that time).
By way of a preliminary scheduling order, discovery in
this case was limited to discovery on the issue of statute of
limitations. (See ECF No. 73.) While Defendants were permitted
to conduct discovery – including deposition of Mr. Conneen – on
this matter, it appears from the record that Mr. Conneen has not
been deposed. Rather, in seeking summary judgment, Defendants
rely exclusively upon medical records from a series of medical
procedures and doctors’ visits that occurred in December of
2012.
It is undisputed that the Complaint in this case was
filed on January 20, 2015.
3

II.

LEGAL STANDARD
A.

Summary Judgment Standard
Summary judgment is appropriate if there is no genuine

dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion
for summary judgment will not be defeated by ‘the mere
existence’ of some disputed facts, but will be denied when there
is a genuine issue of material fact.” Am. Eagle Outfitters v.
Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)).
A fact is “material” if proof of its existence or non-existence
might affect the outcome of the litigation, and a dispute is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248.
In undertaking this analysis, the court views the
facts in the light most favorable to the non-moving party.
“After making all reasonable inferences in the nonmoving party’s
favor, there is a genuine issue of material fact if a reasonable
jury could find for the nonmoving party.” Pignataro v. Port
Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing
Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.
1997)). While the moving party bears the initial burden of

4

showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the non-moving party who
must “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 250.

B.

The Applicable Law
The alleged asbestos exposures at issue occurred at

several locations in Pennsylvania, some of which were clearly
land-based exposures (i.e., at Rohm and Haas facilities in
Bristol and the Bridesburg neighborhood of Philadelphia). When
the parties to a case involving land-based exposure agree to
application of a particular state's law, this Court has
routinely applied that state's law. See, e.g., Brindowski v.
Alco Valves, Inc., No. 10–64684, 2012 WL 975083, *1 n. 1 (E.D.
Pa. Jan 19, 2012) (Robreno, J.).
However, there were also alleged asbestos exposures at
the Philadelphia Naval Shipyard, which may have been land-based
exposures (i.e., occurring at a location within the shipyard not
onboard a ship, such as a repair shop), but were more likely onship (i.e., sea-based) exposures. See Conner v. Alfa-Laval,
Inc., 799 F. Supp. 2d 455 (E.D. Pa. 2011) (Robreno, J.)
(applicability of maritime law generally); Deuber v. Asbestos
Corp. Ltd., No. 10-78931, 2011 WL 6415339 (E.D. Pa. Dec. 2,
2011) (Robreno, J.) (distinguishing between land-based and ship-

5

based exposures within a shipyard facility). As this Court has
routinely held, where a case sounds in admiralty, application of
a state's law would be inappropriate. See, e.g., Mack v. General
Elec. Co., 896 F. Supp. 2d 333, 336 (E.D. Pa. 2012) (Robreno,
J.) (citing Gibbs ex rel. Gibbs v. Carnival Cruise Lines, 314
F.3d 125, 131–32 (3d Cir. 2002)). Therefore, if some of the
claims at issue are governed by maritime law (i.e., arise from
alleged sea-based asbestos exposure), they could not be barred
by the Pennsylvania statute of limitations – and the Court could
instead grant summary judgment on those claims only if they are
barred by the maritime law statute of limitations.
For the reasons that follow below, the outcome of
Defendant’s motion is the same regardless of whether
Pennsylvania law or maritime law is applied 1 – and regardless of

1

The Court notes that the outcome is the same whether
the statute of limitations is considered a procedural matter (on
which a federal MDL court applies federal law) or a substantive
matter (on which, in a diversity action, a federal MDL court
applies the applicable state law or, in an action premised on
federal jurisdiction, applies federal law). See Various
Plaintiffs v. Various Defendants (“The Oil Field Cases”), 673 F.
Supp. 2d 358, 362-63 (E.D. Pa. 2009) (Robreno, J.) (application
of state versus federal law); Sabella, 103 A.3d 83 (citing
Reott, 618 Pa. 228, 55 A.3d at 1092) (under Pennsylvania law,
the statute of limitations is an affirmative defense on which
the defendant bears the burden of proof); and Clayton v.
Burlington Northern and Santa Fe Ry. Co., No. 10-07082, 2012 WL
5389803 (E.D. Pa. 2012) (Robreno, J.) (citing In re Community
Bank of Northern Virginia, 622 F.3d 275, 292 (3d Cir. 2010))
(under federal law (such as maritime law), the statute of
limitations is an affirmative defense on which the defendant
bears the burden of proof).
6

whether only one or both laws are applicable to all or part of
Plaintiffs’ claims. (In other words, neither statute of
limitations would bar any of Plaintiffs’ claims.) Therefore, the
Court need not scour the record for indications as to whether
the alleged asbestos exposures at the Naval Shipyard are
properly governed by maritime law or Pennsylvania state law. 2

C.

Statute of Limitations (Under Pennsylvania Law)
Under Pennsylvania law, the statute of limitations for

an asbestos-related injury is, generally, two years from the
date on which a claim may be brought (i.e., the date on which an
injury occurs). See Abrams v. Pneumo Abex Corp., 602 Pa. 627,
981 A.2d 198 (Pa. 2009) (asbestos case); Bone v. American
Standard, No. 2468 EDA 2012, 2013 WL 5038573 (Pa. Super. 2013)

2

The Court notes that, although at the summary judgment
stage the burden is on Defendant to establish that it is
entitled to summary judgment – which, here, would require it to
establish that Pennsylvania law is applicable to the claims on
which it seeks summary judgment (in addition to establishing
that the Pennsylvania statute of limitations bars those claims),
see McCain v. CSX Transportation, Inc., 708 F. Supp. 2d 494
(E.D. Pa. 2010) (Robreno, J.), Sabella v. Appalachian
Development Corp., 103 A.3d 83 (Pa. Super. 2014) (citing Reott
v. Asia Trend, Inc., 618 Pa. 228, 55 A.3d 1088, 1092 (Pa. 2012))
(under Pennsylvania law, the statute of limitations is an
affirmative defense on which the defendant bears the burden of
proof), the motion would be denied in its entirety regardless of
whether Defendant has satisfied its burden of establishing that
Pennsylvania law is applicable. See, e.g., Kite v. Bill Vann
Co., Inc., No. 11-67753, 2014 WL 6735191 (E.D. Pa. 2014)
(Robreno, J.) (denying motion for summary judgment on grounds
that defendant asserted the statute of limitations of a state
whose law did not govern the claims at issue).
7

(same); 42 Pa. C.S.A. ' 5524(8) (and see ' 5524(2)); see also
Fine v Checcio, 582 Pa. 253, 266, 870 A.2d 850, 857 (Pa. 2005)
(discussing, generally, in a non-asbestos case, the running of
the statute of limitations under Pennsylvania law). However,
there are certain exceptions to this general rule in which the
statute of limitations may be deemed “tolled.” See Fine v.
Checcio, 582 Pa. at 266-67, 870 A.2d at 858 (discussing the
“discovery rule” and the “doctrine of fraudulent concealment” as
two scenarios in which such tolling may be appropriate).
Pennsylvania recognizes the “discovery rule” in cases
where an injured party is unable, despite the exercise of
reasonable diligence, to know of both (1) the fact of injury,
and (2) the cause of that injury. See Fine v. Checcio, 582 Pa.
at 266-67, 870 A.2d at 858 (“The discovery rule originated in
cases in which the injury or its cause was neither known nor
reasonably knowable. . . . As the discovery rule has developed,
the salient point giving rise to its application is the
inability of the injured, despite the exercise of reasonable
diligence, to know that he is injured and by what
cause.”)(citing Lewey v. H.C. Frick Coke Co., 166 Pa. 536, 31 A.
261 (Pa. 1895), Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (Pa.
1959), Hayward v. Medical Center of Beaver County, 530 Pa. 320,
608 A.2d 1040, 1043 (Pa. 1992), and Pocono International

8

Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468
(Pa. 1983)).
The exception to the statute of limitations created by
the “discovery rule” may apply in cases of asbestos-related
disease, where there is not an immediate and obvious causal link
between a diagnosis (such as lung cancer) and exposure to
asbestos. See Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245
(Pa. 1995) (discussing the applicability of the “discovery rule”
in a case involving potentially asbestos-related lung cancer).
“The discovery rule is a judicially created device that tolls
the running of the applicable statute of limitations until the
point where the complaining party knows or reasonably should
know that he has been injured and that his injury has been
caused by another party's conduct. The complaining party must
use reasonable diligence to discover the cause of an injury.”
Gustine Uniontown Assocs., Ltd. v. Anthony Crane Rental, Inc.,
L.P., 577 Pa. 14, 30 n.8, 842 A.2d 334, 344 (2004) (citing
Crouse v. Cyclops Industries, 560 Pa. 394, 745 A.2d 606, 611
(Pa. 2000)).
Pennsylvania has codified the “discovery rule” as it
pertains to asbestos actions:
(8) An action to recover damages for injury to a
person or for the death of a person caused by
exposure to asbestos shall be commenced within
two years from the date on which the person is
informed by a licensed physician that the person
9

has been injured by such exposure or upon the
date on which the person knew or in the exercise
of reasonable diligence should have known that
the person had an injury which was caused by such
exposure, whichever date occurs first.
42 Pa. C.S.A. ' 5524(8). (Emphasis added.)
Pennsylvania also recognizes the “doctrine of
fraudulent concealment” and allows a tolling of the statute of
limitations under this doctrine even in situations of
unintentional deception (i.e., where a deception, albeit
unintentional, results in the concealment of a plaintiff’s claim
such that an action is not brought within the generally
applicable statute of limitations). This doctrine “is based on a
theory of estoppel, and provides that the defendant may not
invoke the statute of limitations if, through fraud or
concealment, he causes the plaintiff to relax his vigilance or
deviate from his right of inquiry into the facts.” Fine v.
Checcio, 582 Pa. at 270-71, 870 A.2d at 860 (citing Deemer v.
Weaver, 324 Pa. 85, 187 A. 215 (Pa. 1936)).
Under either the “discovery rule” or the “doctrine of
fraudulent concealment,” the standard applicable in assessing a
plaintiff’s efforts to timely bring an action is that of
“reasonable diligence.” Fine v. Checcio, 582 Pa. at 271, 870
A.2d at 861. In general, this is a question of fact for the
jury. In recent years, the Pennsylvania Supreme Court has
provided the following guidance on this matter:
10

While reasonable diligence is an objective test,
“[i]t is sufficiently flexible...to take into account
the difference[s] between persons and their capacity
to meet certain situations and the circumstances
confronting them at the time in question.” Crouse, 745
A.2d at 611 (quotation omitted). Under this test, a
party's actions are evaluated to determine whether he
exhibited “those qualities of attention, knowledge,
intelligence and judgment which society requires of
its members for the protection of their own interest
and the interest of others.” Id.
Therefore, when a court is presented with the
assertion of the discovery rules application, it must
address the ability of the damaged party, exercising
reasonable diligence, to ascertain that he has been
injured and by what cause. Id. Since this question
involves a factual determination as to whether a party
was able, in the exercise of reasonable diligence, to
know of his injury and its cause, ordinarily, a jury
is to decide it. Hayward, 608 A.2d at 1043. See Smith
v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134,
153 A.2d 477, 481 (1959). Where, however, reasonable
minds would not differ in finding that a party knew or
should have known on the exercise of reasonable
diligence of his injury and its cause, the court
determines that the discovery rule does not apply as a
matter of law. Pocono International, 468 A.2d at 471.
Fine v. Checcio, 582 Pa. at 267-68, 870 A.2d at 858-59.
(Emphasis added.)
In Cochran, the Pennsylvania Supreme Court considered
the “discovery rule” in the context of an asbestos case. It
affirmed the lower court’s grant of a motion for summary
judgment on the grounds of the statute of limitations because it
found that “reasonable minds could not differ as to the
decedent's lack of reasonable diligence rendering this case
suitable for summary judgment,” given that “the decedent waited
11

four years before diligently pursuing the cause of his illness.”
542 Pa. at 218–19, 666 A.2d at 250 (emphasis added). The facts
in Cochran were as follows: the decedent-plaintiff worked at a
steel mill from 1943 until 1982 (and smoked cigarettes regularly
during essentially this entire period of almost forty years); he
was diagnosed with lung cancer during a hospital stay in June of
1981 (at which time he ceased smoking); he first discussed with
his physician that asbestos exposure was a possible cause of his
cancer on March 3, 1985; he then obtained an opinion from an
expert, who opined on August 7, 1985 that his lung cancer was
caused by asbestos exposure; and he thereafter filed an asbestos
action against the defendants on September 27, 1985. In short,
the plaintiffs contended that the first time the decedent
learned that asbestos may have caused his cancer was August 1985
(or perhaps March 1985), but the Supreme Court (and the
intermediate appellate court) held that the “discovery rule” did
not save his claims because he had not exercised sufficient
diligence in identifying the cause of his lung cancer as he
learned of the lung cancer in June of 1981, did not inquire of
his doctor about the possibility of asbestos as a cause until
March of 1985, and did not file action until September of 1985.
In Fine v. Checcio, the Pennsylvania Supreme Court
considered both the “discovery rule” and the “doctrine of
fraudulent concealment” in the context of a dental malpractice
12

action. In that case, a plaintiff delayed in filing suit after a
dental procedure caused lasting numbness in his mouth and face.
He contended that (1) he had no reason to think there was an
injury when the numbness first began because the dentist had led
him to believe that it was a normal side effect of his procedure
– and that (2) he was thereafter continually “lulled” into nonaction for another six months because the dentist told him on
ten separate visits thereafter that the numbness would take
about six months to wear off. His complaint was filed
approximately two years and one month after the procedure was
performed and the numbness began (i.e., approximately one month
beyond the timeline provided by the statute of limitations). He
argued that, pursuant to the “discovery rule” and/or the
“doctrine of fraudulent concealment,” the statute of limitations
was tolled for the six month period in which the dentist had
“lulled” him into non-action by leading him to believe that the
numbness was normal and would eventually disappear after about
six months. The Pennsylvania Supreme Court held that there were
factual issues precluding summary judgment on both the
“discovery rule” theory for tolling of the statute of
limitations and the “doctrine of fraudulent concealment” theory
for such tolling. In doing so, the Court implicitly held that,
if a jury believed that the dentist had in fact made the
“lulling” statements alleged by the plaintiff, tolling could be
13

warranted under the “discovery rule” and/or the “doctrine of
fraudulent concealment” if it were also determined that the
plaintiff had acted with “reasonable diligence under the
circumstances” in pursuing his claims. With respect to the
“doctrine of fraudulent concealment,” the Pennsylvania Supreme
Court provided the following guidance:
In addition to the discovery rule, the doctrine
of fraudulent concealment serves to toll the
running of the statute of limitations. The
doctrine is based on a theory of estoppel, and
provides that the defendant may not invoke the
statute of limitations, if through fraud or
concealment, he causes the plaintiff to relax his
vigilance or deviate from his right of inquiry
into the facts. Deemer, 187 A. at 215. The
doctrine does not require fraud in the strictest
sense encompassing an intent to deceive, but
rather, fraud in the broadest sense, which
includes an unintentional deception. Id. The
plaintiff has the burden of proving fraudulent
concealment by clear, precise, and convincing
evidence. Molineux v. Reed, 516 Pa. 398, 532 A.2d
792, 794 (1987). While it is for the court to
determine whether an estoppel results from
established facts, it is for the jury to say
whether the remarks that are alleged to
constitute the fraud or concealment were made.
Nesbitt, 204 A.2d at 476.
582 Pa. at 270-71, 870 A.2d at 860. (Emphasis added.)
D.

Statute of Limitations (Under Maritime Law)
This Court has previously addressed the statute of

limitations under maritime law. In Nelson v. A.W. Chesterton
Co., the Court addressed this issue and also set forth, inter

14

alia, the test for determining when an asbestos cause of action
has accrued under maritime law:
The statute of limitations for maritime torts is
governed by 46 U.S.C. § 30106 (previously 46
U.S.C. app. § 763(a)), which provides, “Except as
otherwise provided by law, a civil action for
damages for personal injury or death arising out
of a maritime tort must be brought within 3 years
after the cause of action arose.” A cause of
action under general maritime law “accrues when a
plaintiff has had a reasonable opportunity to
discover his injury, its cause, and the link
between the two.” Crisman v. Odeco, Inc., 932
F.2d 413, 415 (5th Cir. 1991). Under the
discovery rule, “[w]hen the specific date of
injury cannot be determined because an injury
results from continual exposure to a harmful
condition over a period of time, a plaintiff's
cause of action accrues when the injury manifests
itself.” McCain v. CSX Transp., Inc., 708
F.Supp.2d at 498 (quoting Czyzewski v. Conrail,
1997 WL 9791 (E.D. Pa. 1997)). The key inquiry is
whether the plaintiff has knowledge of the injury
and its cause. McCain, 708 F. Supp. 2d at 498
(citing United States v. Kubrick, 444 U.S. 111,
122–23, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979)
(interpreting the Federal Tort Claims Act)).
No. 10–69365, 2011 WL 6016990, at *1 (E.D. Pa. 2011) (Robreno,
J) (emphasis added).

III. THE PARTIES’ ARGUMENTS
A.

Defendant’s Arguments
Defendant contends that Plaintiffs’ claims are barred

by Pennsylvania’s two-year-long statute of limitations for
asbestos injury claims. According to Defendant, this time bar is
set forth by statutory provision, which reads:
15

An action to recover damages for injury to a person or for
the death of a person caused by exposure to asbestos shall
be commenced within two years from the date on which the
person is informed by a licensed physician that the person
has been injured by such exposure or upon the date on which
the person knew or in the exercise of reasonable diligence
should have known that the person had an injury which was
caused by such exposure, whichever date occurs first.

42 Pa. C.S. 5524(8) (emphasis added). Defendant also cites to
Wygant v. Gen. Elec. Co., 113 A.3d 310 (Pa. Super. 2015), which
applies and construes this statutory provision, as well as
various other decisions from Pennsylvania courts that address
the statute of limitations: Groover v. Riddle Memorial Hospital,
357 Pa. Super. 420, 516 A.2d 53, 57 (Pa. Super. 1986), alloc.
denied, 528 A.2d 957 (Pa. 1987), Pocono International Raceway,
Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (Pa.
1983), Ingenito v. AC&S, Inc., 430 Pa. Super. 129, 633 A.2d
1172, 1175 (Pa. Super. 1993), and Burnside & Abbott
Laboratories, 351 Pa. Super. 264, 505 A.2d 973, 976 (Pa. Super.
1985).
Defendant asserts, based on medical records, that
there is evidence that, by December 2012, Mr. Conneen knew of
his lung cancer diagnosis and had discussed with his physicians
the fact that he had been exposed to asbestos. Specifically,
Defendant points to:

16

(1) a December 7, 2012 “Clinical Report,” which
Defendant asserts indicates a diagnosis of
“[m]ediastinal mass (R/O lung CA),” (Def. Ex.
C at 3 (ECF No. 90-3 at 4));
(2) a December 18, 2012 “CT Scan [Final] Report,”
indicating that Mr. Conneen’s clinical history
was that of a “68-year-old male with lung
cancer,” (Def. Ex. D at 1 (ECF No. 90-4));
(3) a report that Defendant characterizes as
“memorializing a December 18, 2012
consultation among Mr. Conneen, his family,
and Dr. John G. Devlin, indicat[ing] that Mr.
Conneen had a ‘known history of asbestos
exposure’ . . . [and] that Mr. Conneen was
‘completely negative for any tobacco use,
whatsoever’,” (Def. Ex. E at 2 (ECF No. 90-5)
(emphasis added)) (cited in Def. Mot. at 2
(ECF No. 90 at 3);
(4) a December 19, 2012 “Surgical Pathology
Report,” which indicates a “final diagnosis”
of “lung, right upper lobe, transbronchial
biopsy: poorly differentiated non-small cell
carcinoma, favor adenocarcinoma,” (Def. Ex. F
at 1 (ECF No. 90-6)); and
(5) a December 20, 2012 “PET/CT Scan Report” (a)
indicating that Mr. Conneen was a “68-year-old
male with recently diagnosed lung carcinoma”
who was in the process of “[i]nitial staging”
of the cancer,” (b) making reference to a
“prior diagnostic CT of the chest dated
12/07/2012,” (c) including an “impression” of
a “known malignancy in the medial right upper
lobe/suprahilar region which encases the right
upper lobe bronchus” and (d) noting other
findings “suspicious for an additional
malignant lesion,” (Def. Ex. G (ECF No. 907)).
Def. Mot. at 2 (ECF No. 90 at 3). Defendant asserts that the
“discovery rule” does not save Mr. Conneen’s claims because he
was not diligent in attempting to discover the cause of his lung
17

cancer. In support of this position, Defendant argues that the
fact that Mr. Conneen had never smoked in his life “should have
heightened his inquiry as to the cause of the lung cancer.”
(Def. Reply at 3, ECF No. 115 at 3.)

B.

Plaintiffs’ Arguments
As a preliminary matter, Plaintiffs contend that

Defendant has not met its initial burden of shifting to
Plaintiffs the burden of establishing that their action was
timely filed: “Defendants have provided no evidence, subjective
or objective, that Mr. Conneen should, or could, have been on
notice that his lung cancer was related to asbestos exposure
before February 12, 2013.” (Pl. Opp. at 2, ECF No. 114 at 2
(emphasis added).)
Plaintiffs also assert that summary judgment is not
warranted because Mr. Conneen did not learn that asbestos may
have been a cause of his lung cancer until February 12, 2013.
(Pl. Opp. at 6, ECF No. 114 at 6.) As such, according to
Plaintiffs, their lawsuit was filed within two (2) years of
learning that there was a basis for an asbestos-related claim.
Although Plaintiffs concede that Mr. Conneen was
diagnosed with lung cancer in December of 2012, they contend
that his claims are nonetheless timely (pursuant to the
“discovery rule” applicable in cases of a “creeping disease”

18

such as his asbestos-related illness) because he was reasonably
diligent in inquiring about the cause of his lung cancer – and
determining within approximately two months thereafter – that
asbestos may have been a cause of this cancer. (Pl. Opp. at 2,
ECF No. 114 at 2.) Plaintiffs point out that none of his doctors
advised him that asbestos may have caused his illness and that
it was only upon his own inquiry and investigation that this
possibility became known to him. (Pl. Opp. at 6, ECF No. 114 at
6.) Moreover, Plaintiffs note that a December 24, 2012 medical
chart note from one of his physicians (Dr. Assarsson) explicitly
states “no worrisome exposures,” despite the fact that Mr.
Conneen had answered a series of questions pertaining to his
line of work and any workplace exposures to chemicals,
substances, or asbestos. (Pl. Opp. at 2 and 4-5, ECF No. 114 at
2 and 4-5.)
As legal authority for their position, Plaintiffs rely
upon: Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245 (1995),
Cappelli v. York Operating Co., 711 A.2d 481, 486 (Pa. Super.
Ct. 1998), Cathcart v. Keene Industrial Insulation, 324 Pa.
Super. 123, 135-36, 471 A.2d 493, 500 (1984), Anthony v. Koppers
Co., Inc., 284 Pa. Super. 81, 91, 425 A.2d 428, 434 (1980), rev.
other grnds, 496 Pa. 119, 436 A.2d 181 (1981), and Pearce v.
Salvation Army, 449 Pa. Super. 654, 658, 674 A.2d 1123, 1125
(1996).
19

In support of their assertions, Plaintiffs cite to the
following evidence (some of which overlaps with the evidence
relied upon by Defendant):
•

Affidavit of Mr. Conneen
Mr. Conneen states in his affidavit that:
(3)

In December 2012, doctors found a mass on my
lung by x-ray and CT scan.

(4)

I underwent a biopsy on December 17, 2015 at
Bryn Mawr Hospital.

(5)

On December 18, 2012, Dr. John Devlin asked
me a lot of questions during a consultation;
including what I did for a living, whether I
smoked, and if I had various exposures, like
second hand smoke, asbestos, chemicals, and
other things. While I was told I had lung
cancer during the consultation, I was not
told what caused, or may have caused it, to
develop. At that time, the most immediate
concern for my physicians, for me and for my
family was to treat the cancer and remove it
from my body so that I might live.

(6)

On December 24, 2012, I had a consultation
with Erik Assarsson, MD at Bryn Mawr
Hospital who had copies of my records. Again
we discussed the history I gave and
according to Dr. Assarsson, he noted I did
not have any “worrisome exposures.”

(7)

Because the doctors at Bryn Mawr Hospital
were uncomfortable performing the surgery I
needed, we focused on locating another
surgeon to remove the tumor.

(8)

On January 18, 201[3], I had lung surgery at
the University of Pennsylvania Hospital.

(9)

I am aware the records show I was in the
hospital for my lung cancer surgery from
January 18, 201[3] until I was discharged on
January 26, 2013.

(10) After recuperating from my surgery, and on
February 12, 2013, my family and I had a
20

surgical follow-up consultation with John C.
Kucharczuk, MD at the University of
Pennsylvania Hospital who reviewed the
pathology findings with us.
(11) It was at this February 12, 2013, meeting
that we asked Dr. Kucharczuk what might have
caused my cancer and he indicated that
asbestos may have been a cause. This was the
first indication I had that asbestos may
have been a cause of my cancer.
(12) I am also aware that at least one record
states that I smoked many years ago. I never
smoked cigarettes and that record is in
error.
(Pl. Ex. A, ECF No. 114 at 13-15. (Emphasis added.))
•

Bronchoscopy Report (Dated December 17, 2012)
Plaintiffs include a bronchoscopy report from Main
Line Hospitals (Bryn Mawr Hospital) dated December
17, 2012, which indicates that a bronchoscopy was
performed on Mr. Conneen on December 17, 2012. The
report includes Dr. Piatt’s typewritten name at the
bottom (though there is no signature on the report
and the line for identification of the report’s
dictator is left blank). The report contains no
mention of cancer, asbestos, or asbestos exposure.
(Pl. Ex. B, ECF No. 114 at 16-17.)

•

Cytopathology Report (Dated December 18, 2012)
Plaintiffs include a cytopathology report from Main
Line Health Laboratories (Lankenau Medical Center)
dated December 18, 2012, which indicates that a
bronchial brushing and a bronchial washing were each
“positive” and that notes for each: “Cells
compatible with poorly differentiated carcinoma,
non-small cell type (See biospsy . . . for further
work-up).” The report identifies Dr. Clarke Piatt,
M.D. as the physician, and indicates that it was
prepared (and finalized) on December 18, 2012 by
Gary S. Daum, M.D. It contains no diagnosis of
cancer nor any mention of asbestos or asbestos
exposure.
(Pl. Ex. C, ECF No. 114 at 18-19.)
21

•

Surgical Pathology Report (Dated December 19, 2012)
Plaintiffs include a cytopathology report from Main
Line Health Laboratories (Bryn Mawr Hospital), which
is dated December 19, 2012 and indicates a “final
diagnosis” of: “lung, right upper lobe,
transbronchial biopsy: poorly differentiated nonsmall cell carcinoma, favor adenocarcinoma. See
comment.” The report identifies Dr. Clarke Piatt,
M.D. as the physician, indicates that it was
prepared on December 17, 2012 by Dominic Boccella,
PA (ASCP), that the “findings were discussed with
Dr. Piatt on December 18, 2012,” and that it was
thereafter “electronically signed out” by Vincenzo
Ciocca, D.O. on December 19, 2012. The report
contains no mention of asbestos or asbestos
exposure.
(Pl. Ex. D, ECF No. 114 at 20-21.)

•

Letter from Dr. Assarsson (Dated December 24, 2012)
Plaintiffs include a December 24, 2012 letter from
Dr. Assarsson to Dr. Piatt (with “cc” to Dr.
Hamsher, Dr. Walker, and the Tumor Registry), which
states, inter alia: “Pathology described a poorly
differentiated non-small cell bronchogenic carcinoma
favoring adenocarcinoma. . . . Mr. Conneen . . .
leads a very active lifestyle and typically record
27 miles per week on his treadmill. There is no
history of tobacco use or worrisome exposures. . . .
I have had a thorough discussion with Mr. Conneen
and his family regarding the implications of these
findings.” (Emphasis added.) The record records
“Impression:” as “Non-small cell bronchogenic
carcinoma favoring adenocarcinoma, presenting with
right upper lobe collapse, stage uncertain.” The
letter contains no mention of asbestos or asbestos
exposure.
(Pl. Ex. E, ECF No. 114 at 22-24.)

•

Hospital Discharge Summary
A January 26, 2013 “Hospital Discharge Summary” from
Penn Medicine indicates that Mr. Conneen was
admitted to the Hospital of the University of
Pennsylvania on January 18, 2013 after surgeries
(including a “[r]ight pneumonectomy,
[t]racheoplasty, [p]atrial SVC [r]esection, [and
22

[m]ediastinoscopy”) were performed there that day,
and that he was thereafter released from the
hospital on January 26, 2013. The summary identifies
Dr. John Kucharczuk as the attending physician at
the time of discharge and the physician for postdischarge follow-up. It indicates that it has been
signed (in typewritten signature) by Benjamin
Taylor, M.D. on January 26, 2013, and that it was
thereafter electronically signed by John Kucharczuk,
M.D. on February 6, 2013. The summary contains no
mention of asbestos or asbestos exposure.
(Pl. Ex. F, ECF No. 114 at 25-30.)
•

Surgical Pathology Report (Dated January 29, 2013)
A “Surgical Pathology Report” by the Department of
Pathology and Lab Medicine (Division of Anatomic
Pathology) of the Hospital of the University of
Pennsylvania (University of Pennsylvania Health
System) contains information pertaining to a
specimen (from Mr. Conneen’s lung lobe) obtaining
during a pneumonectomy. The report discusses a tumor
in his lung and states, “[l]esion on radiograph
transbronchial biopsy showed non-small cell lung
cancer favoring adenocarcinoma.” (Page 1.) The
“final diagnosis” indicates, in part: “Invasive
poorly differentiated adenocarcinoma . . . involving
right upper and lower lobes.” (Page 2.) The report
indicates that the collection date was January 18,
2013, the receipt date was January 18, 2013, and the
date of verification was January 29, 2013. Two
pathologists are identified: Charabas G. Deshpande,
M.D. and MacLean P. Nasrallah, M.D., Ph.D. Dr.
Deshpande is identified as the report’s verifier.
(Page 3.) The report indicates four “Frozen Section
Diagnos[e]s”: three (3) of these are indicated to
have been “called to Dr. Kucharczuk at 11:35 AM [no
date specified] by CRG, Michelle R. Pramick, MD,
Christine Carleton, PA(ASCP), Paul J Zhang, MD”; one
(1) of these is indicated to have been “called to
Dr. Kucharczuk at 1:46 PM [no date specified] via
Michelle R. Pramick, MD, CRG, Christine Carleton,
PA(ASCP), Paul J Zhang, MD.” (Page 4.) The report
contains no mention of asbestos or asbestos
exposure.
(Pl. Ex. G, ECF No. 114 at 31-37.)
23

•

Letter from Division of Thoracic Surgery (HUP)
(Dated February 12, 2013)
A letter dated February 12, 2013 from Dr. John
Kucharczuk, M.D., Associate Professor of Surgery
with Penn Medicine (Hospital of the University of
Pennsylvania) to Dr. Clark Piatt, M.D., indicates
that Mr. Conneen was seen by Dr. Kucharczuk that day
and was admitted to the hospital for further
testing, as he was not feeling well. The letter does
not contain a handwritten signature, but appears to
contain an electronic signature by (or on behalf of)
Dr. Kucharczuk. The letter contains no mention of
asbestos or asbestos exposure.
(Pl. Ex. H, ECF No. 114 at 38-39.)

IV.

DISCUSSION AND ANALYSIS
Defendant asserts that the statute of limitations on

Plaintiffs’ claims expired on December 18, 2014 (i.e., two years
after the medical records from Mr. Connen’s lung cancer
treatment contain a mention of asbestos exposure), and that the
“discovery rule” does not save Plaintiffs’ claims (filed on
January 20, 2015) because Mr. Conneen was not reasonably
diligent in attempting to identify the cause of his lung cancer
in order to pursue the claims. Plaintiffs assert that Mr.
Conneen did not learn that his lung cancer may have been caused
by asbestos until February 12, 2013, upon his own inquiry to Dr.
Kucharczuk, such that his Complaint was clearly filed within two
years of his learning of this information. Plaintiffs contend
that Mr. Conneen was reasonably diligent in investigating the
cause of his illness and pursuing his claims.

24

The Court now explains why summary judgment in favor
of Defendant is not warranted under either the maritime law
statute of limitations or the Pennsylvania law statute of
limitations:
A.

Maritime Law

To the extent that maritime law is applicable to
Plaintiffs’ claim(s) against Defendant, summary judgment is not
warranted even by Defendant’s own theory that Mr. Conneen
learned of his potential claims by December 2012. This is
because the applicable statute of limitations under maritime law
is three years from the time the cause of action arose – which,
under maritime law occurs “when a plaintiff has had a reasonable
opportunity to discover his injury, its cause, and the link
between the two.” Crisman v. Odeco, Inc., 932 F.2d 413, 415 (5th
Cir. 1991) (cited by Nelson, 2011 WL 6016990, at *1). Therefore,
even if, as Defendant asserts, Mr. Conneen’s statute of
limitations began to run in December of 2012 (when he was first
diagnosed with lung cancer and when his medical records first
mention a history of asbestos exposure), his Complaint – which
was filed in January of 2015 (i.e., within three years of
December 2012) – is clearly timely under maritime law. As such,
to the extent that maritime law is applicable to Plaintiffs’
claim(s) against Defendant, summary judgment in favor of
Defendant is not warranted. Id.
25

Having determined that the maritime law statute of
limitations does not bar any of Plaintiffs’ claims, the Court
next considers what effect (if any) the Pennsylvania statute of
limitations has on Plaintiffs’ claims.
B.

Pennsylvania Law

It is undisputed that Mr. Conneen was first diagnosed
with lung cancer in December of 2012. It is undisputed that Mr.
Conneen’s Complaint was filed on January 20, 2015. It is also
undisputed that the Pennsylvania statute of limitations
applicable to an asbestos-related injury is, in general, two
years – and that Pennsylvania allows for tolling of the statute
of limitations in some circumstances, including those in which a
plaintiff was reasonably diligent in attempting to identify the
cause of an injury but was unable to do so for some period of
time due to no fault of his own (i.e., exceptions to the statute
of limitations exists, such as one pursuant to the “discovery
rule”).
What is disputed, then, are the following two matters:
(1) the date on which Mr. Conneen first discovered that asbestos
exposure was potentially a cause of his lung cancer, and (2)
whether he acted with reasonable diligence in attempting to
identify the cause of his lung cancer. The Court will address
each of these in turn:

26

1.

Date of Discovery of Asbestos as a Possible
Cause

Defendant asserts that Mr. Conneen knew (or should
have known) that asbestos was a potential cause of his lung
cancer (such that he could bring an asbestos-related claim) by
December 18, 2012. This assertion is based upon (1) the December
18, 2012 “CT Scan [Final] Report,” indicating that Mr. Conneen
had a diagnosis of lung cancer, (Pl. Ex. D at 1 (ECF No. 90-4)),
and (2) the December 18, 2012 report that Defendant
characterizes as “memorializing a December 18, 2012 consultation
among Mr. Conneen, his family, and Dr. John G. Devlin,
indicat[ing] that Mr. Conneen had a ‘known history of asbestos
exposure’ . . . [and] that Mr. Conneen was ‘completely negative
for any tobacco use, whatsoever’.” (Pl. Ex. E at 2 (ECF No. 905)). (Def. Mot. at 2 (ECF No. 90 at 3).)
Mr. Conneen concedes that he was questioned about
occupational asbestos exposure (among numerous other things,
such as chemicals, toxins, and smoking) in December of 2012 –
but asserts that none of his many doctors every informed him
that asbestos may have caused his cancer, and that he did not
learn that asbestos was even potentially a cause of his lung
cancer until February 12, 2013, when he met with Dr. Kucharczuk
and took it upon himself to question Dr. Kucharczuk about what
may have caused his cancer. Mr. Conneen also asserts that his

27

medical records contained errors: (1) explicitly stated (after
he divulged his history of asbestos exposure in response to a
patient questionnaire) that he had experienced “no worrisome
exposures,” and (2) incorrectly noted in some places that he was
a smoker when he has never smoked at all during his lifetime.
The Court has reviewed the medical records (and other
evidence) submitted by the parties on both sides of the case.
The key document upon which Defendant’s argument rests is the
December 18, 2012 medical record mentioning a history of
asbestos exposure – which is also the sole document (in the
medical records submitted by either party) that mentions
asbestos. The document is a typewritten, three-page-long
“Consultation” note on Main Line Hospitals (Bryn Mawr Hospital)
letterhead, which appears to be a file note created by a
physician for record-keeping purposes. The document states,
inter alia, “Completely negative for any tobacco use, whatsoever
. . . . Notably, [Mr. Conneen} does have known history of
asbestos exposure, and possibly other industrial chemical
exposure on the job.” (Def. Ex. E at 2 (ECF No. 90-5).) It is
not clear who created the document, as it does not contain a
handwritten signature and the space for identifying the dictator
of the note remains blank. The document contains a typewritten
“John G. Devlin, M.D.” toward the end and some electronic
identifiers consisting solely of numbers (perhaps indicating
28

that it was Dr. Devlin who created the note – or perhaps that
someone else created the note and put Dr. Devlin’s name on it –
perhaps at his direction (or perhaps not at his direction)).
More importantly, however, there is nothing in the
document that indicates that it was ever provided or shown to
Mr. Conneen (or his family), or indicates the date of any
alleged provision or showing. There is nothing in the document
that indicates any discussion was held with Mr. Conneen about a
potential link between asbestos exposure and his cancer at that
December 18, 2012 consultation (or any time thereafter). Rather,
the document indicates that it was sent to four (4) other
physicians (Drs. Assarsson, Piatt, Hamsher, and Walker) – one of
whom wrote a letter thereafter (on December 24, 2012) explicitly
stating that Mr. Conneen had experienced “no worrisome
exposure.” As such, the existence of the document does not even
suggest – much less establish – that Mr. Conneen was advised as
to any potential link between his cancer and asbestos exposure
(or that any such causal relationship was even alluded to).
Perhaps of significance, however, in determining when
Mr. Conneen learned of the potential causal link between
asbestos exposure and his cancer (and also for purposes of (1)
the Court’s consideration below of (a) “reasonable diligence” on
the part of Mr. Conneen and/or (b) the potential availability of
the “fraudulent concealment” theory of tolling, as well as (2)
29

the identification of material factual disputes as to what was
known and communicated by whom (and when) regarding Mr.
Conneen’s cancer and its cause), what perhaps can reasonably be
inferred from the document is that five (5) separate physicians
involved in Mr. Conneen’s care at Main Line Hospital/Bryn Mawr
Hospital (Drs. Devlin, Assarsson, Piatt, Hamsher, and Walker)
were aware (or had information in their records indicating) that
Mr. Conneen had experienced occupational asbestos exposure but,
according to Mr. Conneen, never once informed him that asbestos
may have caused his cancer. (The Court notes that this is an
assertion that it cannot conclude is implausible, given the lack
of any documentation in the medical records that anyone ever
discussed with Mr. Conneen (or his subsequent physician (Dr.
Kucharczuk) at the University of Pennsylvania Health
System/Hospital of the University of Pennsylvania, to whom these
physicians appear to have referred Mr. Conneen) a potential link
between the asbestos exposure they were aware of and the lung
cancer for which they were treating him.)
Perhaps also of some significance for these
considerations, while the December 18, 2012 document exchanged
among the five physicians clearly states that (1) Mr. Conneen is
a lifelong non-smoker who (2) had a “notable” history of
asbestos exposure” – a subsequent letter from one of these
physicians (on December 24, 2012) explicitly denies any
30

“worrisome exposures.” Similarly, there is potentially some
significance in the fact that, according to Mr. Conneen, there
were other records created in his chart which stated incorrectly
and/or erroneously that he had a history of smoking when in
fact, as the December 18, 2012 record indicates and Mr. Conneen
confirms, he is a lifelong non-smoker. In short, the December
18, 2012 note (which appears to be an internal hospital record)
seems to (1) corroborate Mr. Conneen’s version of events (i.e.,
underscores the existence of genuine disputes of material fact
regarding what happened when), and (2) make it surprising that
there is no documentation in his medical records that any of his
at least five (5) physicians discussed with him the possible
cause of his lung cancer (which, based on this information
documented in his chart, could not have been smoking but could,
“notably,” have been asbestos exposure) (i.e., raises fact
questions as to the applicability of the “tolling” exception(s)
to the statute of limitations).
To summarize, the evidence presented by Defendant does
not establish that Mr. Conneen learned of asbestos as a
potential cause of his cancer in December of 2012. Moreover,
because Mr. Conneen asserts that he first learned of this
possible link in February 2013 (less than two years before he
filed his Complaint), there is a genuine dispute of material
fact as to when Mr. Conneen learned of this possible causal
31

link. Therefore, if the statute of limitations began to run when
Mr. Conneen first knew of a possible causal link between
asbestos exposure and his cancer, summary judgment is not
warranted because this is a fact question for the jury. See
Anderson, 477 U.S. at 248-50.
Although Defendant’s evidence has not established when
(or even whether) Mr. Conneen became aware of the possible
causal link between asbestos exposure and his cancer, for
purposes of deciding Defendant’s motion for summary judgment
(i.e., to the extent that Defendant contends that the statute
began to run in December of 2012 regardless of when Mr. Conneen
first learned of the potential causal link), the Court next
considers whether summary judgment may be warranted on grounds
that Mr. Conneen failed to act with reasonable diligence in
attempting to ascertain the cause of his cancer after its
diagnosis in December of 2012. See Fine v. Checcio, 582 Pa. at
267-68, 870 A.2d at 858-59 (“Where, however, reasonable minds
would not differ in finding that a party knew or should have
known on the exercise of reasonable diligence of his injury and
its cause, . . . the discovery rule does not apply as a matter
of law. . . . In addition to the discovery rule, the doctrine of
fraudulent concealment serves to toll the running of the statute
of limitations. The doctrine is based on a theory of estoppel .

32

. . [and] it is for the court to determine whether an estoppel
results” (emphasis added).)

2.

Use of Reasonable Diligence in Identifying
Cause of Illness

It is undisputed that (1) Mr. Conneen learned of his
lung cancer diagnosis in December of 2012, (2) he discussed
asbestos exposure as a possible cause of his illness with Dr.
Kucharczuk on February 12, 2013, and (3) he filed his Complaint
on January 20, 2015. Therefore, it is clear that his Complaint
was filed within two years of his discussion with Dr.
Kucharczuk. The issue for the Court to consider, then, is
whether Mr. Conneen acted with reasonable diligence under the
circumstances in seeking to identify the cause of his cancer
during the period from December 18, 2012 (when he was diagnosed)
until February 12, 2012 (when the evidence indicates he
discovered from Dr. Kucharczuk that asbestos may have been the
cause). See Gustine Uniontown Assocs, 577 Pa. at 30 n.8, 842
A.2d at 344 (citing Crouse, 560 Pa. 394, 745 A.2d at 611).
Pursuant to the guidance in Fine v. Checcio, the Court considers
this issue in the context of each of the two related theories of
“tolling” of the statute of limitations:
a.

The “Discovery Rule”

Unlike the situation in Cochran, this Court cannot say
in the case at hand that Mr. Conneen did not act with reasonable
33

diligence under the circumstances. In Cochran, the plaintiff did
not question his physician about the possible cause of his lung
cancer until over three years and ten months after his
diagnosis, which led the court to reject a tolling of the
statute of limitation under the “discovery rule” exception to
the statute of limitations and grant summary judgment in favor
of the defendant because it found that, as a matter of law, the
plaintiff had not acted with reasonable diligence (i.e.,
reasonable minds could not differ as to whether he had acted
with reasonable diligence). In stark contrast, in the case at
hand, the time that it took Mr. Conneen to discover that
asbestos was potentially a cause of his illness was less than
two months, part of which time he was undergoing surgery,
hospitalized, and recovering from surgery. A reasonable jury
could conclude from these facts that Mr. Conneen was reasonably
diligent under the circumstances. See Anderson, 477 U.S. at 24850. In short, the Court must conclude that, with respect to the
“discovery rule” theory of tolling of the statute of
limitations, there is, at the very least, as genuine dispute of
material fact as to whether Mr. Conneen exercised reasonable
diligence in identifying his claim, such that the statute of
limitations should be tolled during that period of approximately
two months (i.e., such that his Complaint would be timely
pursuant to the “discovery rule”). See id. As such, summary
34

judgment in favor of Defendant on grounds of the Pennsylvania
statute of limitations is not warranted. See id.

b.

The “Doctrine of Fraudulent Concealment”

Because the facts and assertions set forth in
Plaintiffs’ opposition seem to suggest (without directly
asserting) the possibility that the “doctrine of fraudulent
concealment” (which can apply even in situations of
unintentional deception or concealment of evidence) may also be
applicable (and to address the second theory of tolling for a
jury to potentially consider in the event that a jury should
determine that the facts and circumstances pertinent to the
“discovery rule” alone do not warrant tolling), the Court
addresses this second theory of tolling briefly.
The same standard of “reasonable diligence under the
circumstances” is applicable under the “fraudulent concealment”
theory of tolling as under the “discovery rule” theory. See Fine
v. Checcio, 582 Pa. at 271, 870 A.2d at 861. Therefore, the
Court would have to conclude, as just set forth above, that
there is at least a fact question for the jury as to whether Mr.
Conneen acted with reasonable diligence in pursuing his claim.
However, the Court notes that, under the current evidentiary
record submitted in connection with Defendant’s motion for
summary judgment and Plaintiffs’ opposition thereto, there is no

35

direct evidence to establish – and insufficient allegations to
create a fact question on – the issue of whether there was any
conduct that would constitute “fraudulent concealment” or
“unintentional deception” warranting application of this
doctrine). It is true that there is evidence from the medical
records and Mr. Conneen’s affidavit that: (1) at least five
physicians (and perhaps other medical professionals) were
advised that Mr. Conneen was a life-long non-smoker who had
experienced “notable” asbestos exposure, (2) none of these
physicians or medical professionals advised Mr. Conneen that his
lung cancer may have been linked to the asbestos exposure (of
which they were aware), (3) at least one of these physicians
subsequently created a record stating not only that there were
no “worrisome exposures” but also that he had a “had a thorough
discussion with Mr. Conneen and his family regarding the
implications” of this, and (4) someone included erroneous
information in his file indicating that he had a history of
smoking (which would seem to create evidence in his medical
records suggesting – and, thus a basis for misleading other
physicians subsequently reviewing the records to assume or
conclude – that Mr. Conneen’s cancer may have been caused by
smoking). However, this alone does not permit a reasonable jury
to conclude that the statute of limitations was tolled due to
fraudulent or unintentional deception or concealment of the
36

causation information pertinent to an asbestos cause of action.
This is because, under the rationale of Fine v. Checcio, the
rule only applies where the conduct of the defendant has been
fraudulent or otherwise deceptive – and there is no evidence in
the record (or allegations warranting consideration of
circumstantial evidence) that, in the occurrence of this unusual
chain of events, any of the physicians (or other medical
professionals) were either acting on behalf of Defendant to
protect it from liability or were otherwise acting as agents for
Defendant in unintentionally deceiving or “lulling” Mr. Conneen
by concealing his potential claim. See Fine v. Checcio, 582 Pa.
at 270-71, 870 A.2d at 860 (citing Deemer, 324 Pa. 85, 187 A.
215 (Pa. 1936)). For this reason, the Court cannot conclude at
this stage of the litigation that the “doctrine of fraudulent
concealment” is applicable. See Fine v. Checcio, 582 Pa. at 27071, 870 A.2d at 860.

V.

CONCLUSION
Defendant’s motion for summary judgment on grounds of

the Pennsylvania statute of limitations is denied. The Court’s
sua sponte consideration of the availability of summary judgment
on grounds of the maritime law statute of limitations (pursuant
to Federal Rule of Civil Procedure 56(e)(3)) also requires that
the motion be denied.

37