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Kaeding v. Grace6/23/1998
tosis." However, what the majority fails to point out is that subsequent to each of these entries, Kaeding was again examined with contradictory findings, such as "scarring from old TB," "emphysema from history of smoking and working at W.R. Grace," "old empyema," and respiratory problems "secondary to smoking and pneumonia." What difference does it make if medical records include reference to asbestosis (even assuming it had been communicated to him in spite of his direct testimony that it had not) when follow-up exams suggested something to the contrary?
The majority also observes that while Kaeding received no technical diagnosis of asbestosis, several doctors were of the opinion prior to 1994 that his problems were attributable, in part, to asbestosis. Apparently, the majority feels more qualified to draw those Conclusions from a review of Kaeding's medical records than was Dr. Whitehouse, who is the only physician to testify in this case and who testified that Kaeding's medical records include no diagnosis of asbestosis prior to his, which was made in 1996.
Finally, the majority concludes that it is significant that in 1992 Dr. Whitehouse reported x-ray findings consistent with asbestosis. However, as pointed out, the majority totally ignores the fact that on at least four occasions subsequent to that report, Kaeding was examined again by health care providers who concluded that his chest exams were normal or that any abnormalities were attributable to conditions other than asbestosis.
The question in this case is when Kaeding knew, or by the exercise of reasonable diligence should have known, that he had a disabling condition known as asbestosis caused by his employment with W.R. Grace & Co. Based on Kaeding's direct testimony, and the only medical testimony offered in this case, he did not know that fact until 1996. Furthermore, based on any reasonable inference from the inconsistent and contradictory findings in his medical records, it was reasonable for him to believe prior to 1996 that any symptoms he was experiencing or any abnormal finding from his x-ray films were attributable to something other than asbestosis. At best, there was contradictory evidence which it is the function of a jury, not this Court or the District Court, to resolve.
Summary judgment on a factual issue is an extreme remedy which should be reserved for those situations where the facts are not in dispute. No fair review of the record in this case could lead to that conclusion.
For these reasons I Dissent from the majority opinion. I would reverse the judgment of the District Court and remand to the District Court for a trial to determine whether Donald Kaeding's claim against W.R. Grace & Co. was barred by the statute of limitations.
/S/ TERRY N. TRIEWEILER
Justice William E. Hunt, Sr., joins in the foregoing Dissenting opinion.
/S/ WILLIAM E. HUNT, SR.
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