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Miller v. Armstrong World Industries Inc.9/16/1991
The United States Court of Appeals for the Tenth Circuit, pursuant to C.A.R. 21.1, certified the following question of law:
Does discovery of an initial asbestos-related disease (in this case asbestosis-related pleural disease manifested by pleural thickening and pleural calcification) trigger the running of a statute of limitations on a separate, distinct, and later-manifested disease (here asbestosis) engendered by the same asbestos exposure?
We agreed to answer the question and we conclude the answer is no.
I
On June 9, 1987, plaintiff Raymond Miller filed a complaint for damages alleging that, as a proximate result of his exposure to the defendants' defective and unreasonably dangerous asbestos products, he had developed asbestosis, an asbestos-related disease. The complaint also sought damages for increased risk of contracting lung cancer, pleural mesothelioma, peritoneal mesothelioma, laryngeal carcinoma, cancer of the alimentary canal and digestive tract, and cancer of the kidney caused by the inhalation and ingestion of asbestos dust and fibers.
The defendants moved for summary judgment pursuant to Fed. R. Civ. P. 56, contending that Miller was advised of a diagnosis of asbestosis in October 1981, October 1983, and April 1984, see Miller v. Celotex Corp., 708 F. Supp. 306, 308-09 (D. Colo. 1989), and that the statute of limitations bars prosecution of his claim for relief as a matter of law. Miller responded that although he was diagnosed with benign pleural thickening and pleural calcification prior to 1983, he was not diagnosed as having asbestosis until 1985. Based on Miller's medical records and testimony contained in depositions and affidavits, the United States district court entered summary judgment for the defendants, finding that Miller knew or reasonably should have known facts essential to his claim against the defendants in September 1981, and no later than April 1984. Id. at 310. The district court did not address whether the "manifestation of a plaintiff's benign asbestos related condition triggers the running of the statute of limitations on any later manifested malignant asbestos related disease engendered by the same asbestos exposure." Id.
II
In Colorado, the discovery rule provides that a "cause of action for injury to person . . . shall be considered to accrue on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence." ยง 13-80-108(1), 6A C.R.S. (1987). A claim for relief "does not accrue until the plaintiff knows, or should know, in the exercise of reasonable diligence, all material facts essential to show the elements of that cause of action." City of Aurora v. Bechtel Corp., 599 F.2d 382, 389 (10th Cir. 1979) (applying Colorado law). The statute of limitations does not begin to run at the mere discovery of a physical process leading to an injury . Financial Assoc. v. G.E. Johnson Const. Co., 723 P.2d 135, 138 (Colo. 1986) (applying the discovery rule to improvement of real property). An exception exists, however, if the discovery is of a defect causing the injury , id.; but such is not the case here.
The appeal to the Tenth Circuit is from an order granting summary judgment. The relationship of pleural thickening and pleural calcification to asbestosis is a question of fact. In certifying the question of law, the Tenth Circuit stated:
We recognize that the relationship between asbestos-related pleural disease and asbestosis is a factual question. Because this is an appeal from a summary judgment and there is conflicting evidence in the record,
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