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Ott v. Alliedsignal5/19/2005
stos-related disease or illness within the ten-year statute of repose period . . . ." Id.
We agree with Jurich III's general framework and apply it to the facts in the summary judgment record in this case. Jurich III correctly analyzed Ott I and its application to this case on remand. The trial court's task on remand, and our task on de novo review of summary judgment, is to determine whether there is a genuine issue of material fact about the ability of a reasonably experienced physician to diagnose an asbestos-related illness or disease within the repose period. We further agree that "a `manifested' `asbestos-related illness or disease' that could have been diagnosed by a `reasonably experienced physician' refers to a disease that is a clinically-recognized symptomatic condition, or one that could have been detected by a competent physician conducting a routine examination of the patient." Jurich III, 824 N.E.2d at 783.
Dr. Frank's affidavit established that the disease process begins when an individual is first exposed to friable asbestos. "The physiologic changes that begin the process of converting healthy cells into malignant cancer cells begins immediately upon the inhalation of asbestos fibers." Appellant's App. p. 448. These changes remain at the microscopic level for many years, and therefore produce no symptoms. Id. Initially, the disease process "was pre-clinical, asymptomactic and too small to be detected by x-ray, or through other non-surgical detection methods." Id. at 448, 450. Ott's evidence indicated that the only way to detect this pre-clinical activity would be by "a blind open lung biopsy." Id. at 450. But the biopsy procedure "would have been expensive and dangerous to the patients and therefore medically unethical." Id. Dr. Frank related similar testimony in his deposition. Id. at 1236-44.
Dr. Mares' affidavit is similar. He stated that asbestos fibers become embedded in the lungs and "cause physiological injury to those cells, resulting in genetic alterations that then result in malignant transformation." Id. at 490. In some cases, the body's immune system suppresses the damaging effect of the fibers. But " hen the body is unable to control the multiplication and reproduction of the injured cell, the uncontrolled reproduction of the injured cell creates a malignant tumor." Id. At that stage of disease development, the malignancy is only detectable by genetic testing. Dr. Mares' affidavit also stated that the procedures necessary to diagnose the asbestos-caused condition before it manifests clinically would be invasive, risky, and not in the patient's best interests. Dr. Mares related similar facts in his deposition. Id. at 1285-87. Dr. Brody's affidavit related similar facts. Id. at 593-94.
Ott's experts also opined that not everyone develops cancer who is exposed to asbestos or who develops microscopic injury as a result of that exposure. Id. at 1244-45 (Dr. Frank); 1236 (Dr. Mares). Thus, even if testing could properly be done within the ten-year period, and even if the tests would show cell abnormalities within the ten-year repose period, those cell abnormalities would not necessarily lead to cancer after the repose period expired.
The expert opinions raise the further problem that the only way to detect cell abnormalities during the repose period would be to perform an open lung biopsy, an invasive and dangerous procedure that would not have been medically indicated during the repose period, when Jerome was asymptomatic. The experts testified that the usual latency period for this type of cancer-the period between exposure and occurrence of symptoms-varies from ten to thirty or more years.
The undisputed evidence,
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