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Ott v. Alliedsignal5/19/2005
including evidence from Ott's experts, is that there are immediate effects from exposure to asbestos. Some of those effects can be detected immediately, although they do not cause symptoms for some time. Further, while some effects can be detected immediately, they can only be detected by use of a highly invasive procedure that would not be medically appropriate when the disease is asymptomatic. Moreover, even if the cellular-level changes were detected before symptoms occurred, those changes would not indicate with certainty that cancer would eventually develop.
The evidence provided on summary judgment, therefore, does not show that an asbestos-related illness or disease manifested within the ten-year repose period, nor does it show that a reasonably experienced physician would have been able to diagnose an asbestos-related illness or disease during the repose period. Nothing in the record indicates that actual asbestos-related disease was present in Jerome's lungs during the repose period, although there is evidence that the asbestos in his lungs would have caused abnormalities falling short of illness or disease during that time period. For purposes of the statute of repose as interpreted by Ott I, the abnormalities cannot be classified as asbestos-related illness or disease because there is no certainty during the repose period that they would eventually develop into disease.
Judge Barnes' formulation in Jurich III is helpful. He concluded that to fit within the Ott I definition of an illness manifesting within the repose period, it must be 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" during the repose period. Jurich III, 824 N.E.2d at 783. We accept this test because it requires the plaintiff either to display symptoms or to present a condition that can be diagnosed without unusual or heroic measures. In this case, Jerome did not have clinically recognizable, symptomatic lung cancer during the repose period. Nor would his condition have been diagnosable in a regular examination during the repose period-rather, it could have been detected, if at all, only through an invasive and dangerous procedure that would not have been clinically indicated in the absence of symptoms.
Under the test laid out by our supreme court and elaborated in Jurich III, the evidence provided by Ott at summary judgment raised no genuine issue of material fact as to whether Jerome's condition manifested itself during the statute of repose period. Ott herself admits in her brief that Jerome had only "the beginning of malignant process and actual nonmalignant disease in the repose period." Appellant's Br. p. 12. Her characterization that "actual nonmalignant disease" was present refers to cellular-level changes owing to exposure to asbestos that might, but would not necessarily, become cancer. Id. at 5, 11.
The level of asbestos-induced physical change that was present in Jerome during the repose period is not sufficient to meet the standard set by Ott I. Our supreme court indicated that "injury for this purpose [accrual of a cause of action] does not occur upon mere exposure to (or inhalation of) asbestos fibers." Ott I, 785 N.E.2d at 1075. The court elaborated on this conclusion in footnote 8 of the opinion, which directly followed the statement quoted in the previous sentence; the cases cited in footnote 8 further support the conclusion that our supreme court had concluded that actual symptoms of asbestos-generated illness had to occur before a cause of action was present.
Footnote 8 cited cases from other jurisdictions holding that mere exposure to
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