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Nolan v. Johns-manville Asbestos & Magnesia





APPEAL from the Circuit Court of Cook County; the Hon. PAUL ELWARD, Judge, presiding.


Plaintiff appeals from an order entered by the circuit court of Cook County on February 8, 1977, granting summary judgment to all defendants, predicated upon decedent's cause of action being barred by the two-year personal injury statute of limitations (Ill. Rev. Stat. 1977, ch. 83, par. 15). The summary judgment was based upon the court's consideration of pleadings, deposition testimony, exhibits, briefs and oral argument of counsel. The principal issues presented on appeal are whether plaintiff has properly pleaded and is entitled to application of the discovery rule under the circumstances of this case, and, if so, whether there are genuine issues of material fact relating to such application, or not. Edwin L. Nolan, Jr. (hereinafter "Nolan") died during the pendency of the appeal; his wife has been substituted as special administratrix to prosecute the appeal as plaintiff.

For the reasons hereinafter set forth, we reverse and remand.

Defendants named in the lawsuit were alleged to have manufactured, distributed and sold defective asbestos and fiberglass products, with which Nolan worked, and to have failed to warn of dangers inherent in the products. Nolan testified in his deposition that he had been employed as an asbestos insulator from sometime in 1941 until May 1973. His work required him to apply asbestos and fiberglass pipe coverings for the purpose of insulating hot and cold heating ducts. The types of products with which he worked included asbestos cements, 85 percent magnesia pipe coverings, calcium silicates and other materials in which asbestos was used as a binder.

In 1957 Nolan began experiencing a generalized weakness throughout his body, shortness of breath and a little more difficulty in climbing stairs and carrying heavy equipment and materials while working. Some of his co-workers were also beginning to similarly complain. With respect to his knowledge of the dangers inherent in using asbestos, the following questions were asked and answered during the course of Nolan's deposition:

"MR. BELL: Q. When was the first time you were aware of any danger from the use or contact with asbestos products?

MR. NOLAN: A. I couldn't say exactly. I wouldn't really know that.

A. I wouldn't really know that because we were never informed when we worked on these jobs. Nobody ever told us that there was any danger to it.

Q. There must have been some point in time when you became * * * aware of the danger of asbestos products?

A. I'd say in the late Fifties probably.

Q. Late Fifties?

A. That's when I started thinking about it, yes.

Q. Is there some year that you could pinpoint in the late Fifties?

A. Well, maybe 1957 probably because that's when I got my first chest x-ray.

Q. 1957. And could you give us the facts surrounding your awareness at that point in time of possible dangers from the use of asbestos?

A. Well, yes. A lot of people I worked with were beginning to complain and I also had a problem. I was beginning to get short of breath and I didn't know why and the stairs started to get a little harder to climb."

Further in the deposition the following exchange took place:

"Q. I previously asked you when you first became aware of the relationship between asbestos and health problems and you indicated in 1957. Can you explain to me how you became aware of the relationship at that point in time?

A. Well, I started thinking about what was happening to me and I started thinking maybe it was the materials I was working with."

Because of his symptoms, in 1957 Nolan had X rays taken at a mobile unit of the Suburban Tuberculosis Sanitarium in Hinsdale, Illinois. A card in the mail from them stated that he did not have tuberculosis but that "there were problems in the lung" he should have looked into without identifying what those problems were. He saw his family physician, Dr. Robert J. Muench, who examined him and told him that he did have "lung problems," but did not say what they were. Dr. Muench referred him to Dr. Monty Meldmann, a psychiatrist, who gave Nolan a physical examination and had X rays taken. Dr. Meldmann told him "that I did have a lung problem but the complaints I was making wasn't — they weren't strong enough. He thought that my problem was partly mental, also."

According to his testimony, Nolan had no further contact with any doctor or hospital concerning his lungs until 1965, when he again contacted Dr. Muench, advising him that his earlier complaints were becoming more pronounced. He was hospitalized in St. Joseph's Hospital, Elgin, for examination and underwent pulmonary function tests and chest X rays. The specific complaints related by Nolan to Dr. Muench were that Nolan began finding it harder to breathe, to carry heavy loads, to climb stairs and to climb scaffolds. Dr. Muench testified in his deposition that the report with regard to X-ray findings revealed the following: "`The findings suggest a generalized pulmonary fibrosis or interstitial inflammatory process. Pneumonoconiosis is a consideration to be correlated with the occupation history. Chronic interstitial pneumonia, sarcoidosis, and pulmonary fungus disease are other considerations to be correlated with the clinical and laboratory data. The accentuated findings at the left anterior lower lung field may represent a supraimposed acute inflammation. Comparison to previous chest X rays will be of value.'" The cause of the pulmonary fibrosis was undetermined. Pulmonary function tests were ordered, results showing two satisfactory vital capacities and a third one lower.

According to Nolan, after his examination, he was made aware that he had pulmonary fibrosis, but asbestosis was never mentioned to him then. He did not ask what pulmonary fibrosis meant. Dr. Muench advised him that there was nothing he could do for him, nor did he indicate any causal connection between Nolan's job as an asbestos worker and the condition of his lungs; however, he had a strong suspicion that his physical condition and his contact with asbestos and fibrous products were related, after he had taken the X rays. When he was discharged from St. Joseph's Hospital, his condition was diagnosed as "Syncopal vertigo of undetermined origin, probably functional." No diagnosis was made as to pulmonary pathology that might have been present.

When Nolan came out of the hospital, he was dissatisfied with what he had been told by Dr. Muench. He went to the Veterans Administration Hospital where he sought another opinion, but was refused admittance, being told by the interviewing VA doctor after a telephone call to Dr. Muench that he was in good hands. From 1965 to May of 1973 Nolan saw no doctor and entered no hospital or other institution concerning his lungs. According to his wife, who was also deposed, he ...

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