Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SCHULTZ v. KEENE CORP.

January 29, 1990

JOHN SCHULTZ and JOANN SCHULTZ, Plaintiffs
v.
KEENE CORPORATION, et al., Defendants



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 Plaintiff John Schultz claims to be suffering from asbestosis. He initiated this diversity action against a host of asbestos sellers, manufacturers, and distributors. Some of these defendants have moved for summary judgment. For the reasons stated herein, the court grants summary judgment in favor of defendants AC & S, Inc., Fibreboard Corporation, and Pittsburgh Corning Corporation. With respect to defendant Owens-Illinois, Inc., summary judgment is entered only on Count I of plaintiffs' complaint. The motion for summary judgment of defendants Armstrong World Industries, Inc., Keene Corporation, National Gypsum Company, Owens-Corning Fiberglas Corporation, T & N, plc, and The Flintkote Company is denied.

 FACTS

 Since 1955, John Schultz has worked as a sheet metal worker. Over this period of time, he worked at numerous industrial and commercial job sites throughout the Chicago area and the Midwest. Schultz was exposed to asbestos at many of these job sites. In 1983, Schultz' neighbor (who was also a sheet metal worker) died from lung cancer caused by his long-term exposure to asbestos. Prompted in part by the death of his neighbor, Schultz went to Henrotin Health and Fitness Center for a physical examination. When Schultz' chest X-ray revealed cloudiness in his lungs, he was referred to a pulmonologist for further examination. Dr. James West, the pulmonologist who examined Schultz, told him that the irregularity in his lungs could be asbestos related, and that he was at risk of developing lung cancer. Although Schultz experienced shortness of breath, he claims to have been unaware that he was suffering from asbestosis until 1986.

 On July 25, 1986, Schultz instituted this tort action against 21 corporations that are allegedly responsible for his exposure to asbestos. *fn1" Schultz asserts claims based on strict liability, negligence, and willful and wanton conduct. In addition, Schultz' wife asserts a claim for loss of consortium.

 DISCUSSION

 A court should enter summary judgment only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All reasonable inferences are drawn in a light most favorable to the non-movant. Mays v. Chicago Sun-Times, 865 F.2d 134, 136 (7th Cir. 1989). Defendants have filed separate motions for summary judgment, which the court will now consider.

 I. Fibreboard Corporation, Owens-Illinois, Inc., and Pittsburgh Corning Corporation

 Defendants Fibreboard Corporation ("Fibreboard"), Owens-Illinois, Inc. ("Owens-Illinois"), and Pittsburgh Corning Corporation ("Pittsburgh Corning") argue that they are entitled to summary judgment for three reasons: plaintiffs' claims are barred by the statute of limitations; plaintiffs' strict liability claim is barred by the statute of repose; and John Schultz was not exposed to any asbestos products manufactured by these defendants.

 A. Statute of Limitations

 Under Illinois law -- the substantive law which governs this diversity case -- an action for personal injury must be commenced within two years after the cause of action accrued. Ill.Rev.Stat. ch. 110, para. 13-202 (1987). A cause of action accrues "when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused." Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 171, 421 N.E.2d 864, 868, 52 Ill. Dec. 1 (1981).

 The statute of limitations must be carefully scrutinized in asbestosis cases. In contrast to many personal injuries which result from a sudden traumatic event occurring at a fixed point in time, asbestosis develops slowly and insidiously. Nolan v. Johns-Manville Asbestos & Magnesia Materials Co., 74 Ill.App.3d 778, 788, 392 N.E.2d 1352, 1360, 30 Ill. Dec. 307 (1st Dist. 1979), aff'd, 85 Ill.2d 161, 421 N.E.2d 864, 52 Ill. Dec. 1 (1981). Asbestosis progresses subtly over a long period of time, taking anywhere from 10 to 25 years after initial exposure before the disease manifests itself. Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480, 1486 (11th Cir. 1985). Therefore, a mechanical application of the statute of limitations in such cases would produce draconian results. As Illinois Appellate Court Justice Hartman cogently remarked in Nolan :

 
Requiring the filing of a lawsuit before the potentially serious consequences of exposure to a dangerous and defective product can possibly be known or become known for a period perhaps of from ten to twenty-five years, could destroy a just and meaningful claim for injuries simply for want of knowledge or ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.