The opinion of the court was delivered by: Sweet, District Judge.
Defendants Owens-Corning Fiberglass Corporation ("OCF") and
United States Mineral Products Company ("USMP") in this
asbestos litigation move for partial summary judgment
dismissing the wrongful death claims of plaintiff Arlene
Maiorana ("Maiorana") as time-barred. For the following
reasons, the motion is granted.
Maiorana is the widow of John Maiorana, a sheetmetal worker
who died of colon cancer on June 16, 1983. She asserts that
her husband's cancer was caused by his exposure to asbestos
and asbestos-containing products during his construction
The defendants are manufacturers of various
asbestos-containing products to which Mr. Maiorana is alleged
to have been exposed.
This case was originally filed on July 28, 1987 as part of
a case brought by sixteen plaintiffs on behalf of themselves
and their deceased spouses, Meilinger v. National Gypsum Co.,
No. 87 Civ. 5188 (S.D.N.Y. filed July 28, 1987). In that
complaint, each plaintiff alleged a claim for wrongful death
and survival benefits and a claim for loss of services and
consortium, and sought punitive damages against the defendants.
In May 1988, Maiorana's claims were separated from those of the
other widows and filed as an independent case, Maiorana v.
National Gypsum Co., 88 Civ. 3317 (S.D.N.Y. filed May 11,
1988). In October 1990, the case was transferred to this Court
for expedited trial.
This case involves application of § 4 of the New York Toxic
Tort Reform Act of 1986, Ch. 682, L. 1986, § 4, reprinted in 1
McKinney's Session Laws of New York 1567 (West 1986) ("the
Revival Statute"). For a detailed discussion of this statute
see Monte v. National Gypsum Co., 921 F.2d 405, 406-08 (2d Cir.
Prior to 1986, New York law provided that a cause of action
for exposure to toxic
substances accrued at the date of last exposure to the toxic
substance. The applicable statute of limitations was three
years from that date. Monte, at 407; In re Joint Eastern and
Southern Districts Asbestos Litigation, relating to Anderson v.
Armstrong World Indus., Inc., No. 87 Civ. 4567 (S.D.N.Y. Dec.
18, 1988) and Oefelein v. Armstrong World Indus., Inc., No. 87
Civ. 4279 (Dec. 18, 1988); Steinhardt v. Johns-Manville Corp.,
54 N.Y.2d 1008, 1010-11, 446 N.Y.S.2d 244, 246,
430 N.E.2d 1297, 1299 (1981), cert. denied sub nom. Rosenberg v.
Johns-Manville Sales Corp., 456 U.S. 967, 102 S.Ct. 2226, 72
L.Ed.2d 840 (1982). If the exposed victim died prior to the end
of the limitations period, the Estates, Powers and Trusts Law
("EPTL") granted survivors two years in which to bring a
wrongful death action. N.Y.Est. Powers & Trusts Law § 5-4.1.
A significant problem with this was that toxic exposure
victims might be unaware of either the fact of their exposure
or the toxic nature of the substances to which they had been
exposed, and such exposure might not manifest itself as a
disease until long after the date of exposure. Thus many
victims were prevented from collecting for their injuries
because they did not even know that they had been injured
prior to the end of the limitations period.
The Revival Statute addressed this problem by reviving
claims which had been barred because of a lack of timely
awareness of the injury. Specifically, the statute provided a
one-year period in which plaintiffs could bring claims for
exposure to toxic substances which were previously
time-barred. Monte, at 406. The revival was expressly limited,
however, to exclude "any action for damages for a wrongful act,
neglect or default which was not barred as of the date of the
decedent's death and could have been brought pursuant to [EPTL]
Section 5-4.1. . . ."
Shortly after Maiorana filed her individual complaint, the
defendants, through interrogatories, requested Mr. Maiorana's
detailed work history, including dates and locations of
employment and types of exposure to any toxic materials. On
July 16, 1988, Maiorana, through her attorney, responded to
these interrogatories, stating that her husband had been
employed in 1981 as a sheetmetal worker by Triangle Sheet
Metal ("Triangle") and from 1981 to 1983 by DNS Metal, Inc.
("DNS"). While there was no further detail regarding Mr.
Maiorana's work at Triangle, the answers stated that he had
worked at DNS on the installation and fabrication of heating,
ventilating and air conditioning systems. Maiorana claimed
that while at both Triangle and DNS her husband had worked
with "[m]etal, sound attenuation products and ...