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IN RE JOINT E. & S. DIST. ASBESTOS

February 1, 1991

IN RE JOINT EASTERN AND SOUTHERN DISTRICT ASBESTOS LITIGATION. THIS DOCUMENT RELATES TO JOHN MAIORANA.


The opinion of the court was delivered by: Sweet, District Judge.

OPINION

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.

The Parties

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 career.

The defendants are manufacturers of various asbestos-containing products to which Mr. Maiorana is alleged to have been exposed.

Prior Proceedings

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.

Statutory Framework

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. 1990).

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. . . ."

The Facts

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 ...


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