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Gail Garner and the Estate of Angelo Palermo v. Dii Industries

February 14, 2011


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



Siragusa, J. This diversity asbestos litigation case is before the Court on Defendants' motions (Docket Nos. 3 & 11) to dismiss and Plaintiffs' cross-motion (Docket No. 11) to amend the complaint. For the reasons below, Defendants' applications are granted and Plaintiffs' are denied.


Plaintiff filed her original complaint in this Court pro se in civil action No. 08-CV-6191 on April 25, 2008, alleging that Defendants were liable to her father's estate for his death caused by exposure to asbestos. On November 14, 2008, the Court, interpreting Plaintiff's response to Defendants' first motion to dismiss as a request to proceed pro se as the representative of her father's estate, denied the request. Plaintiff subsequently hired counsel, and on March 27, 2009, filed an amended complaint. On April 17, 2009, Defendants again moved to dismiss, primarily on the ground that Plaintiff's claim against them was barred by the statute of limitations.*fn1 The Court entered a Decision and Order dismissing the 2008 civil action for lack of jurisdiction. Garner v. DII Indus., LLC, No. 08-CV-6191, 2010 U.S. Dist. LEXIS 9583 (W.D.N.Y. Feb. 4, 2010).

Plaintiffs commenced the present action in New York State Supreme Court (Index No. 10-4342), Monroe County, on April 5, 2010. Defendants removed the action to this Court on June 28, 2010, and moved to dismiss the original complaint on July 2, 2010.

Plaintiffs filed what they captioned as a First Amended Complaint*fn2 on July 22, 2010, and Defendants filed a motion to dismiss the First Amended Complaint on August 4, 2010. Plaintiffs filed a motion to amend their First Amended Complaint on September 24, 2010.

Viewing the allegations in the First Amended Complaint as true, the following are the relevant facts for consideration of the present motion. The decedent, Angelo Palermo ("Palermo"), was a union insulation mason for twenty-nine years from 1937 through 1966 in the construction asbestos industry. He spray coated and handled asbestos-containing products while working for one or more of the Haliburton or Harbison-Walker entities or their predecessors at work sites in New York State. Palermo died on April 23, 1966, at the age of 51 years. His death certificate listed the immediate cause of death as acute liver failure due to "metastasis cancer due to primary stomach (place of origin)." (First Am. Compl. ¶ 20.) The doctor who signed the death certificate was a resident who, two and a half years later, became a plastic surgeon. Palermo's co-worker and friend, who is not named in the amended complaint, was diagnosed with mesothelioma, but does not state the date of the friend's diagnosis. (First Am. Compl. ¶ 23.)

In February 2000, Gail Garner ("Garner"), Palermo's daughter, filed a claim with the Manville Personal Injury Settlement Trust ("Manville Trust"). She requested*fn3 that Dr. William Beckett, a local occupational doctor, who specialized in pulmonary and toxic substance disease, evaluate Palermo's medical and work history and pictures of his digital clubbing. According to the First Amended Complaint, Dr. Beckett determined:

Peritoneal mesothelioma is a difficult diagnosis to distinguish from carcinoma metastatic to the abdominal cavity or primary to the stomach, and it seems quite possible that the patient's fatal malignancy could have been a diffuse malignant mesothelioma of the peritoneum rather than a primary from the stomach.... [P]atients with malignant mesothelioma can develop digital clubbing. (Id. ¶ 26.) The Manville Trust did not accept Dr. Becketts' opinion as a diagnosis.

On February 14, 2002, Harbison-Walker, which had been acquired by DII Industries, LLC, in 1967, then spun off in July 1992, filed for bankruptcy. The Bankruptcy Court issued a temporary restraining order staying asbestos claims.*fn4

On June 6, 2003, Plaintiffs allege that, "a tribunal of asbestos experts of the Extraordinary Claims Panel of the Manville Trust diagnosed Angelo Palermo posthumously, with mesothelioma. (First Am. Compl. ¶ 29.) On October 27, 2003, David Austern, president of the Manville Trust, confirmed the tribunal's determination*fn5 that Palermo's claim was a mesothelioma extraordinary claim and issued financial restitution. Four months after the Manville "diagnosis," Plaintiffs filed additional asbestos claims. (Id. ¶ 31.) Plaintiffs assert that,

Four Trusts, including Manville, Celotex, Eagle-Picher and H.K. Porter (Trustee Mark Gleason is also the Trustee of H.K. Porter Trust), confirmed Palermo's death an asbestos related "mesothelioma" using the same medical evidence and trust standards as the 011 Trust. On December 16, 2003, Halliburton filed their petitions as a prepackaged bankruptcy plan for Dresser Industries and other subsidiaries. (Id. ¶ 32.)

On April 4, 2006, Plaintiffs filed a pro se asbestos personal injury liability claim with DII Industries, LLC PI Trust. Plaintiffs allege that Defendants, "denied the claim for compensation due to (1) insufficient medical diagnosis; (2) Statute of Limitation, 3 year requirement under New York's Statute for filing of a lawsuit upon diagnosis of an asbestos-related disease; (3) the requirements [sic], and the claim will not be reviewed as an Extraordinary Claim." (Id. ΒΆ 38.) ...

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