Document QX3yZXXReYkOZ1ZYn3eE4waK4

D Y K E M A , G O S S E T T . S P E N C E R . G O O O N O W Br T R IG G 3 5 T H F L O O R 4 0 0 R E N A IS S A N C E C E N T E R D E T R O IT . M IC H IG A N 4 8 2 4 3 : STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF MACOMB KENNETH GRIMM, Personal Representative of the ESTATE OF HELEN GRIMM, Deceased, Plaintiff -vs- FORD MOTOR COMPANY, et al. Defendants. / Case No. 83-2872-NO Hon Raymond R. Cashen AFFIDAVIT STATE OF MICHIGAN COUNTY OF WAYNE SS Dennis M. Haffey, being first duly sworn, states that the medical records attached as exhibits to Brief In Support of Defendants' Motion for Summary Judgment are true and accurate copies of certified records produced by hospitals and physicians pursuant to subpoenas from Record Copy Services; and the facts stated in that Brief are true to the best of his knowledge. information and belief. URL 09828 Subscribed and sworn to before me this 5th day of February, 1985 / DENJSI M. MacDCUGALL ' Notary Public. Wayne County Ml My Commission Expires flet ^ 5037 1I -'7T- "7' J-.-: *.' r- * *- -- J l' K.. - ^ V" t |--- - l * -* ' f .-' 5 '; J. s \ -*.'3 .'-& -i*' fk-- ST. JOSEPH HOSPITAL wxarrt caniocEUi OPERATIVE RECORD beleo Grij Kum. PiXpeiivt d?fi:wic. Cystic aastltis _________D__r_. __M__u__ll_igIa__n AssV Hun*_________________________ _Acc*thcts*r_ ,lstcra_ Amotbetie Tins* opeatias stam4_ Operative Dia^osis, Ith ae evidence of axillarv edenarst'nv, Optnt Drains (bad sad amber) Setaab of epo-stioB sad bap_ Ubder geoeral anesthesia u incision *u made la the lateral aspect of tbe breast, A 'vst done vltb aoderate section of tbe areola left 1b place. The pstleet bad s severe type of cancer phobia sad the Mitectaay vu performed in this fashleo for this condition.The tall van * veil and all breast tissue vas carefully dissected free / .>?it P?V>: ?-.cv EXHIBIT 1 - p. 1 Ji EXHIBIT 2 1JRL 09831 r ii ti Tho Cottogo I at Croat* HI fit* H* Ottm him V. HoopIfoI H. am /r R.M. l^rm, M. JHC roUMlNO IttMS MUST K INCLUOCDt A. .H.r.p._o_oo of Adolttoneo 11toto ration why t^ittod). Nodingo tltoto opoclflealty ohat found), C. Troataont (Stfto opoolflotily Ht T*'*"*'* 0* Htlont'i Hoponto tttata opoelflctlly hoo patloftt raonondM). K bniltlM r" Pllch<fy ad F Hturo Coro Proaortood (Stott ohattiar patIant till h* tallaoad it too or In otfleo). AOoittodi. Diachartodt 1*10-7? Thi potUot la 50 yoot old fonolt oho hoo o looloe to thi laft hrooat too MftmlMtily flvt BMtbi. Thia luloa haa itwa and la hard aai than ll ot laaat ni paipahla oolllory lyoph ooda. A hiopoy of tha looloo proton It to ho oolltoaot and tho patloot uadorwant loft radteol aootaetooy with 1U1 hot pootoporotlwo eooroo oaa cooplleatod hy oom ooooldarahlt oaatnl daprtaaia* aod alao hy o aodoroto mad iofoctloa io tho uppor portion of tho wauad. Tho potholopie roport ootoo that all of tho oootloood lyaph oodoo raoaol owidaooo of ootaototlc diooaoo. Tho hooo oad llwor oeooo art oonai oo volt ao tho shoot o*roy. At tho tlao or dloohori* tho wound to haollnt oatiofoctorily and ooao of tha outuroo aro out. Tho pattoot will ho folloood aa ao out potioot to tho offlao. tho haa Had eooaultattoo with tho ooeolofiot and docloioo aa to poooihio prophy loottehoaothoropy or Cohalt thoropy haa not hoo nada at thlo tlao. tho will ho foilawad oo an out po'tlont. Float Dlacnoalot Coroloooot loft hroaat with aollLary aotootooio. loooodary Dlapnoalai Wound lofootloo. Oporotloot X) RMAtop tin im* mt -- - EXHIBIT 3 - p. 1 ) ***** THE COTTAGE HOSPITAL OF GROSSE POINTE Patient's Noma_______ Com No. Ml*TM Source of Specimen History ODBC, Joon PATHOLOGIC REPORT soAge .Sex- r 7Q.22Poth. No Physician. 01. AMBROSE 1. Loft brtut biopsy with frozen section 2* Loft breast Pro operative Diagnosis Post-operative Diagnosis Loft brooot nooo CROSS: Port 1. A portion of brooot tissue measuring 4.0 x 3.0 x 1.5 es. Ob section it presents on irregular greyish fin resilient erne, as asoring approxlssuly 1.5 ca. in BSTfuB dimension. ( ) PC:clg R0ZZS SECTIOH DIAGNOSIS* ADENOCARCINOMA, ZRFXLTRATHiC DOCtAL CSU. TOT, PCiclg Part 2. The specimen consists of o left brooot end pectoral ancles. There Is o recent sutured, but unhealed, upper outer quadrant Incision, approximately $ cm. is length, vhleh is in contact vith a ness of fire, ubite, crisp cutting toot, 3 z 3.5 ea. from uhich a biopsy baa been removed. Tha skin la tbe aras of iaeiaion la slightly thicVsnad and eonelderably thickened below tha alppla. Thera ia mo gross iovolvoMot of tha nipple, teetiona of asclo shoes uhitish areas, probably of fibrosis. Tbs lynph nodes ere ^ to 2 cm. ia diameter, appear to extend beyond their cepeulee into Che surrounding fat. Several ere netted together* (Thera ere nineteen nodee proximal to the peetorslis minor, labelled as P. Most of these grossly feel end appear involved vlth tumor, there ere too nodes beneath tbe peetorells minor labelled M, both of uhich appear to be involved. There ere three modes distal to tha pectoralls minor labelled D, one of uhich appears grossly involved.) A cube of tissue ia taken for the ERA studies. JDL:elg URL 09833 BAS 4 PHYSICIAN'S COPY Pn CH-*4L-Jtvv. MS EXHIBIT 3 - p. 2. *0 TV e/s' Saratoga en*rat JCospita! CLINICAL RESUME 'I . ftiTilclsn GRIMM. -HeJ &_a_ #278621 OR- F- rnmn URL 09834 Ifc* cUalcal rM* Awild reuficuUtc c*cs*ly: 1. Sac* of telcston 2. tat* ( 41ich(i 01 spinelo* 3. ftaal lUpnili Saeludc *11 yrlui; and iicmdiry 4U(mim A. Iu*m for hMplcailMClen S. liplXlCMt 4. hcccAiftl yarfecMd 2. Cnn* and Cmtani la ke*p!tal 0. Cmavltattoos 9* Cs^UcKlaii 10. Coodltloo of fitinl on discharge 11. tirtiMnt lutroctlonc floes to the pattest and/or fanlly . wdiccelett b. diet c. physical activity d. fell wvp esr ADMITTED: DISCHARGED: 3-23-80 3-29-80 HISTORY: This 53-year old white female had a left radical mastectomy performed for carcinoma of the breast on 2-4-77. Metastasis to the axillary nodes was present at that time. She received adjuvant chemotherapy from March of 1977 until August of 1977 and she remained well until December of 1977, when she developed metastatic nodules of the chest wall. A course of radiation therapy was administered, with control of her metastatic lesions being noted. In April of 1978, Mrs. Grimm developed a metastatic nodule in the opposite breast which required a right simple mastectomy. Chemotherapy was initiated in July of 1978 because of recurrence of metastatic lesions of the chest wall, which brought about a partial remission which lasted for approximately sixteen months. During the last four weeks prior to the present admission, there had been rapid narked progression of her malignancy, with enlargement of the metastatic nodules and the developmentof multiple ulcerative lesions having been noted. The disease had been limited to the chest wall and there was no clinical or radiological evidence of distant metastasis. The patient was admitted to Saratoga General Hospital on 3-23-80 for re-evaluation and a possible change in her chemotherapy. PHYSICAL EXAMINATION: The physical examination on admission revealed a middle-aged white female in a surprisingly satisfactory general condition. Multiple large ulcerative lesions were present on the chest wall. There was no peripheral lymphadenopathy or organomegaly noted and the chest was clear to percussion and auscultation. LABORATORY AND RADIOLOGICAL EVALUATIONS: The SMA-1Z was within normal limits, except for slightly reduced total protein and serum albumin levels being noted. Hemoglobin was 8.7 grams per cent and the white blood cell count was 3,500. The platelets were adequate. HOSPITAL COURSE: An attempt was made to transfuse packed cells, but this was unsuccessful because of the lack of peripheral veins. Chemotherapy with Miton\ycin-C was administered, without any severe side effects being noted. Mrs. Grimm was discharged from the hospital on 3-29-80 and her condition was to be re-evaluated in three weeks. 2708 MTS: pib DO: 4-10-80 DT: 4-18-80 T7 COELLO, M.D. EXHIBIT 4 as PLEASE TYPEWRITE OR PRINT - EXCEPT SIGNATURES - ALL COPIES MUST BE LEGIBLE USE ONLY BLACK INK IF CF 0183884 B J J STATE OF MICHIGAN DEPARTMENT OF PUBLIC HEALTH CERTIFICATE OF DEATH state file number C0N* UHWNI, mMCMii UTOa*( /'OECEOENT name MT WOU SEX OATt Of OEaTh Onto. Dot. Yr., HELEN V. GRIMM Female 3Aug. 16,1980 NRCE'W* **-- M-A JLmmm ..ACf il> lfW(M UNDER i vtar UNDER 1 Pay DATE OF tlRTH (Uo . 0r. Yr l SB_____ i __ ,,T" ! ______ L May 22, 1926 COUNTY OF OEaTh VWayne location OF DEATH Tfv' mw an mis or Gross's "Point (Cnoek ono W&tfi mm nuu VMtis or |HOSPITAL on OTHER INSTITUTION-MM. ,.. [Cottage Hospital fn*f 4***m 4*4 RWPM<i 11*11 01 Min II n rw* or OTOtNOFNMAtCOUNtRTT^VV^*^^ T*SURVIVING SPOUSE gn maiaon notnot . Virginia" j^USA__ . j,parried |,, Kenneth Grimm w.E mciivml lv|. M y V ahum- >0C((l SOCIaV SECUHi TY~NUMSi R 0227-24-.6713 USUAL OCCUPATION (Groo *>/>0 of OrOtX >iv>H Oo">ry "NWS of .. *i'/>"iy '*/. # it tot'ioCI ,4. Homemaker KIND Uf euSvNfS* OA INDUSTRY hie At Home CLHMN1 **NQ-*TAU COUNTY ^Michigan ,4Ja comb LOCALITY I uiw Ol UMlt* Ol tCfiOt* On* _ *TM iffioctty) MW YIUAUI IMIS 0* lit V Chesterfield STREET AND NUMBER 50877 Fairchild t64 Road FATHER-NAME M woeu. LAhT mother- maioen name fuel MOSU L1 >a Willard Raneey Dora (No Record) INFORMANT MAILING ADDRESS mn OR o M> on on 10** . AiMiwfi *- Mr .Kenneth Grimm 50877 Fairchild RdrMt. Clemens, MI 48045 1 3H YEARS __ /i7iy ^/TVas'case remrRfRED TO MEOiC w to fy VJ or No i ** i-m <w u h ' > =a C^gfT |I DATE SIGNED yMa. 0*r. Ml HOUR OF OUTH 8{r*/&* Me t P NAME OF ATTENDING PHYSlOAN IF OTHER THAN CERTlfiER Hypo or firm!/ 4 2 DATE SIGNED (Mo. Ooy. Yr.) o2 fJ . . . ______ . M PRONOUNCED OEAO itoo , 0*T- Yt.( 33d . NAME AND ADDRESS Of CERTiflER iMitNOa* OR MtOMU* (AAMWtni (Typo O' **>1) too ON HOUR OF DEATH IN PRONOUNCED DEAD (Hooi 74. AT XI CO VH B-3BO 2* '4anaQ UR RHKIll* MM61 <S*m.Otl II*__________ *1NJUR AT WORK 21c Place of (mjukt- * mm <-- mm w* 2* LOCATION |TMI7 OR a0 OTY. VALAM 0R IWNM *Ti /Spaedy Til or NW IN 2*1 mi., mt tSfiOcity) ___ _ IN (SfitcOylburial, cremation, removal, other 27. burial CEMETERY OR CREMATORY-NAME 270 Cadillac Memorial LOCATION Gardena^ast an. niMi oa iiiwMni* Mt. Clemens, Mid OATI (Mo.. Dor. Yrl name of facility | address of facility ^ '4804y JUig. 19^1980_JUrold W. Vick Funeral Home-14.CS .Gratiot-Mt.Clemens,MI " FUNERAl^SERVicE lTcENSEE \S^wTldJuA __ REGISTRAR- _____________________________ DAirRECE"ivEO "" REGISTRAR (Mo Yr, 2*b Michigan Public Act 343 ol 1925. as emended, requires that the attending physician, or in the abtence of an attending phyt a medical examiner ahaU fW out end aign the medical certificate of death within 48 hours after death. The funeral director prior to disposing of the EXHIBIT 5 - p. 1 ortiona of the certificate and obtaining a burial or removal p district where the death occurred. it J- fl * . y URL 09836 Jr JOHNH BURROWS. M O . F.A.C.P. fcUOOROCOELLO. M. D . F.R.C.R. |Q * t-HAlN R. CASAS. M. D. fcuGENEJ AGNONE. JR . M. D. GROSSE POINTE ONCOLOGY ASSOCIATES* P. C. INTERNAL MEDICINE - MEDICAL ONCOLOGY 23501 E. JEFFERSON ST. CLAIR SHORES, Ml 48060 778-9630 September 29, 1980 Mr. Timothy M. Casey Vice President Independent Liberty Life Insurance Co. Home Office Grand Rapids, Michigan 49503 Re: Helen V. Grimm, (Deceased) Dear Mr. Casey: Mrs. Helen Grltm had a left radical mastectomy in February 4, 1977, * for carcinoma of the breast with metastases to axillary nodes. She developed chest wall metastases in December of 1977, and had a right simple mastectomy in April 28, 1978, for carcinoma of the breast. Mrs. Grimm was extensively treated with radiation therapy and chemo therapy, and became totally disabled in January of 1979. She ex pired at Cottage Hosptital on August 16, 1980. Sincerely yours. EC/dmw Eudoro 't L F.R.C.P.(C) URL 09837 EXHIBIT 5 - p.3 oy+ STATE COURT OF OF MICHIGAN APPEALS URL 09838 ELIZABETH A. LARSON, Personal Representative of the Estate of LAWRENCE E. LARSON, Deceased, -vs- Plaintiff-Appellant, No. 64286 JOHNS MANVILLE SALES CORPORATION, PITTSBURG CORNING, EAGLE PICHER, KEENE BUILDING PRODUCTS CORPORATION, GALE CORPORATION, FIBREBOARD, CELOTEX, and CAREY CANADIAN MINES, LTD., Defendants-Appellees. LUCILLE 8. REVARD, Administratrix of the Estate of LEEMAN GEORGE KEVARD, Deceased, Plaintiff-Appellant, -vs- No. 64287 JOHNS MANVILLE SALES CORPORATION, OWENS CORNING, PITTSBURG CORNING, EAGLE PICHER, KEENE BUILDING PRODUCTS CORPORATION, FIBREBOARD, CLEOTEX, and CAREY CANADIAN MINES, LTD., Defendants-Appellees TERRY L. BRIMMER, Executor of the Estate of LAWRENCE BRIMMER, Deceased, Plaintiff-Appellant, -vs- No. 64649 JOHNS MANVILLE SALES CORPORATION, OWENS CORNING, PITTSBURG CORNING, EAGLE PICHER, KEENE BUILDING PRODUCTS CORPORATION, FIESR30ARD, CLEOTEX, and CAREY CANADIAN MINES, LTD., Defendantj-Appellees. HAZEL E. GLAZIER, Ex,rutrix of the Estate of GEORGE GLAZIER, Deceased, Plair tiff-Appellant, -vs- No. 67510 FIBREBOARD CORPORATION, Defendant-Appellee, and OWENS CORNING, PITTSBURG CORNING, EAGLE PICHER, KEENE CORPORATION, KEENE BUILDING PRODUCTS, GALE CORPORATION, CELOTEX, and CAREY CANADIAN MINES, LTD, , Defendants. J BEFORE: Beasley, P.J.? R.S. Gribbs and J.R. Ernst,* JJ. BEASLEY, J. These four asbestos-related products liability cases were consolidated for hearing in the trial court and on appeal. Plaintiffs each appeal from similar orders 2SHEl/ n the ground that plaintiffs1 actions were barred by expiration of the statute of limita tions. These four product liability actions are identical in most significant respects. Each case is a wrongful death action brought by the personal representative of the estate on behalf of the statutory beneficiaries due to the death of the decedent from an asbestos-related disease or diseases. The decedent in each case was an insulation worker, exposed to asbestos either by directly handling asbestos-containing insulation products manufactured by the various defendants, or by proximity to these products while they were being handled and used by fellow workers. Glazier's complaint contends he was exposed while employed as an insulator during the years 1937-1972? Revard during 1948-1970? Larson from 1945-1972, and Brimmer from 1951-1969. Each of the four cases alleged that the URL 09839 asbestosis, which either caused the decedents' death or was a contributing cause of his death. Asbestosis is a non-carcinogenic disease process caused by inhalation of asbestos fibers, and is characterized by a long latency period between exposure and apparent effect. Asbestosis is dictionary defined^ as a fiberous induration of the lungs due to the irritation caused by inhalation of asbestos dust. The Larson and Brimmer cases assert that death was solely a consequence of asbestosis and complications thereof. The Glazier and Revard cases differ, in that the cause of death was alleged to be a result of asbestosis and/or an independent asbestosis-related disease, namely, mesothe lioma in the case of Glazier, and metastatic carcinoma of the lung in the case of Revard. Malignant mesothelioma is a cancer of the mesothelial cells lining the pleural and peritoneal membranes which envelop the lungs and the abdominal cavity. Unlike asbestosis, which may or may not be disabling or ultimately fatal, malignant mesothelioma is an invariably fatal tumor which also has a long latency period between initial exposure to asbestos and eventual manifestation of the disease. Regardless of the diseases involved, the four wrongful death complaints contain identical liability allega tions, as well as claims for relief. The plaintiffs file liability claims based on negligence, breach of warranty, strict liability and gross negligence. The damages in each case were sought for the physical and mental pain and suffering suffered by the decedent, as well as damages for loss of earning capacity and medical, funeral and burial expenses incurred by the estate. Damages were also sought for the loss of consortium suffered by the widows and the sons and daughters of the decedents. In each case, jury trial was demanded. In all four cases, defendants denied material allegations made in the complaints and raised various affirm ative defenses. In all four cases, each defendant alleged that the statute of limitations constituted a complete bar to the wrongful death actions. All parties engaged in consider able discovery in these four cases, after which motions for summary judgment were filed, alleging that each of the four cases was barred by expiration of the statute of limitations. URL 09840 -3- URL 09841 Throughout the oral argument and re-argument in all pro ceedings, plaintiffs stipulated that papers and memoranda submitted on behalf of one defendant, including arguments, could be considered to have been submitted on behalf of all defendants. The crucial facts upon which summary judgment was awarded are not in dispute. Defendants in all four cases Since no personal injury action was filed based on asbestosis prior to the death of each decedent, all defendants argued that subsequent wrongful death actions were time barred regardless of whether or not they were filed on the basis of death due to asbestosis or due to a separate and distinct asbestos-related disease, namely, mesothelioma in the Glazier case, and metastatic carcinoma of the lung in the Revard case. actions for asbestosis were time barred in all four cases prior to the death of the decedents. However, in all four cases, plaintiffs argued that the barring of the personal injury actions for asbestosis did not bar wrongful death actions brought on behalf of statutory beneficiaries which sought damages under the wrongful death act for deaths due to asbestosis or separate and distinct asbestos-related diseases. The following are the relevant dates concerning the four cases: Larson was diagnosed to have asbestosis no later than September 7, 1972. Assuming that Larson's personal injury action accrued no later than September 7, 1972, his personal injury action for asbestosis was time barred due to the statute of limitations no later than September 7, 1975. -4- URL 09842 Larson died August 26, 1977. The personal representative of Larson's estate filed a wrongful death complaint on January 10, 1980, some two and one-half years after Larson's death. Brimmer knew that he had asbestosis no later than July 26, 1967, when he filed a worker's compensation claim to recover for its disabling impact. Assuming that Brimmer's personal injury action for asbestosis accrued at that time, his cause of action for asbestosis was time barred on July 26, 1970. Brimmer died on April 14 , 1978, and the complaint under the wrongful death act was filed January 10, 1980. Revard knew that he had asbestosis no later than February 10, 1971. Assuming that Revard's personal injury action for asbestosis accrued at that time, his action for asbestosis was time barred on February 10, 1974. Revard was diagnosed as having bronchogenic cancer in approximately January, 1977. Revard died on July 6, 1977, and a wrongful death action based on his death due to asbestosis and meta static carcinoma of the lung was filed on October 31, 1979. Glazier discovered he had asbestosis no later than March 28, 1973, when he filed a worker's compensation claim. Glazier was awarded worker compensation benefits for asbestosis in May, 1974. Assuming that Glazier's cause of action for asbestosis accrued on March 28, 1973, his personal injury action was time barred on March 28, 1976. Glazier died on November 1, 1977. The personal representative of Glazier's estate suggests that the mesothelioma was discovered approxi mately ten days before his death. The wrongful death action due to his death from asbestosis and malignant pleural mesothelioma was filed on October 31, 1979. In the four cases. summary judgment was entered on the basis that a wrongful death action depended upon whether or not the decedent at the time of his death still could lawfully maintain a lifetime personal injury action for the underlying wrongful act or conduct upon which the wrongful -5- death action would be based. The trial court held that the wrongful death action was not a new cause of action, but rather, was a substitution for whatever viable personal injury action still existed at the time of the decedents' death* The trial court entered summary judgment in all four cases on the basis that the personal injury actions for asbestosis had not been initiated prior to death and were time barred at the time of death. The trial court considered separate and distinct diseases, namely, lung cancer in Revard and mesothelioma in Glazier, as further complications of asbestos exposure and not of the disease asbestosis. Nevertheless, rfK-.Vnii^A inrm ' ilfYi 1 i " '(-- ............. ' _____________.-r-- r-___________________%-*X*VT:X-Xer ? URL 09843 On appeal, two issues are argued. First, appellants claim that the wrongful death act gives the personal representative of an estate a cause of action for damages grounded in products liability for causing the death of her husband where, at the time of his death, his cause of action for the same asbestos-related products liability action would have been barred by the applicable statute of limita tions. In resolving this issue, we look first to the Michigan Wrongful Death Act,^ whose pertinent provisions for our purpose are: "(1) Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to main tain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. -6- t*860 ian All actions for such death, or injuries resulting in death, shall be brought only under this section," The wrongful death statute does not contain a statute of limitations. but MCL 600.5805? MSA 27A.5805, as amended by Public Acts of 1978, No. 495, S 1, reads as follows: "(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is com menced within the periods of time prescribed by this section. *** "(8) The period of limitations is 3 years after the time of the death or injury for all other actions to re cover damages for the death of a person, or for injury to a person or property. * * "(9) The period of limitations is 3 years for a products liability action. However, in the case of a product which has been in use for not less than 10 years, the plain tiff, in proving a prima facie case, shall be required to do so without benefit of any presumption." MCL 600.5827? MSA 27A.5827 provides when the period of limitations begins to run as follows: "Except as otherwise expresly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results." None of the parties dispute that the decedents had a personal injury cause of action during their lifetime against these defendants, iTHWi In each case, this diagnosis occurred more than three years prior to the death of the decedents. No legal actions were ever filed during the life time of the decedents seeking damages from these defendants for asbestosis. Plaintiffs concede that personal injury actions for asbestosis were time barred during the lifetimes of the decedents. Yet, plaintiffs argue that the barring of a personal injury action for asbestosis does not bar a wrongful death action brought on behalf of statutory beneficiaries under the wrongful death act grounded upon asbestosis. TTVjr* ari"Tndypen,l3ea^^i;&drid'LW^ftetlU^mL!liv>uaroiTlT w,urue'"at th -- , wrr * ^ ft -rfcfr f injured j|>ers6TT,"S'dwatftSince every plaintiff in these four r -7- URL 09845 cases filed a complaint within three years within the date of their respective decedents* death, the plaintiffs argue that their actions were not time barred. Recognizing that in Michigan wrongful death acts and survival acts have had checkered histories, we will not burden this opinion with detailed recitals and many references to cases dealing with these issues. Rather, we proceed directly to Hawkins v Regional Medical Laboratories, PC,3 which we believe controls decision here. In Hawkins, the Supreme Court said: "Mr. Hawkins had a fully vested cause of action, if at all, on or about April 29, 1975, the date of the alleged wrongful act. He lived until January of 1976. His cause of action, if any, having accrued at the date of the wrongful act, the applicable limitations period began to run from that date. * * "We agree and expressly hold that in all actions brought under the wrongful death statute, the limitations period will be governed by the provision applicable to the liability theory of the underlying wrongful act. * * * "Additionally, we hold that actions brought pur suant to MCL 600.2922; MSA 27A.2922 accrue as provided by the statutory provisions governing the underlying liability theory and not at the date of death. Applying Hawkins, we look to the wrongful act causing death, or injuries resulting in death, but not on the death itself. Under the statute, the liability of the tort feasor exists where the deceased could have recovered if death had not ensued. Therefore, the cause of action accrues on the date of the wrongful act and the applicable limitations period begins to run from that date. The appropriate statute of limi tations period is governed by the provision applicable to the liability theory of the underlying wrongful act. Since a decedent's death does not create a new cause of action and any right of action for asbestosis against these defendants arose presumably when the decedents knew or should have known of their disease, we believe that the run ning of the statute of limitations against the injured per son's right of action bars the statutory right of his personal representative to sue for the injured person's wrongful death. > In the instant, case, as we have stated, the plaintiffs allege a wrongful death cause of action sounding in -8- URL 09846 / the authorities referred to above, we conclude that the trial court was correct in awarding summary judgment in the four cases on these claims. action Second, plaintiffs based on the decedents' claim that a wrongful deaths from as death *v ch was diagnosed less than six months prior to the decedents* death, may be brought even though no wrongful death action could have been filed if the decedent had died from asbestosis. As previously indicated, the statute of limita- tions for products liability cases provides that a civil cause of action for damages for personal injuries must be filed within three years of the date it accrues or the cause of action is time barred.^ / / Previously, this court has held that the so- called "discovery rule" was not applicable in wrongful death cases based in products liability.^ But, in Stoneman v Collier,** the plaintiff's damages were immediately apparent as a result of the defective product. On the other hand, the within plaintiffs contend that because of the latent nature of the decedents* illnesses, the causes of action did not accrue until the decedents knew or reasonably should have known of their injuries. -9- period7" a uctr_a--asbestosisry ^ tKi li oma ; 'There' arS^Ssi'entTm'ir^Ktie^STin^T-^fttir-of ^ew..-, ' ----- " i ""'....... . -------- ! rVi -i ~>T i ----- -- -f With respect to when a statute of limitations begins to run in cases seeking to recover damages from the development of such a latent industrial or occupational disease. Annotation, 1 ALR 4th 117, 120-121 (1980) summarizes as follows: "(1) The 'general negligence' rule: The cause of action accrues, and the statute of limitation starts run ning at the person's initial exposure to the substance because the person has sustained an injury* and therefore all the ele ments of the cause of action are present. 'The running of the statute of limitations is not postponed by the fact that the actual or substantial damages occur until a later date.' "(2) The 'continuing negligence* rule: The statute of limitations starts running from the time of the per son's last exposure to the substance or at the time of termina tion of employment. "(3) The 'discovery' rule: The statute of limi tations for latent industrial or occupational diseases starts running from the date of discovery or diagnosis of the disease." URL 0U847 Plaintiffs argue, with some merit, that the present trend favors expansion of the period of the statute of limitations to apply the so-called discovery rule to products liability cases.10 We believe that if a change in judicial policy of this magnitude is to occur, such a policy change should come from the Supreme Court or the legislature. Obviously, there are many broad factors going both ways that will contribute toward the formulation of a wise policy. We are aware that adoption of the so-called discovery rule would lead to reversal in the Revard case, where decedent was allegedly diagnosed as suffering a metastatic carcinoma of the lung or bronchogenic cancer approximately six weeks before his death, and in the Glazier case where mesothelioma was alleg edly diagnosed approximately ten days a reasons indicated, we decline to adopt before death. For the discovery rule. the We .assume that in these cases, appeal will be taken to the -10- URL 09848 Supreme Court, a step with which we are in full accord, in the sense that it will be well to have a final word on this issue* AFFIRMED. /s/ William R. Beasley /s/ Roman S. Gribbs A See Stedman^s Medical Dictionary, 116, 990 (Third unabridged Law "Edition), 1972. 2 MCL 600.2922; MSA 27A.2922. 3 415 Mich 420; 329 NW2d 729 (1982). 4 11- at pp 436-437. 5 MCL 600.5827; MSA 27A.5827 states that: "The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results* Connelly v Paul Ruddv's Equipment Repair 6 Service Co., 388 Mich 146; 200 NW2d 70 (1972). 7 Stoneman v Collier, 94 Mich App 187; 288 NW2d 405 (1979). 8 Id. 9 MCL 600.5827; MSA 27A.5827. 10 See 91 ALR 3rd 991 (1979); 1 ALR 4th 117 (1980). -11- STATE OF MICHIGAN COURT OF APPEALS URL 09849 ELIZABETH A. LARSON, Personal Representative of the Estate of LAWRENCE E. LARSON, Deceased, Plaintiff-Appellant, -v-- JOHNS MANVILLE SALES CORPORATION, PITTSBURG CORNING, EAGLE PICKER, KEENE BUILDING PRODUCTS CORPORA TION, GALE CORPORATION, FIBREBOARD, CELOTEX, and CAREY CANADIAN MINES, LTD., Defendants-Appellees / LUCILLE E. REVARD, Administratrix of the Estate of LEEMAN GEORGE REVARD, Deceased, Plaintiff-Appellant, --v-- JOHNS MANVILLE SALES CORPORATION, OWENS CORNING, PITTSBURG CORNING, EAGLE PICHER, KEEN BUILDING PRODUCTS CORPORATION, FIBREBOARD, CELOTEX, and CAREY CANADIAN MINES, LTD., Defendants-Appellees. _____ ______________________________ TERRY L. BRIMMER, Executor of the Estate of LAWRENCE BRIMMER, Deceased, Plaintiff-Appellant, --v- JOHNS MANVILLE SALES CORPORATION, OWENS CORNING, PITTSBURG CORNING, EAGLE PICHER, KEEN BUILDING PRODUCTS CORPORATION, FIBREBOARD, CELOTEX, and CAREY CANADIAN MINES, LTD., Defendants-Appellees. _______________________________________________ / HAZEL S. GLAZIER, Executrix of the Estate of GEORGE GLAZIER, Deceased, Plaintiff-Appellant, -v No* 64286 No. 64287 No. 64649 No. 67510 -1- FIBREBOARD CORPORATION, Defendant-Appellee, and OWENS CORNING, PITTSBURG CORNING, EAGLE PICKER, KEENE CORPORATION, KEENE BUILDING PRODUCTS, GALE CORPORATION, CELOTEX, and CAREY CANADIAN MINES, LTD., Defendants* I BEFORE: Beasley, P.J., R.S. Gribbs, and J.R. Ernst*, JJ. J.R. ERNST, J. (concurring in part? dissenting in part). I concur in the result reached by the majority on plaintiffs' wrongful death actions for death resulting frpm asbestosis. I agree with the majority that "any right of action for asbestosis against these defendants arose presumably when the decedents and that the running of the statute of limitations during the lifetime of plaintiffs' deceased bars plaintiffs' statutory right as personal representatives to sue for wrongful death attributable to asbestosis. ,111 aumLUtfi'i^tahdVtiia^statWt^-dr^iitatib--n---e-A_tboe-.g.aj..>n.s.^L.-Lfrcoyt~urn--j~t;"' at tne */ Since this opinion does not control the disposition of this action, an exhaustive analysis and review of authorities does not appear to be warranted. However, suffice it to note that URL 09850 33E5I5 * *2-# Parish v B F Goodrich Co, 395 Mich 271, 280? 235 NW2d 570 (1975); Williams v Polgar, Circuit judge, sitting on the Court of Appeals by assignment. -2- URL 09851 391 Mich 6, 24-25; 215 NW2d 149 (1974); Bonney v The Upjohn Co, 129 Mich App 18, 23-24; 342 NW2d 551 (1983); Filcek v Utica Building Co, 131 Mich App 396; 345 NW2d 707 (1984). As Justice Brennan pointedly observed in Connelly v Paul Ruddy*a Equipment Repair & Service Co. 388 Mich 146, 151; 200 NW2d 70 (1972), ru 'l the "stai plaints us e~of^AOt"ion befoperceive no cogent reason for applying a different rule to the present plaintiffs, claiming recovery for latent occupational or industrial disease resulting from exposure to noxious substances, than the rule that has been applied in other consumer product liability cases. The postulation that the statute of limitations is a statute of repose "intended to protect commercial and industrial interests by fixing a certain limit upon exposure to liability for faulty products and work manship" has been unequivocally rejected by the Supreme Court. Ruddy, supra, p 151. It should also be noted that ctiana-^ofor f aintiffs1 claims predicated on a theory of implied warranty are governed by MCL 600.5833; 27A.5833, which provides that "the claim accrues at the time the breach of warranty is discovered or reasonably should be discovered." See Parish v B F Goodrich, supra, p 281? Williams v Polgar, supra, p 24 n 16. It is my opinion that the claims of plaintiffs Revard and Glazier for wrongful death due to bronchogenic carcinoma and mesothelioma, respectively, are timely. The trial court found that bronchogenic carcinoma and mesothelioma were not complica tions of the disease of asbestosis. Rather, they were separate and distinct diseases resulting from asbestos exposure. Despite this finding, the majority has concluded that the diagnosis of the disease asbestosis started the clock running as to all of plaintiffs' claims for damages resulting from exposure to asbestos, including future cancer. This ignores the fact that during such time plaintiffs would have been unable to recover -3- URL 09852 damages for future occurring asbestos-induced cancer, because such potential injury was at that time merely speculative and incapable of proof to a reasonable certainty. In Wilson v Johns-Manville Sales Corp, 221 US App DC 337; 684 F 2d lli (1982); Fearson v Johns-Manville Sales Corp, 525 F Supp 671 (D DC, 1981); and Pierce v Johns-Manville Sales Corp, 296 Md 670; 464 A2d 1020 (1983), the courts comprehensively addressed this issue and, in each case, concluded that a diagnosis of asbestosis did not start the running of the period of limitation on plaintiff's right to sue for mesothelioma or bronchogenic carcinoma, attributable to the same asbestos exposure, but not manifest until after a claim for asbestosis had become barred. In Fearson, supra, the Court observed: "The plaintiff's illustration of this point by way of a hypothetical clarifies this reasoning. Suppose an individual takes a drug which causes a skin rash which disappears in a few days and no legal action is brought because of the minimal harm caused. Years later, the individual discovers that he or she has cancer which resulted from the use of the same product. Under defendant's theory, the failure to sue for the skin rash would bar the suit for cancer." 525 F Supp 674 n 4. See also Jackson v Johns-Manville Sales Corp, 727 F2d 506 (CA 5, 1984). In Funk v General Motors Corporation, 392 Mich 91, 104? 220 NW2d 641 (1974), the Supreme Court stated that "[t]he policy behind the law of torts is more than compensation of victims. It seeks also to encourage implementation of reasonable safeguards against risks of injury." The rule adopted by the majority does not advance either of these purposes. Absent clear directive from the Legislature or the Supreme Court to the contrary, I believe this Court should adopt the analysis and conclusions reached in Wilson, supra? Fearson, supra? and Pierce, supra, and hold that, /s/ J. Richard Ernst -4- D V K E M A . G O SSETT. SPEN C ER . G O O D N O W ft T R IG G 3 5 T H FLO O R 4 0 0 R E N A IS S A N C E C EN TER D E T R O IT . M IC H IG A N 4 8 2 4 3 : STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF MACOMB KENNETH GRIMM, Personal Representative of the ESTATE OF HELEN GRIMM, Deceased, Plaintiff, -vs- FORD MOTOR COMPANY, a foreign corporation, UNION CARBIDE CORPORATION, a foreign corpora tion, DIAMOND SHAMROCK CORPORA TION, a foreign corporation, STAUFFER CHEMICAL COMPANY, a foreign corporation, TENNECO, INC., a foreign corporation, TENNECO CHEMICALS, INC., a foreign corporation, UNIROYAL, INC., a foreign corporation, ALLIED CHEMICAL CORPORATION, a foreign corporation, HOOKER CHEMICALS & PLASTICS CORP., a foreign corporation, FIRESTONE TIRE & RUBBER COMPANY, a foreign corporation, B. F. GOODRICH COMPANY, a foreign corporation, GOODYEAR TIRE & RUBBER COMPANY, a foreign corporations, jointly and severally. Case No. 83-2872-NO Hon. Raymond R. Cashen 3D dcccono' PROOF OF SERVICE STATE OF MICHIGAN COUNTY OF WAYNE ) ) ) ss. Anne Cramton, being first duly sworn, deposes and says that on the 5th day of February, 1985, she did serve copies of Uniroyal, Inc., Union Carbide Corporation, Tenneco Resins, Inc., Allied Chemical Corporation, Occidental Chemical Corporation and The Firestone Tire & Rubber Company*s Motion For Summary Judgment, Brief in Support of Defendants* Motion For Summary Judgment, Notice of Hearing thereon and a Proof of Service upon the following: O Y K E M A . G O SSETT. SPEN C ER , G O O D N O W & T R IG G 35T H FLO O R 4 0 0 R E N A IS S A N C E C EN TER D E T R O IT . M IC H IG A N 4 S 2 4 3 : Francis P. Hughes Attorney for Plaintiff 1000 W. University Drive Suite 314 Rochester, MI 48063 W. Gerald Warren Attorney for Defendant-Ford Motor Co. 800 First National Bldg. Detroit, MI 48226 Ralph Valitutti, Jr. Attorney for Defendant- Diamond Shamrock Corp. 2000 Buhl Building Detroit, MI 48226 Ralph R. Safford Attorney for Defendant-Stauffer Chemical Co. 100 W. Long Lake Rd., Suite 100 Bloomfield Hills, MI 480X3 Ralph W. Barbier, Jr. Attorney for Defendant- B. F. Goodrich Co. 34820 Harper Avenue Mt. Clemens, MI 48043 John J. Lynch Attorney for Defendant-Goodyear Tire & Rubber Co. 333 W. Fort, Suite 1600 Detroit, MI 48226 by placing copies of said pleadings in envelopes addressed as set forth above with first-class postage prepaid thereon and depositing the same in the United States Mail receptacle' located in the Renaissance Center, Detroit, Michigan. Anne Cramton Subscribed and sworn to before me this 5th day of February, 1985. URL 09854 DENISE ffl. MacDOUQALL Notary Public. Wayna County. Mr My Commission Expires Oct 4, 1987 2