In her Brief on the Merits, Petitioner pointed out that in Childs v. Haussecker, 974 S.W.2d 31 (Tex. 1998), the Court anticipated the very issues presented here by noting that its “formulation of the discovery rule for latent disease cases does not necessarily preclude a plaintiff from recovering damages for every disease that ultimately manifests itself as a result of the occupational exposure.” Id. at 41. In part because of this recognition, the Court refused to delay the accrual of a cause of action for latent injury until the plaintiff knows or should know that the injury is permanent. Id. at 41-42. If Texas law did not allow multiple suits for multiple separate injuries, the Court reasoned, it would be unfair, impractical, and uneconomical to hold that the cause of action (the only one that the plaintiff might assert) accrues even though the plaintiff believes that the condition caused by the toxic exposure might go away. But because a plaintiff need not sue for undeveloped and separate toxic injuries until after they appear, it is not harsh or unfair that a cause of action for a particular injury accrues even before the plaintiff knows that the injury is permanent. Id.

Respondent Owens Corning asserts that Petitioner “dramatically overstates the significance of this Court’s opinion in Childs.” Owens Corning Brief (“OC Br.”) 8. In Childs, Owens Corning correctly points out, the plaintiff had not developed a serious injury after the accrual of a cause of action for a different, separate injury. Therefore, Owens Corning argues, Childs “most assuredly did not decide whether, in such a case, a cause of action would accrue at a different time, or whether the plaintiff could prosecute more than one case.” OC Br. 8. But, as explained above, the Court’s observation that a plaintiff could pursue separate actions for separate injuries was essential to its holding that the plaintiff’s actual or constructive knowledge of the permanency of harm is not required for limitations to be triggered. Thus, the Court’s language recognizing the viability of separate claims is not mere dictum.

Respondent Pittsburgh Corning emphasizes the Court’s language in Childs that “[t]he seriousness of a personal injury need not be fully apparent or even fully developed in order to commence the statute of limitations.” Pittsburgh Corning Brief (“PC Br.”) 16, quoting Childs, 974 S.W.2d at 41 (emphasis by Pittsburgh Corning). But the Court’s use of the singular form of the word “injury” and the adverb “fully” to modify the term “developed” is significant — particularly in light of the Court’s recognition in the very next paragraph that the discovery rule it announced does not preclude separate suits based on separate injuries caused by the same toxic exposure. Mr. Pustejovsky sustained more than one “injury” caused by his asbestos exposure. And his second injury — mesothelioma — had not “developed” at all in 1982 when his asbestosis appeared. The language in Childs quoted by Pittsburgh Corning means that accrual of the claim based on Mr. Pustejovsky’s mesothelioma did not await definitive diagnosis and communication of an accurate prognosis. It does not mean that the statute of limitations on a claim for one injury begins to run upon the plaintiff’s actual or constructive discovery of an earlier, entirely separate and independent injury.

Owens Corning implies that the language in Childs permitting separate claims for separate injuries is inconsistent with previous formulations of the discovery rule. OC Br. 29-34. But the cases discussed by Owens Corning do not shed meaningful light on the “separate injury” issues discussed in Childs or raised here. In four of those decisions, the Court declined to apply the discovery rule altogether. Diaz v. Westphal, 941 S.W.2d 96 (Tex. 1997) (refusing to apply discovery rule to medical malpractice claim because the medical malpractice statute abolished the rule); S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996) (refusing to apply discovery rule to claim of sexual abuse because injury was not “objectively verifiable”); Computer Associates Int’l v. Altai, Inc., 918 S.W.2d 453 (Tex. 1996) (refusing to apply discovery rule to claim for misappropriation of trade secrets because tort was not “inherently undiscoverable”); Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36 (1888) (refusing to apply discovery rule to property damage claim). In Russell v. Ingersoll-Rand Co., 841 S.W.2d 343 (Tex. 1992) the Court held that a claim that was barred by limitations could not be revived after the plaintiff’s death; there was no contention that the plaintiff did not discover, and had no opportunity to seek damages for, the injury prior to death. In Murphy v. Campbell, 964 S.W.2d 265, 269-273 (Tex. 1997), the Court held that an action for accounting malpractice accrues not when litigation assessing a tax deficiency is completed, but when the plaintiff reasonably should know that the accounting advice imparted by the defendant was wrong and will cause harm. As Owens Corning points out, the Court noted that “a cause of action begins to run when the plaintiff knows or reasonably should know that he has been legally injured by the alleged wrong, however slightly.” Id. at 273. However, the Court did not hold or imply that more than one legal injury cannot arise from the same tortious conduct, and expressly noted that a cause of action will accrue only “when the claimant should know of his injury.” Id. at 271. Nothing in the cases cited by Owens Corning undermines the Court’s language in Childs recognizing the viability of separate claims for separate injuries caused by the same toxic exposure.

Pittsburgh Corning similarly relies on “long-standing Texas law” for the proposition that a defendant’s breach of legal duty gives rise to only one indivisible cause of action. PC Br. 4, 5. But this principle bars successive claims arising out of the same breach of legal duty only if those claims “could have been litigated in the original cause of action.” Jeanes v. Henderson, 688 S.W.2d 100, 103 (Tex. 1985); see also Pierce v. Reynolds, 329 S.W.2d 76, 78 (Tex. 1959) (rule against claim splitting prevents several suits “when a single action would suffice”). And the cases that Pittsburgh Corning cites to show that the statute of limitations begins to run upon invasion of a legal right even if the resulting damage is not apparent to the plaintiff (PC Br. 5 n.4) are irreconcilable with the discovery rule applied in Childs and are uninformative on how the rule should be applied when a tortious act causes more than one “inherently unknowable” and “objectively verifiable” injury.

Ultimately, Respondents’ conceptualization of the accrual rules applicable in latent injury cases fails because it proves too much. Assume a worker who is occupationally exposed to a toxic substance and develops an immediate and acute but temporary reaction, forcing him to seek medical treatment and miss two weeks of work. The reaction is undoubtedly a “legal injury” and compensable; under Childs, the statute of limitations would begin to run on a claim for the injury even though the injury is not permanent. 974 S.W.2d at 41-42. The reaction subsides after treatment; although the exposure places the worker at a slight risk of an unusual cancer associated with the toxic substance, no future harm is probable. Because the worker’s reaction was temporary, and because he received workers’ compensation benefits, the worker chooses not to sue the supplier. He returns to work and avoids any further exposure to the substance. Twenty years later, he develops the unusual cancer, which is conclusively linked by his physicians to his exposure. Under the “one cause of action rule” on which Respondents rely, the worker’s claim is time-barred; the worker sustained “legal injury” at the time of his acute reaction, and was obligated to seek damages for all future consequences of his exposure (even improbable consequences) upon the first manifestation of harm. Respondents’ “heads I win, tails you lose” approach would effectively deny the worker any opportunity for compensation for the risk or occurrence of cancer caused by the toxic exposure. Damages for risk of future cancer would not be recoverable following the worker’s acute reaction, because they were not reasonably probable to occur; damages for the actual occurrence of cancer would not be available when the cancer develops, because they were sought too late.

Texas law does not authorize Respondents’ approach to accrual in latent injury cases. The limitations cases cited by Respondents do not contemplate or govern situations in which more than one discrete injury arises from the defendant’s tortious conduct. Whether the language is characterized as a holding, dictum, or merely a tentative observation, the Court should not retreat from its recognition in Childs that separate injuries from a toxic exposure may accrue at different times, and that a cause of action for each separate latent injury caused by a toxic exposure does not accrue until the plaintiff discovers, or should have discovered, the particular injury.


A.Respondents Have Cited No Case or Authority from This State or Any Other Jurisdiction Suggesting That the Assertion of a Claim Against One Defendant Bars the Later Assertion of a Claim Based on the Same Conduct Against Different Defendants.

Respondents acknowledge that courts have been nearly unanimous in holding that the statute of limitations on a claim based on a latent asbestos-related cancer does not begin to run until the cancer appears, even if the plaintiff had previously developed a separate nonmalignant injury caused by the asbestos exposure. Some of these courts, however, have expressly refrained from deciding whether a person who sued for damages based on a nonmalignant injury may sue again if a cancer develops later. See, e.g., Wilson v. Johns-Manville Sales Corp. 684 F.2d 111, 117 (D.C. Cir. 1982) (“[W]e need not and do not decide . . . whether judgment on a claim for asbestosis pursued between 1973 and 1976 would have precluded a subsequent claim based on the 1978 mesothelioma diagnosis.”); Larson v. Johns-Manville Sales Corp., 399 N.W.2d 1, 2 n.1 (Mich. 1987) (“We emphasize that we are not deciding in this case whether a claimant who did file a suit to recover for asbestosis may file a second suit for cancer at a later date.”). In this case, Mr. Pustejovsky did assert a claim for his asbestosis, albeit not against these defendants and not in a proceeding which resulted in a judgment. Owens Corning argues that even if the Texas statute of limitations allows separate accrual dates for separate injuries caused by the same toxic exposure, Mr. Pustejovsky’s earlier claim against a nonparty to this case provides an “independently sufficient” reason to bar the claim for mesothelioma. OC Br. 1.

Owens Corning’s reliance on traditional rules of claim preclusion fails, however, because the Mr. Pustejovsky’s prior claim was not asserted against Owens Corning and was not reduced to judgment. Owens Corning apparently views this as a mere detail, arguing that “this peculiarity of the present litigation does not undermine the application of the single action principle to this case or to other asbestos litigation.” OC Br. 7. But Owens Corning has not cited, and Petitioners have not found, a case from Texas or from any other jurisdiction precluding a suit merely because the plaintiff asserted a claim against a nonparty. In Childs, the Court noted that the fact that the plaintiff’s workers’ compensation claim had not been adjudicated prevented application of the doctrines of res judicata and collateral estoppel. 974 S.W.2d at 46 (Tex. 1998) (“because Haussecker abandoned [his workers’ compensation claims], the doctrines of res judicata and collateral estoppel do not bar retrial.”). And in Wilson, Justice Ginsberg noted that rules governing the preclusive effect of judgments were inapplicable because “[r]ules of res judicata (claim preclusion) and collateral estoppel (issue preclusion) concern the preclusive effects of former adjudication. Here there has been no former adjudication, no prior action resulting in a judgment to be given effect in a subsequent action.” Wilson, 684 F.2d at 118 (emphasis in original).

Owens Corning does cite cases for the propositions that a judgment in a suit will foreclose later suits arising out of the same transaction,1 that a plaintiff may recover only “one satisfaction” of damages from multiple parties,2 and that a defendant is entitled to have liability and damages issues determined by the same jury.3 But none of these cases support the contention that a plaintiff is barred from suing a defendant merely because the plaintiff had sued (but not recovered a judgment against) a different defendant even for the same harm, let alone for different harm caused by the same course of tortious conduct. And the one satisfaction rule cited by Owens Corning is not a complete bar to suit, but only entitles the named defendant to a credit for settlements obtained from the nonparty.

In short, the doctrines of claim preclusion invoked by Owens Corning simply do not apply. The doctrine of res judicata does not apply because the Pustejovskys did not sue Owens Corning in the earlier action. The doctrine of collateral estoppel does not apply because the Pustejovskys’ claim based on asbestosis in 1982 was never reduced to judgment. Ultimately, Owens Corning argues that the fact that Mr. Pustejovsky did not sue and recover a judgment against Owens Corning “means nothing, for Mr. Pustejovsky’s claim still existed in 1982 and reached all potentially responsible persons.” Owens Corning Br. 8. But this is nothing more than an argument that, for limitations purposes, Mr. Pustejovsky’s cause of action accrued in 1982. Other than establishing that Mr. Pustejovsky had discovered his asbestosis in 1982 (a fact that Petitioner has never disputed), the Pustejovskys’ claim against Johns-Manville has no legal significance.

Because the Pustejovskys did not sue any of the Respondents prior to this action, the Court need not consider whether a person exposed to a toxic substance may, consistent with Texas rules concerning claim preclusion, maintain successive suits against the same defendant for separate injuries caused by the exposure. Should the Court consider the question, however, it should hold that Texas law should and does permit separate suits for separate, successive injuries.

B.The Court Should Not Craft a Rule Limiting Plaintiff To One Lawsuit Per Toxic Exposure.

Respondents argue that even if Texas law recognizes separate accrual dates for separate injuries caused by the same toxic exposure, the Court should craft a rule permitting a person exposed to a toxic substance to file only one lawsuit concerning the exposure. Presumably, the person could seek compensation for the initial injury caused by the toxic exposure, or could forbear legal action to preserve a possible later claim based on separate, more severe injuries should they develop, but could not assert both claims. Nothing in Texas law or policy supports such a rule.

As Petitioner pointed out in her Brief on the Merits, the Texas rules of claim preclusion prohibit a second suit against a defendant “if it arises out of the same subject matter of a previous suit and which through the exercise of diligence, could have been litigated in a prior suit.Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992) (emphasis added). In this case, the plaintiff could not have litigated his claim based on mesothelioma in the earlier action for asbestosis, because the disease had not yet developed. The rules forbidding relitigation of claims literally do not apply.

Moreover, it would be unfair to require a plaintiff to forbear seeking redress for a current, compensable injury to preserve the ability to assert a future claim based on a separate, more serious injury caused by the same toxic exposure. Such a rule would give the defendant an undeserved windfall, while depriving the plaintiff of the opportunity to obtain full compensation for all of his or her injuries. A plaintiff should not be forced to waive the right to compensation for present injuries, regardless of their severity, merely to preserve the opportunity to assert a claim for future injuries that will not necessarily develop. Conversely, a plaintiff should not be penalized in a later action for previously claiming compensation to which he was entitled.

The Court’s language in Childs indicates that if a plaintiff sustains more than one separate and distinct latent injury caused by a toxic exposure, the plaintiff may claim damages for each injury. The Court noted that the discovery rule in latent injury cases “does not necessarily preclude a plaintiff from recovering damages for every disease that ultimately manifests itself as a result of the occupational exposure.” 974 S.W.2d at 41 (emphasis added). Clearly, a plaintiff can “recover damages” only by asserting a claim against the potentially liable defendants. Thus, the Court’s language in Childs condones the very “multiple lawsuit” rule that Owens Corning condemns as “extreme.” OC Br. 9.

Although some courts have refrained from deciding the issue (see discussion of Wilson and Larson above), every court to consider the issue has concluded that a plaintiff does not sacrifice a later claim for an undeveloped separate injury by asserting an earlier claim for extant injuries. See Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315, 320 (5th Cir. 1986) (applying the Jones Act) (“A prior but distinct disease, though the tortfeasor may have paid reparations, should not affect the cause of action and damages for the subsequent disease.”); Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517, 520 (Fla. Ct. App. 1985) (affirming asbestosis judgment and noting that “the plaintiff may bring a second action for damages if and when he actually contracts cancer”); Smith v. Bethlehem Steel Co., 492 A.2d 1286, 1296 (Md. 1985) (plaintiff’s suit based on asbestosis did not preclude later suit based on colon cancer); Fusaro v. Porter-Hayden Co., 548 N.Y.S.2d 856, 859-60 (N.Y. Super. Ct. 1989), aff’d 565 N.Y.S.2d 357 (1st Dep’t 1991) (permitting successive claims for asbestosis and mesothelioma); Mauro v. Raymark Indus., Inc., 561 A.2d 257, 267 (N.J. 1989) (adopting an interpretation of the single action rule “accommodating all damage claims attributable to present injury and deferring compensation only for disease not yet incurred and not reasonably probable to occur”); Simmons v. Pacor, Inc., 674 A.2d 232, 237 (Pa. 1996) (recognizing that Pennsylvania permits “a plaintiff to commence separate causes of action for separate asbestos related diseases”). Respondents do not suggest that these jurisdictions have any more of an interest in entertaining multiple claims based on the same exposure than does Texas.

Owens Corning complains that to deny nonparties the protection of Texas claim preclusion rules would promote “tactical gamesmanship” by plaintiffs: their counsel will join only some of the known defendants in a plaintiff’s first suit, holding in reserve a possible claim against other known defendants for a future malignancy. OC Br. 20. Although the factual premise for Owens Corning’s complaint is inconsistent with Owens Corning’s earlier observation that “[w]hen plaintiffs sue, they invariably name everybody” (OC Br. 7), and although Owens Corning has absolutely no basis for implying that Mr. Pustejovsky engaged in this “tactic,”4 the complaint furnishes the Court with an additional reason for allowing successive suits for different injuries against the same defendant. If a subsequent cause of action accrues for latent injury caused by a toxic exposure, it should be maintainable against all culpable defendants, even those that have compensated the plaintiff for a prior separate injury.5


Respondents and Amici Curiae Atlantic Richfield Company, et al (the “premises owners”) assert a variety of public policy reasons for refusing to allow a person to bring separate, successive suits for different, successive injuries caused by the same toxic exposure. Each of these public policy concerns is either illusory or overstated, and is far outweighed by the fairness and benefits of judicial economy that will be achieved by recognizing the right to bring separate claims for separate injuries.

A.Texas Courts Will Not Be “Deluged” with Multiple Claims Arising Out of the Same Toxic Exposures.

After accusing Petitioner of “appealing more to emotion than to logic or necessity,” Owens Corning charges that Petitioner “wants to put revolving doors on all the courthouses in Texas so that the thousands of asbestos claimants already flooding the Texas courts can keep returning to the courthouse for decades.” OC Br. 2.6 The premises owners add to the hyperbole, arguing that allowing separate suits for separate injuries would deluge the Texas courts with “thousands, if not tens of thousands, of new suits.” Br. of Amici Curiae Atlantic Richfield Co., et al., at 2. But experience and logic indicate that the concerns that Texas courts will be flooded with subsequent injury cases are wildly overstated.

Texas courts have presided over asbestos litigation for decades. Yet the courts in Texas have generated only three published opinions — Graffagnino v. Fibreboard Corp., 776 F.2d 1307 (5th Cir. 1985), Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129 (5th Cir. 1985), and Pecorino v. Raymark Indus., Inc., 763 S.W.2d 561 (Tex. App. — Beaumont 1988, writ denied) — reflecting the assertion in Texas of a subsequent injury claim. And, to Petitioner’s knowledge, this is the first subsequent injury claim to be presented to this Court since Pecorino, ten years ago. Any suggestion that “second injury” plaintiffs have been deterred from bringing their cases in the face of the Graffagnino, Gideon, and Pecorino decisions would be disingenuous: Graffagnino and Gideon are federal decisions merely predicting Texas law; Pecorino is a splintered opinion with little if any precedential value; and the asbestos plaintiffs’ bar is not known for its docility. If a “separate injury rule” would generate tens of thousands of cases, this Court would have seen some of them by now.

Respondents and their amici pretend that recognition would allow an unlimited number of suits by a plaintiff based on a single toxic exposure. This is wrong, of course; a plaintiff would be limited by the number of separate, compensable injuries that occur at different times from the same exposure. The right to sue would depend on a showing that the injury is separate from and independent of the prior disease caused by the exposure. Thus, a plaintiff would not be permitted to sue for progression of a disease or for “injuries [that] unforeseeably worsen.” Atlantic Richfield Br. 9 n.5.

The reality is that as a practical matter, the “separate injury rule” stated in Childs and advocated by Petitioner here would rarely, if ever, apply in cases of traumatic injury. And aside from asbestos, toxic substances that cause more than one separate, compensable, latent injury are, thankfully, relatively unusual; of the 29 “separate injury” cases listed in the chart appended to Petitioners’ Brief on the Merits, all but five involve claims of asbestos disease.7 But even if application of the “separate injury rule” would increase the number of cases that will be brought in the Texas courts, the benefits accorded by the rule — fairness to claimants, awards that more accurately reflect the damages sustained by the claimants, eliminating the need for speculative litigation — justify its application. “Congestion in the courts cannot justify a legal rule that produces unjust results in litigation . . . .” United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 408 (1975); see also In re Ethyl Corp., 975 S.W.2d 606, 620 (Hecht, J., dissenting) (“as important as efficiency has become to the justice system, it is not as important as justice itself”) .

B.Plaintiffs Are Not Adequately Compensated Under the Single-Action Rule Applied by the Court of Appeals.

Respondents suggest that the single-action rule applied by the court of appeals allows diligent plaintiffs to recover adequate compensation for the present and future harm caused by asbestos exposure because Texas law allows diligent plaintiffs to recover future damages.8 But in Texas a plaintiff can recover only damages that will occur within “reasonable medical probability.” Typically, in cases of nonmalignant asbestos-related disease, the expert medical testimony does not establish that the plaintiff, within reasonable medical probability, will develop a cancer caused by asbestos. Thus, courts applying Texas law generally deny plaintiffs damages attributable to the possibility that the plaintiff will develop an asbestos-related cancer in the future. See, e.g., Dartez v. Fibreboard Corp., 765 F.2d 456, 467 (5th Cir. 1985) (the “proof does not establish a reasonable medical probability that Dartez will develop either cancer or mesothelioma because of his exposure to defendants’ products. Accordingly, under Texas law he is not entitled to recover damages for any increased risk of those diseases.”); Fibreboard Corp. v. Pool, 813 S.W.2d 658, 682 (Tex. App. — Texarkana 1991, writ denied) (evidence indicating “a likelihood that Pool will not get cancer” was insufficient to support expert’s estimate of “reasonable and necessary future medical expenses” that was based in part upon the possibility that Pool would develop cancer). Under the single-action rule proposed by Respondents, plaintiffs like Dartez and Pool, whose experts are unable to state that they will contract an asbestos-related cancer within reasonable medical probability, would have no opportunity to collect damages in any amount and at any time for either the risk or the occurrence of cancer caused by asbestos.

Pittsburgh Corning notes, however, that although plaintiffs often cannot show a reasonable medical probability that a particular cancer or complication will occur in the future due to asbestos exposure, plaintiffs can aggregate the risks and show that in general, plaintiffs with nonmalignant asbestos-related injuries will likely incur significant medical expenses and will likely die of an asbestos-related disease of some sort. PC Br. 19-24. The availability of such evidence and arguments, Pittsburgh Corning contends, means that persons with asbestos exposure have an opportunity to collect adequate compensation for later developing injuries even if Texas recognizes only a single cause of action arising from exposure to asbestos. Pittsburgh Corning’s reliance on the ingenuity of plaintiffs’ counsel in attempting to secure compensation for future injuries for their clients is misplaced for several reasons.

First, in developing accrual rules applicable in latent injury cases, the Court should not be influenced by the fortuity that the medical evidence in asbestos cases happens to indicate that a person with a nonmalignant asbestos injury will probably incur substantial medical expenses and die prematurely from the either the progression of that injury or from the development of some separate asbestos-related injury. As the hypothetical in Part I of this Brief shows, one can easily envision a toxic exposure that causes preliminary nonmalignant injuries serious enough to give rise to a claim for damages, but that results in a later significant future harm only in a minority of cases. Victims of such an exposure could not assert a claim for future damages under Texas law; in Pittsburgh Corning’s view, the single-action rule would bar a later suit if a subsequent catastrophic injury occurs. Plaintiffs in such cases would not have any opportunity to receive full or even partial compensation for these later-developing, entirely separate injuries. The Court should not be reassured by Pittsburgh Corning’s suggestion that the ability of some plaintiffs to recover damages for future consequences reasonably likely to occur ameliorates the harsh effects of the single-action rule applied by the court of appeals.

Second, Pittsburgh Corning’s factual premise is unsound, because Texas courts do not invariably admit the type of evidence that Pittsburgh Corning attaches to its brief. Although the excerpt of testimony attached to Pittsburgh Corning’s brief indicates that the court received the evidence without objection, defendants in other asbestos cases routinely object to composite projections of future mortality, arguing that if a component of the projection is not likely to occur, it cannot be considered in awarding future medical expenses. Defendants also routinely challenge the legal and factual sufficiency of the evidence to support awards of future damages, arguing that to the extent that such awards include amounts for the cost of future cancer treatment — expenses that the plaintiff probably won’t incur — the awards are excessive and should be struck.

Third, even if a plaintiff with a nonmalignant asbestos injury can effectively recover some measure of damages for his or her risk of developing an asbestos-related cancer — a proposition with which Petitioner vehemently disagrees — that approach yields results that are inherently far more speculative, and less fair to both plaintiffs and defendants, than a rule allowing plaintiffs to recover damages for the cancer when it occurs. As Pittsburgh Corning concedes, “the reality is that a plaintiff’s risk of developing cancer is a hotly contested issue in every asbestos case.” PC Br. 21. In cases in which the plaintiff is unable to show a likelihood of future cancer or in which the jury disbelieves plaintiff’s complicated epidemiological evidence of future risk, future cancers go entirely uncompensated. On the other hand, those few plaintiffs who present evidence that they will likely develop an asbestos-related cancer and receive full damages based on the future cancer but who don’t actually contract cancer receive an enormous windfall. And if the jury awards damages based on the percentage likelihood that the cancer will actually occur, inaccuracy is inevitable; plaintiffs who develop cancer receive less than their full damages, and those who do not are overcompensated. See Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 n.44 (D.C. Cir. 1982).

Pittsburgh Corning notes that future damages are speculative in virtually every personal injury case, and apparently sees no more reason to allow a subsequent suit based on a latent cancer caused by a toxic exposure than to recognize a separate cause of action for progression of a traumatic injury. PC Br. 22-23. But the two types of cases are different and justify different results. Mr. Pustejovsky’s cancer is medically separate from and independent of his earlier nonmalignant injury, and would have been actionable had the earlier injury not occurred; in contrast, progression of a traumatic injury cannot occur without the original injury. Both the financial and non-pecuniary damages caused by Mr. Pustejovsky’s cancer are easily distinguishable and segregable from the damages caused by his earlier nonmalignant injury; in contrast, damages caused by progression of an injury are often intertwined with those caused by the effects of the initial trauma. And while it is true that assessment of future damages in a traumatic injury case is inherently speculative, in cases involving a risk of future cancer the range of possible future damages is especially vast. The degree to which a traumatic injury will progress is important; whether or not a plaintiff develops cancer is literally a matter of life or death. It is simply unrealistic to suggest that it is more desirable to treat the possibility of cancer as another element of future damages than to recognize the viability of a separate, subsequent cause of action based on cancer if and when it develops.

C.The Separate Injury Rule Is Not Unworkable and Will Not Lead to Double Recovery.

Respondents predict that the separate injury rule will “drastically alter” asbestos litigation in Texas and will create “intractable problems” for courts applying the rule. PC Br. 27; OC Br. 3. The problems envisioned by Owens Corning include difficulty in determining whether a subsequent claim involves a “separate injury” and should be permitted, difficulty in allocating damages to the first and subsequent claims, and new disincentives to settlement. OC Br. 15-28. None of these problems have been reported in the many other jurisdictions that have endorsed the rule, and none justifies approving an interpretation of Texas law which would preclude a claim based on a catastrophic injury before the injury occurs.

Owens Corning maintains that a rule recognizing separate accrual dates for separate injuries caused by a toxic exposure would be difficult to apply because whether the injuries are truly separate would “depend on technical expert testimony” that “will often be in dispute and not susceptible to summary judgment.” OC Br. 16. According to Owens Corning, “[c]laim accrual has never before been dependent on expert medical testimony or diagnosis.” Id. Owens Corning even questions whether the asbestosis and mesothelioma sustained by Mr. Pustejovsky really are separate and medically distinct, suggesting that the contention that diseases are separate “hangs by a very tenuous thread” and disparaging Petitioner’s reliance on “her retained expert’s opinion.” Id.

Having offered no evidence of its own in support of its summary judgment motion and having never challenged below Petitioner’s proof that Mr. Pustejovsky’s injuries were indeed separate, Owens Corning is poorly situated to complain that the factual premise of Petitioner’s argument is “tenuous.” And Owens Corning’s allegation that Mr. Pustejovsky’s asbestosis and mesothelioma may not be separate injuries is not credible in light of repeated concessions by its co-defendants in other cases,9 and holdings by courts,10 that the exact injuries claimed in this case are independent and distinct. Texas courts should have no trouble concluding as a matter of law that asbestosis and cancer are “separate” injuries that support separate causes of action.

Moreover, Owens Corning’s general contention that the Court should not let “the accrual or scope of a claim turn on disputed facts” (OC Br. 17) overlooks the Court’s observation in Childs that “[i]nquiries involving the discovery rule usually entail questions for the trier of fact” but “may be determined as a matter of law if reasonable minds could not differ about the conclusion to be drawn from the facts in the record.” 974 S.W.2d at 44. This Court has not shared Owens Corning’s apprehension over allowing accrual of a claim to turn on disputed medical facts. See Rowntree v. Hunsucker, 833 S.W.2d 103, 106 (Tex. 1992) (accrual of action depended on whether “blockage of the arteries is a condition discrete from high blood pressure”). Where, as here, there is no colorable dispute that the injuries are separate, the court could make the determination itself;11 where the parties colorably dispute the separate character of the subsequent injury, the court would leave the resolution of the issue to the jury, like any other contested matter.

Owens Corning anticipates “very difficult problems in trying to segregate and allocate damages between Case One and Case Two,” and suggests that the separate action rule would inevitably lead courts to award duplicative damages. OC Br. 19. The concern is overcomplicated and pretextual. As shown above, and as most courts have acknowledged, plaintiffs with asbestosis generally cannot recover damages based on their risk of contracting a future asbestos-related cancer. And although they can recover damages for their fear of contracting a cancer, such damages compensate the plaintiff for a present harm. Thus the damages recoverable in a later claim based on cancer do not duplicate the elements of damages recoverable in an earlier claim for nonmalignant injury.

Owens Corning also predicts that the separate injury rule will create “disincentives to settlement by effectively denying defendants any means to avoid the possibility of being sued anew at a later time, save by going to trial in the non-malignancy case and possibly obtaining preclusive effect from a judgment in that case.” But under the separate injury rule, a defendant would enjoy no preclusive effect from a judgment in the earlier case; thus, the rule would provide no incentive for the defendants to take the case to trial rather than pay the fair value of the current claim. Moreover, under the separate injury rule defendants would still be free to negotiate the release of future claims; they would have simply have to compensate the plaintiff for the release. Conversely, under the single-action rule proposed by Respondents, plaintiffs cannot preserve their ability to file a claim for a subsequent cancer should one develop, as Owens Corning suggests. OC Br. 28. Defendants cannot be expected to grant such waivers gratuitously; they will do so only if the plaintiff, in exchange, gives up all or part of a currently compensable claim. The law should protect the parties if a voluntary agreement cannot be achieved. As the United States Supreme Court has observed, “a rule of fairness in court will produce fair out-of-court settlements.” United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 408 (1975).

D.Application of the Separate Injury Rule Will Not Defeat Settled Expectations of the Participants in Asbestos Litigation, and the Court Should Not Limit the Rule to Prospective Application.

Respondents assert that a decision allowing separate suits for separate injuries caused by the same toxic exposure will “draw into doubt . . . the multitude of judgments and settlements” in asbestos cases and “upset the expectations of all litigants.” PC Br. 37; OC Br. 39. The premises owners add that such a ruling would put them “at risk for claims believed by everyone to have been finally resolved long ago.” Atlantic Richfield Br. 9 n.5. These complaints are patently unfounded. A decision allowing Mrs. Pustejovsky to pursue this claim will not affect any of the hundreds of thousands of settlements that claimants have reached with defendants in asbestos litigation in this state. The preclusive effect of a settlement will be governed by the language of the settlement agreement, as it always has been; if the settlement agreement releases all future claims, the language will be enforced. See Pecorino, 763 S.W.2d at 568-69; Graffagnino, 776 F.2d at 1308-09. Even cases tried to judgment are usually ultimately resolved with a release or satisfaction of judgment; the language of that document will continue to define the parties’ reasonable expectations.

On the other hand, defendants that have not contracted for the release of all future claims have no legitimate expectation of finality in any particular case or in their evaluation of asbestos litigation in general. This court has never ruled or indicated that the “separate injury rule” does not apply in Texas, and, as Petitioner has shown, the overwhelming majority of jurisdictions that have considered the issue have endorsed some form of the rule. The two federal cases predicting state law (Graffagnino and Gideon) and the opinion of a single judge of an intermediate appellate court (Pecorino) did not entitle defendants to assume that “subsequent injury” cases are not viable in Texas. Defendants’ wish to avoid suits for cancers and other separate injuries that arise after the development of a previous compensable injury is understandable, but provides no reason for the Court to deny recovery for subsequent injuries caused by a toxic exposure.

Respondents argue that a decision allowing separate suits for separate injuries caused by the same toxic exposure should apply only prospectively, and not to “previously resolved cases and claims.” OC Br. 40; see also PC Br. 37. Owens Corning contends that because persons who have brought asbestos cases in Texas have already been compensated for “future injuries,” allowing these persons to sue again for separate injuries based on the same exposure would provide an opportunity for “duplicative compensation for conditions that were already factored into previously entered judgments and settlements.” OC Br. 39.

But this argument depends on two erroneous premises. First, Respondents’ anecdotal evidence notwithstanding, Texas plaintiffs with non-malignant asbestos-related injuries generally have not been able to collect future damages based on their risk of developing cancer.12 See Part III (B) of this Brief supra. Prospective-only application would deny claimants — presumably even Mrs. Pustejovsky herself — the ability to obtain full and fair compensation for their catastrophic injuries.13 Second, allowing separate suits for different injuries would not “change,” but instead would properly interpret, existing Texas law. The Court should not restrict the application of a decision approving the separate injury rule.


Respondents contend that if the Court does not affirm, it should announce “a complete, interrelated series of adjustments” to substantive and procedural law in toxic tort cases in general and asbestos cases in particular in order to avoid “unnecessary appeals” concerning these unsettled areas of the law. OC Br. 38; PC Br. 27. But advisory opinions on the many collateral matters raised by Respondents and Amicus Curiae Product Liability Advisory Council, Inc. (“PLAC”) would be improper and unnecessary. Many of these issues (i.e., the viability of claims for certain types of nonmalignant injury and fear of cancer, the proper criteria for consolidation of asbestos cases, and presumptions applicable in interpreting releases) are not before the Court at all, and there is no evidentiary record to support any possible pronouncement on these matters by the Court. How, for example, could the Court determine that certain types of diseases cause no “impairment” and should not be compensable as a matter of law without any record evidence concerning the nature and characteristics of these diseases? Other issues raised by Respondents (i.e., the propriety of allowing recovery for risk of cancer and limitations on multiple claims for punitive damages) are before the Court only indirectly, and resolution of these issues should await their presentation in a proper case. Issues of trial management (such as the manner of instructing the jury and how to calculate proper set-off for prior recoveries) should be deferred to the trial courts of this state and the courts of appeal in the first instance. Rather than issue broad proclamations of law in the abstract, the Court should allow these issues to percolate in the lower courts and decide them only when presented with a concrete set of facts from which the issues are squarely and clearly drawn.

Several issues raised by Respondents and their Amici, though, warrant further discussion.

A.The Court Should Not Set an Arbitrary Limit on the Number of Separate Actionable Injuries That Could Occur from a Toxic Exposure.

Respondents and PLAC ask the Court to state “exactly how many separate causes of action can arise out of a single course of exposure.” PC Br. 28; see also OC Br. 15 and PLAC Br. 4. Attempting to show the need for an arbitrary limit, Pittsburgh Corning points out that exposure to asbestos can cause asbestosis, cancer of the larynx, cancer of the lung, cancer of the gastrointestinal tract, cancer of the kidney, cancer of the lining of the lung, cancer of the lining of the gastrointestinal tract, and asbestos warts. PC Br. 28, quoting Pecorino, 763 S.W.2d at 575-76. “How many suits will be allowed?” asks Owens Corning. OC Br. 15. The short answer is that if a person is unfortunate enough to develop each of these separate injuries in succession (and after litigation over each preceding injury has been resolved), the person should be allowed to sue separately for each separate injury. The patent absurdity of the hypothetical demonstrates that a numerical limit is unnecessary. Of the eight conditions listed above, six are cancers that are frequently, if not invariably, fatal; the possibility that a person could develop them sequentially is remote.14

PLAC appears to recognize that in practice, limiting available causes of action “to distinct and separate disease processes” will generally provide plaintiffs two causes of action, one for “non-malignant impairing illnesses” and one for a “later malignancy arising from exposure to a toxic substance.” PLAC Br. 5. But the Court should not, and need not, place a numerical limit on the number of separate, actionable injuries that can result from a toxic exposure.

B.The Court Should Not Use This Decision To Announce New Criteria for Establishing Compensable Injury.

Pittsburgh Corning and PLAC ask the Court to declare that certain types of asbestos-related injuries will no longer be compensable in the State of Texas. PC Br. 32; PLAC Br. 7. Conditions such as pleural plaques and pleural thickening, the Court is told, are asymptomatic and “do not impair the exposed individual.” PLAC Br. 7. They note that the Court recently held in Temple-Inland Products Corp. v. Carter, 42 Tex. Sup. Ct. J. 592, 1999 WL 254718 (Tex. Apr. 29, 1999) that a plaintiff who has been exposed to asbestos but has not developed any asbestos-related disease cannot recover damages for fear of contracting a disease in the future, and urge the Court to “expand the Carter holding” and announce that certain types of asbestos-related diseases are not compensable. PLAC Br. 7; see also PC Br. 31-32.

But the injury at issue in this case is mesothelioma, not an asymptomatic or non-impairing condition. The record in this case contains no evidence of any kind concerning the nature and characteristics of pleural plaques and pleural thickening and whether those diseases are truly asymptomatic and non-impairing. And the Court need not decide the viability of such claims to determine the issue in this case: whether a plaintiff may bring separate claims for separate compensable injuries caused by a single exposure.

In Carter, this Court characterized a plaintiff’s “asbestos-related pleural disease” as a “serious” injury. 1999 WL 254718 at *4. Were the Court to reconsider its characterization and contemplate a broad pronouncement on the legal viability of such claims, it should do so only in a case in which the issue is squarely presented and an adequate evidentiary record has been developed.

C.The Court Should Not Adopt New Limitations on the Right of Plaintiffs To Recover Damages for Mental Anguish.

In Carter, this Court held that Texas law does not permit recovery of damages “for fear of an increased risk of developing an asbestos-related disease when no disease is presently manifest.” 1999 WL 254718 at *4 (emphasis added). The Court acknowledged Texas authority for the proposition that “a plaintiff who has developed an asbestos-related disease may recover mental anguish damages for a reasonable fear of developing other asbestos-related diseases.” 1999 WL 254718 at *4, citing Fibreboard Corp. v. Pool, 813 S.W.2d 658, 675-76 (Tex. App. — Texarkana 1991, writ denied), cert. denied, 509 U.S. 923 (1993). PLAC forthrightly asks the Court to “overturn the decision” in Pool, to “extend its holding in the Carter case” and to declare that plaintiffs who have developed asbestos-related disease cannot recover damages for any reasonable fear that they may develop an asbestos-related cancer in the future. Owens Corning calls such claims “speculative” and “uneconomical,” and submits that claims for fear of cancer should be deferred until a cancer has actually manifested. OC Br. 23.

The Court should not change Texas law on this issue, particularly in a case in which the plaintiff does not even seek damages for “fear of cancer.” Recognition of separate causes of action for non-malignant and malignant injuries caused by the same exposure simply does not logically require the Court to effectively eliminate claims for mental anguish based on fear of cancer. An asbestosis victim’s fear of developing a future asbestos-related cancer is a current harm that is not contingent on future events; it is inaccurate to describe such claims as “speculative” or “anticipatory.”15 To defer compensation for fear of cancer to a later claim for a malignancy would effectively deny recovery for this harm altogether. Plaintiffs who never develop cancer will never be compensated for the real harm that they sustained; plaintiffs who develop cancer will seek damages for the cancer itself, not for the fear that they experienced prior to developing cancer that a cancer would someday develop. And the Texas rule permitting such claims is not “uneconomical;” as Carter establishes, claims for fear of cancer cannot stand alone, but can be asserted only in conjunction with a claim for a compensable physical injury.

With the exception of the single case upon which Respondents rely, no court that has endorsed the separate injury rule has eliminated right of plaintiffs suffering from nonmalignant injuries to claim damages for fear of cancer. On the contrary, several of these courts have explicitly recognized the continued viability of claims for fear of cancer. See Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315, 317, 320 (5th Cir. 1986) (applying the Jones Act) (damages for fear, but not risk, of cancer, may be recovered; plaintiff may sue if he contracts cancer in the future); Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517, 520, 529 (ruling that although a plaintiff with asbestosis “may bring a second action for damages if and when he actually contracts cancer,” and cannot recover for his increased risk of cancer, the plaintiff may recover damages for his “fear of getting cancer in the future”); Mauro v. Raymark Indus., Inc., 561 A.2d 257, 267 (N.J. 1989) (holding that, although plaintiffs could not recover for the increased risk of cancer, they could recover for their fear of cancer, and may bring a later action for cancer if it develops); Devlin v. Johns-Manville Sales Corp., 495 A.2d 495, 497-503 (N.J. Super. Ct. 1985) (same). This Court should not depart from the mainstream, particularly on an issue that need not be reached in order to decide this case.

D.The Court Need Not Invent New Procedures To Guard Against Hypothetical Double Recoveries.

Many courts endorsing the separate injury rule have observed that the plaintiff’s ability to bring a subsequent claim for cancer obviates the need and rationale for allowing plaintiffs to assert earlier, speculative claims for enhanced risk of contracting cancer. See cases cited in the preceding section. Respondents plausibly contend that recovery in a claim based on the plaintiff’s cancer would be at least partially duplicative if the plaintiff had collected damages representing the plaintiff’s increased risk of contracting cancer in litigation concerning a previous injury from the same exposure. PC Br. 33-34; OC Br. 19, 21-22. The relevance of these observations in the present case is limited; as shown earlier in this Brief, plaintiffs in asbestosis cases generally cannot establish that their risk of contracting an asbestos-related cancer exceeds fifty percent, and thus cannot satisfy the Texas requirement that they prove their damages for increased risk of cancer “within reasonable medical probability.” It would be unreasonable to assume that plaintiffs who have asserted claims for non-malignant asbestos-related injury have received any compensation, by trial or by settlement, for increased risk of cancer.

Thus, the Court need not develop specific procedures protecting the defendants from the risk of double recovery. To the extent that a defendant in a future case can demonstrate that the plaintiff actually received compensation for the plaintiff’s enhanced risk of cancer in an earlier proceeding, the lower courts, and ultimately this Court, can consider the appropriate relief at that time.

E.The Court Should Not Define the Extent of a Plaintiff’s Ability To Seek Punitive Damages.

Respondents’ concern that plaintiffs who successfully assert separate claims based on the same toxic exposure might recover more than one award of punitive damages from the same defendant is similarly premature. No Respondent in this case has paid punitive damages to the Pustejovskys, or has even been subjected to a previous punitive damages claim by them. In the event that, in the future, a Texas plaintiff who has recovered punitive damages from a defendant based on a toxic exposure develops a subsequent injury from the exposure and asserts another punitive damages claim against the defendant, the preclusive effect of the first award can be determined then. No other court considering application of the separate injury rule has found it necessary or desirable to decide this issue, and this Court need not consider the hypothetical at this time.


In most cases in which the Court grants review, the Court’s decision engenders additional issues that require further exploration and exposition. This case is no different. The Court need not and should not anticipate and decide all of the penumbral issues of this case now. It should decide only the accrual and limitations issues raised by the facts and considered by the courts below, and do what Texas law and justice requires: reverse the judgment of the court of appeals and remand the case to the trial court for disposition on the merits.

  1. OC Br. 5, citing Barr v Resolution Trust Corp., 837 S.W.2d 627, 630 (Tex. 1992).
  2. OC Br. 5, citing First Title Co. v. Garrett, 860 S.W.2d 74, 78 (Tex. 1993) and Stewart Title Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991).
  3. OC Br. 5, citing Iley v. Hughes, 311 S.W.2d 648 (Tex. 1958) and Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 20 (Tex. 1994).
  4. Mr. Pustejovsky was represented by other counsel in his claim against Johns-Manville. CR 111.
  5. Petitioner does not suggest that a plaintiff who has executed a settlement agreement explicitly releasing all claims for all future injuries, known and unknown, against the settling defendant may nonetheless assert a subsequent claim against the defendant arising from the same exposure that formed the basis of the settlement.
  6. Owens Corning raises the spectre of “thousands of plaintiffs who never worked or lived in Texas” flocking to Texas to file claims for claims for asbestos-related cancer. Owens Corning should find comfort in the Court’s decision this morning in Owens Corning v. Carter, No. 97-1162 (Tex. July 1, 1999) upholding the Texas forum non conveniens legislation and borrowing statute passed in 1997, should alleviate Owens Corning’s concern. In any event, Texas’ forum non conveniens and choice of law rules should not deter the Court from adopting accrual rules that are fair to Texas workers like Mr. Pustejovsky.
  7. The five cases not involving asbestos are Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315, 320 (5th Cir. 1986) (chemical dripolene), Anderson v. Sybron Corp., 353 S.E.2d 816 (Ga. Ct. App.), aff’d, 310 S.E.2d 232 (Ga. 1983) (ethylene oxide), Brumfield v. Avondale Indus., Inc., 674 So.2d 1159 (La. Ct. App. 1996) (silica), Ayers v. Township of Jackson, 525 A.2d 287 (N.J. 1987) (various chemicals from toxic dump; future effects unknown), and Golod v. Hoffman LaRoche, 964 F.Supp. 841 (S.D.N.Y. 1997) (prescription drug Tegison).
  8. Pittsburgh Corning accuses Mr. Pustejovsky of a lack of diligence in suing only Johns-Manville and not other manufacturers of asbestos products in his 1982 suit for asbestosis, and implies that had he joined all manufacturers in that suit, he would have been adequately compensated for his future cancer in that suit. Pittsburgh Corning Br. 22. The implication is unfounded. As the sole defendant, Johns-Manville was jointly and severally liable for Mr. Pustejovsky’s recoverable damages; additional defendants would have decreased Johns-Manville’s liability but not necessarily increased Mr. Pustejovsky’s total recovery. The only real impediment to Mr. Pustejovsky’s ability to obtain adequate compensation for his existing and future asbestos-related injuries at the time of the first suit was the fact that the most serious asbestos-related injury — his mesothelioma — had not yet developed.
  9. See, e.g., Wilson v. Johns Manville Sales Corp., 684 F.2d 111, 117 n. 33 (D.C. Cir. 1982) (“Johns-Manville concedes that asbestosis and mesothelioma are separate and distinct diseases”); Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517, 522 (Fla. Ct. App. 1985) (“The parties agree that asbestosis and cancer are distinct and separate diseases which emanate from the same cause — exposure to asbestos”); Larson v. Johns-Manville Sales Corp., 399 N.W.2d 1, 7 n.6 (Mich. 1986) (“Appellees [nine companies, including Pittsburgh Corning] do not contest the fact that asbestosis and cancers caused by exposure to asbestos are independent diseases”). Amicus Curiae Product Liability Advisory Council, Inc. (“PLAC”) agrees that mesothelioma and asbestosis are “truly distinct.” PLAC Br. 5.
  10. See, e.g., Wilber v. Owens-Corning Fiberglas Corp., 476 N.W.2d 74, 75 (Iowa 1991) (“Asbestosis and mesothelioma are separate and distinct diseases.”); Devlin v. Johns-Manville Corp., 495 A.2d 495, 501 (N.J. Super. Ct. 1985) (“this court holds that asbestosis and asbestos related cancer are separate and distinct disease processes”); Potts v. Celotex Corp., 796 S.W.2d 678, 679 (Tenn. 1990) (“According to the medical evidence in this case, asbestosis and mesothelioma are two independent, distinct and separate diseases”).
  11. For examples of cases in which the court determined as a matter of law that the injuries claimed were not separate and did not support a separate cause of action, see Kemp v. G.D. Searle & Co., 103 F.3d 405, 410 (5th Cir. 1997) and Griffin v. Garratt-Callahan Co., 74 F.3d 36, 40 (2d Cir. 1996).
  12. Owens Corning’s reliance on Cleveland v. Johns-Manville Corp., 690 A.2d 1146 (Pa. 1997) is misplaced. In that case, the court found that retroactive application of its previous decision in Simmons prohibiting plaintiffs from recovering “risk of cancer” and “fear of cancer” damages would require reversal of a large number of pending judgments. Adoption of a “separate injury rule” would not cause similar disruption. Plaintiffs generally cannot recover “risk of cancer” damages in asbestosis cases in Texas, and adoption of the “separate injury rule” should not deprive asbestosis plaintiffs from recovering damages for their present fear of contracting cancer.
  13. To the extent that a defendant in a “subsequent injury” case could establish that the plaintiff previously claimed and received damages representing the plaintiff’s risk of contracting cancer (not the plaintiff’s fear of cancer), the court in the later case could award the defendants a set-off to prevent any chance of a double recovery.
  14. It is not implausible to conceive of a worker who develops first an asbestos wart shortly after exposure, then asbestosis, and then cancer. The worker should be permitted to sue separately for each injury. This result is preferable than that produced under Respondents’ view of accrual, which would bar the worker’s claim for cancer because of the appearance of a wart years earlier.
  15. For this reason, the Pennsylvania Supreme Courtwas simply wrong to conclude that allowing recovery for fear of cancer is “inequitable” because “those who never contract cancer would obtain damages even though the disease never came into fruition.” Simmons v. Pacor, Inc., 674 A.2d 232, 238 (Pa. 1996).