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Appeals :: 2000–2002 :: Robert Wagner v. Apex Marine :: Footnotes

Footnotes:
Robert Wagner v Apex Marine Ship Management Corporation et al.

¹Respondents note that Central Gulf Lines, Inc. was not served until December 1998, and so did not join in this demurrer.

²According to appellant, the first amended complaint incorrectly states that he was diagnosed with asbestosis in 1997, when it was actually diagnosed in 1998, as alleged in the earlier complaints. This discrepancy makes no legal difference in the resolution of the question before us.

³Appellant “concedes that any damage claims arising from his asbestos–related pleural disease are time barred as to respondents . . .”

⁴Appellant asks that we take judicial notice of excerpts from three medical texts, pursuant to Evidence Code sections 452 and 459. Since we must accept as true the factual allegations in appellant’s complaint that pleural disease and asbestosis are separate and distinct diseases (see Marshall v. Gibson, Dunn & Crutcher, supra, 37 Cal.App.4th at p. 1403), we deny this request for judicial notice as unnecessary.

⁵In holding that diagnosis of a separate asbestos–related disease will trigger a new statute of limitations, the Wilson court specifically declined to decide whether a prior judgment on a claim for asbestosis would have precluded a subsequent claim based on the mesothelioma diagnosis, since that issue was not properly before it. (Wilson, supra, 684 F.2d at p. 117.)

⁶Some of the relevant cases, including Hagerty v. L & L Marine Services, Inc., supra, 788 F.2d 315, address the question in terms of the permissibility of splitting causes of action for malignant versus non–malignant asbestos–related diseases, undoubtedly because the context in which such cases arise often involves a plaintiff with a non–malignant disease trying to recover for increased risk of cancer. A similar analysis is, however, also generally applicable to the present case, where we are asked to find that the statute of limitations for asbestosis does not begin to run upon the diagnosis of an earlier, less serious disease (pleural disease).

⁷We agree with respondents that two cases cited by appellant in support of his position, Aparicio v. Norfolk & Western Ry. Co. (6th Cir. 1996) 84 F.3d 803, abrogated on other grounds in Reeves v. Sanderson Plumbing Products, Inc. (2000) 120 S.Ct. 2097, and Monaghan v. Union Pacific R. Co. (1993) 496 N.W.2d 895, are not particularly relevant to this case. Although there are some similarities between those cases and the present one, there are also differences that render Aparicio and Monaghan less useful than the cases previously discussed.

⁸We have no reason to decide in this case whether a prior action on a claim for pleural disease would have precluded a later claim based on the asbestosis diagnosis, since that issue is not before us. (See Wilson, supra, 684 F.2d at p. 117.)

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