Daley v. A.W. Chesterton, Inc.

OPINION

In this appeal by allowance, we consider whether the separate disease rule, which also has been referred to as the “two-disease” rule, allows an individual to bring separate lawsuits for more than one malignant disease which allegedly resulted from the same asbestos exposure. We conclude that it does, and, accordingly, affirm the order of the Superior Court, which reversed the trial court’s grant of summary judgment in favor of U.S. Supply Co. (“U.S. Supply”) and Duro-Dyne Corp. (“Duro-Dyne”) (collectively, “Appellants”).1

In 1989, Appellee Herbert L. Daley was diagnosed with pulmonary asbestosis2 and squamous-cell carcinoma of the right lung.3 In October 1990, Daley and his wife (collectively, “Appellees”) filed a personal injury action (the “1990 Action”) against several defendants seeking compensatory damages for work-related pulmonary asbestosis and lung cancer. Neither of the appellants in the instant case was a named defendant in the 1990 Action. Appellees settled the claims raised in the 1990 Action in 1994.

During the summer of 2005, Daley was diagnosed with malignant pleural mesothe-lioma.4 On October 24, 2005, Appellees *1178filed suit against U.S. Supply, Duro-Dyne, A.W. Chesterton (“Chesterton”), and eleven other defendants. Appellees alleged in their complaint that Daley’s mesothelioma was caused by the same asbestos exposure that resulted in his lung cancer and pulmonary asbestosis, for which he sought and obtained compensation in 1990. U.S. Supply, Duro-Dyne, and Chesterton filed motions for summary judgment, contending that, because Daley previously filed an action for a malignant asbestos-related condition in 1990, Pennsylvania’s “two-disease” rule did not allow him to file an action for a second malignant asbestos-related disease — herein, mesothelioma — in 2005.5 In addition, the companies argued that, at the time of the 1990 Action, Pennsylvania had not yet adopted the two-disease rule, and, therefore, the requirements of Pennsylvania’s single cause of action rule applied, such that Appellees’ 2005 Action for mesothelioma was barred by the two-year statute of limitations.6

By separate orders dated September 11, 2006, the trial court granted the motions for summary judgment. In so doing, the trial court acknowledged that the Pennsylvania Superior Court, in Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992) (en banc), adopted, for purposes of asbestos litigation, a “two-disease” rule, allowing plaintiffs “to bring one action based on a nonmalignant asbestos disease and a subsequent action for any separately diagnosed malignant disease.” Trial Court Opinion, 1/8/07, at 3. The trial court further noted that, in Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996), and McNeil v. Owens-Corning Fiberglas Corp., 545 Pa. 209, 680 A.2d 1145 (1996), this Court determined that “malignant and nonmalignant asbestos-related injuries constitute separate claims.” Trial Court Opinion, 1/8/07, at 3.

However, relying on the Superior Court’s refusal to allow a plaintiff to bring more than one claim for symptomatic nonmalignant asbestos disease in Bowe v. Allied, Signal Inc., 806 A.2d 435 (Pa.Super.2002), and Gatling v. Eaton Corp., 807 A.2d 283 (Pa.Super.2002), the trial court concluded “the two-disease rule, as adopted by Pennsylvania courts, permits a plaintiff to bring only one cause of action for nonmalignant diseases caused by asbestos exposure and then only one subsequent action for malignant diseases caused by that same asbestos exposure.” Trial Court Opinion, 1/8/07, at 4-5 (emphasis original). As Appellees previously filed an action for the malignant disease of lung cancer, the trial court held they were precluded from bringing a subsequent action for the malignant disease of mesothelioma.

Appellees appealed to the Superior Court, which, in a unanimous published opinion authored by Judge Susan Peikes Gantman, vacated the trial court’s orders granting summary judgment. The Superi- or Court concluded the trial court had misapplied the law by adopting an “unduly restrictive” interpretation of Marinari, and stated:

*1179Although Pennsylvania case law frequently uses the nomenclature, “two-disease” rule, Marinari specifically stated it was adopting a “separate disease” rule in asbestos exposure actions, to do away with recovery of speculative damages, while preserving a plaintiffs right to recover for more than one asbestos-related disease, if a separate disease developed.

Daley v. A.W. Chesterton, 971 A.2d 1258, 1265 (Pa.Super.2009).

The Superior Court further stated: “[w]e see nothing in Marinari to limit [Daley]” to one cause of action for a malignant asbestos-related disease and one cause of action for a nonmalignant asbestos-related disease, and opined “Marinari permits separate causes of action for distinct diseases due to asbestos exposure.” Id. at 1265. The Superior Court determined that mesothelioma is a “separate and distinct disease from, and not the natural, predictable progression of, squamous-cell carcinoma,” and, therefore, Daley’s diagnosis of mesothelioma in 2005 gave rise to a separate cause of action with a new statute of limitations. Id. at 1264.

Following the denial of their petition for reargument en banc before the Superior Court, U.S. Supply, Duro-Dyne, and Chesterton filed petitions for allowance of appeal with this Court. On May 11, 2010, this Court ordered the matters consolidated and granted review of the following issue: “Did the Superior Court err by permitting suits for more than one malignant disease resulting from the same asbestos exposure under the two-disease rule?” Daley v. A.W. Chesterton, Inc., 606 Pa. 42, 994 A.2d 1078 (2010) (order); Daley v. A.W. Chesterton, Inc., 606 Pa. 43, 994 A.2d 1079 (2010) (order).

Our standard of review of an order granting or denying a motion for summary judgment is well established:

We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Our scope of review of a trial court’s order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or abused its discretion.

Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001) (citations omitted).

In arguing the Superior Court erred in reversing the trial court’s grant of summary judgment in the instant case, Appellants contend Marinari created “a limited exception to the unitary cause of action requirement for asbestos litigation” by adopting a “two-disease” rule. Appellants’ Brief at 13. Appellants maintain that “[t]he classification of asbestos-related diseases into nonmalignant and malignant categories is at the core of [that rule].” Id. at 14. According to Appellants, Mari-nari “permit[s] one suit for a nonmalignant disease and a [single] separate later action for cancer.” Id. at 15. To the extent the Superior Court held, in the instant case, that Marinari does not limit a plaintiff to one suit for a nonmalignant disease and one suit for a malignant disease, Appellants assert that its holding is contrary not only to the Superior Court’s own case law, but also to decisions of this Court.

In support of their position, Appellants rely on the Superior Court’s decisions in Bowe, supra, and Gatling, supra — specifically, on the Superior Court’s statement in *1180Bowe that “the intent of Marinari in creating the ‘two-disease rule’ was to allow for separate actions in asbestos litigation for nonmalignant and malignant diseases,” and its finding that any distinction between pulmonary asbestosis, a disease on the inside of the lung, and pleural thickening, a disease on the outside of the lung, was irrelevant, as both diseases are nonmalignant. 806 A.2d at 441. In addition, Appellants note that, in Gatling, the Superior Court rejected the plaintiffs argument that, because he had two separate diseases, there were two separate and distinct causes of action, as “pleural asbestosis and pulmonary asbestosis are both nonmalignant diseases.... The two disease rule recognizes separate actions for nonmalignant and malignant diseases.” 807 A.2d at 288 (emphasis original).

According to Appellants, the Superior Court’s decisions in Bowe and Gatling demonstrate (1) that Marinari’s “two-disease” rule permits one action for a malignant disease and one action for a nonmalignant disease, but not “successive lawsuits when both diseases fall within the same category”; and (2) that “[wjhen both injuries fall within the same category of disease,” whether one disease is “separate and distinct” from another is irrelevant. Appellants’ Brief at 20.

As additional support for their interpretation of Marinari, Appellants rely on language from this Court’s decisions in Simmons, supra, and Abrams, supra. Specifically, Appellants note that this Court held in Simmons:

Marinari. ... permit[s] a plaintiff to commence separate causes of action for separate asbestos related diseases, i.e., one for a nonmalignant asbestos related disease which had become manifest and another cause of action for the subsequent development of a separate malignant disease such as lung cancer or mesothelioma.

Simmons, 543 Pa. at 674-75, 674 A.2d at 237 (emphasis added).

Appellants further highlight that, in Abrams, this Court referred to the separate disease rule as a “two-disease” rule, which, according to Appellants, evinces our intent to adopt the Superior Court’s holding in Marinari only to the extent it permits a plaintiff to commence one suit for a nonmalignant asbestos-related disease and a second suit for a malignant asbestos-related disease.7 Appellants’ Brief at 18. Appellants concede this Court’s decisions in Simmons and Abrams did not involve lawsuits for successive malignant diseases, as does the case sub judice, but maintain “this does not change the outcome because the two-disease rule recognized and endorsed by this Court leaves no doubt that the asbestos-related malignancy for which a plaintiff can seek recovery is lung cancer or mesothelioma, but not both.” Appellants’ Brief at 18-19 (emphasis original).

Finally, Appellants argue that the Superior Court’s interpretation of Marinari is rife with practical difficulties. Appellants contend that, in allowing plaintiffs to bring more than one lawsuit for asbestos-related diseases of the same category, the judicial system will be burdened with piece-meal litigation.8 Indeed, Appellants suggest *1181that residents of other states will seek to benefit by the “expansion” of the two-disease rule by filing suit in Pennsylvania. Appellants further aver that allowing a plaintiff to bring separate lawsuits for separate malignant diseases, such as lung cancer and mesothelioma, will make the determination of an appropriate award of damages more difficult due to an “inability to segregate” the damages for each of the separate diseases. Appellants’ Brief at 24. Appellants also argue that allowing separate actions for injuries “in the same disease category” conflicts with principles of res judicata. Id. at 25.

Appellees, conversely, challenge Appellants’ interpretation of Marinari, arguing:

Marinari did not hold, as [Appellants] argue in their brief, that an asbestos victim is entitled to file one action for a non-cancerous asbestos condition, and one action for a cancerous asbestos condition. Instead, Marinari held that an asbestos victim is not limited to one lawsuit for all potential consequences of his asbestos exposure, but rather is entitled to file a second lawsuit if he develops a distinct and separate asbestos disease. There is no statement in the Marinari decision that an asbestos plaintiff is prohibited from filing a second action for a second separate and distinct malignancy.

Appellees’ Brief at 10-11. Appellees emphasize the Marinari court’s pronouncement that “[w]e today join a majority of jurisdictions ... by holding that an asbestos plaintiff may assert, in a second lawsuit, a claim for a distinct, separate disease, if and when it develops at a later time.” Marinari, 612 A.2d at 1028 (emphasis added).

Appellees further contend that the cases cited by Appellants for the proposition that Marinari intended to allow a single cause of action for a nonmalignant asbestos-related disease and a single cause of action for a malignant asbestos-related disease are inapplicable, in that those cases “do not involve the fact circumstance where an asbestos plaintiff contracts a second asbestos-related malignancy.” Appellees’ Brief at 15. Instead, Appellees offer the Superi- or Court’s decision in McCauley v. Owens-Corning Fiberglas Corp., 715 A.2d 1125 (Pa.Super.1998), as support for interpreting Marinari as allowing separate causes of action for separate and distinct asbestos-related diseases. In McCauley, the court held the'plaintiff was not precluded from filing a cause of action for nonmalignant symptomatic pulmonary asbestosis in 1992, despite having failed to file an action for asymptomatic nonmalignant pleural thickening in 1985 (of which the plaintiff was aware at the time), because McCau-ley’s pulmonary asbestosis could “arguably be considered part of a separate and distinct disease which triggered the statute of limitations on a second action.” 715 A.2d at 1131.

Appellees also reject the assertion that the Superior Court’s decision below, if affirmed, will result in increased litigation, and emphasize they are not suggesting that a plaintiff should be permitted to bring an “endless amount of actions.” Ap-pellees’ Brief at 17. Rather, they contend:

[consistent with Marinari, asbestos victims should be limited to two lawsuits or two causes of action. In the case at bar, Mr. Daley has had only one prior action, and in his first action he recovered com*1182pensation for his pulmonary asbestosis and lung cancer. He has now filed a second action for an entirely different asbestos disease, that is, malignant mesothelioma. This does not present a third action on the part of Mr. Daley, and the plaintiff is not arguing that asbestos victims should be permitted to file more than two causes of action.

7&9 Finally, Appellees dispute Appellants’ contention that the Superior Court’s decision below, if left to stand, will promote overcompensation or duplicative damages, or that it conflicts with principles of res judicata.

As reflected above, Appellants’ interpretation of the Superior Court’s holdings in Marinan, Bowe, and Gatling, and of this Court’s opinions in Simmons and Abrams, is based on specific verbiage excerpted from those opinions. Although the particular language on which Appellants rely could, when read in isolation, be viewed as limiting a plaintiff to one cause of action for a malignant asbestos-related disease and one cause of action for a nonmalignant asbestos-related disease, it is apparent from a careful reading of those decisions that their underlying rationale does not favor such a limitation.

Prior to 1992, a plaintiff seeking damages in Pennsylvania for injuries resulting from exposure to asbestos or asbestos-containing products was required to file a single cause of action for all present and future harm within two years10 of the initial diagnosis of any asbestos-related condition. This rule emanated from the Superior Court’s decision in Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) (en banc), wherein the court held that a plaintiffs claim for pleural thickening, which was filed within two years of the diagnosis thereof, but more than two years after the plaintiff was initially diagnosed with asbestosis, was time-barred under 42 Pa.C.SA. § 5524(2). The Superior Court in Cathcart conceded there are differences between pleural thickening and asbestosis, but nevertheless concluded that a second injury or separate complication arising from an original tortious act did not give rise to a separate cause of action. Id. at 507. Thus, under Cathcart, a plaintiff had the substantial burden of establishing all future harm that might *1183result from the contraction of an asbestos-related disease.

In 1992, however, the law in Pennsylvania with respect to recovery for asbestos-related injuries underwent a sea change. The Superior Court in Marinari acknowledged that the rule established in Cath-cart, “which has generally proven fair and workable in the context of actions for personal injury, has given rise to an unworkable process and a potential for unfair results in the context of asbestos litigation.” Marinari, 612 A.2d at 1023. The plaintiff in Marinari was diagnosed in 1983 with pleural thickening, but, because he was not experiencing breathing problems, did not file a lawsuit at that time. After he was diagnosed with asbestos-related lung cancer in 1987, Marinari commenced an action against several companies seeking damages for his cancer-related injuries. The trial court granted the defendants’ motions for summary judgment on the basis that the two-year statute of limitations for Marinari’s action began to run in 1983, when he was first diagnosed with pleural thickening, and that Marinari’s 1987 action was, therefore, untimely.

On appeal, an en banc panel of the Superior Court reversed the trial court’s grant of summary judgment, holding that a plaintiffs knowledge of a nonmalignant, asbestos-related lung condition did not trigger the statute of limitations with regard to an action for a later, separately-diagnosed disease of lung cancer. In so doing, the court reasoned:

Those jurisdictions which permit more than one action for separate asbestos related injuries have done so in recognition that asbestos exposure does not result in only one disease. The damage to the human body which may result from asbestos exposure does not occur as a seamless progression of a single pathology. Instead, exposure to asbestos may result in a variety of benign and malignant conditions, each of which may occur at widely divergent times.... One or more [diseases] may occur in any one person at various times because of differing and often prolonged periods between exposure and manifestation of the disease. Thus, the diseases may be discovered at very different points in time.

The problem in the context of asbestos litigation arises when ... the first manifestation of asbestos exposure is asymptomatic pleural thickening. In the presence of such a subclinical condition, plaintiffs are able to lead normal lives, remaining active with no pain or suffering and without any loss of the use of an organ or disfigurement. Mild or asymptomatic pleural thickening, therefore, may not call for an award of compensatory damages. Nevertheless, plaintiffs in Pennsylvania, once informed of pleural thickening, have been required to act within the period of the applicable statute of limitations to make a claim for an asymptomatic condition and also for any and all predictable later diseases and/or injuries related to asbestos exposure.

Marinari, 612 A.2d at 1024-25 (emphasis added, citations and footnote omitted).

The Marinari court also recognized that “the strict single action doctrine was relaxed as early as 1982,” id. at 1025, by the United States Court of Appeals for the District of Columbia in Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C.Cir.1982), and quoted the Wilson court’s opinion at length. In that case, Wilson, who for years was employed as an insulation worker at construction sites, had been diagnosed with “mild asbestosis” in 1973. Although his health rapidly deteriorated after his diagnosis, he took no legal action against the manufacturers of the asbestos products which he regularly han-*1184died during his employment. In 1978, Wilson was diagnosed with mesothelioma and died within several months of his diagnosis. Less than one year after his death, Wilson’s widow filed a diversity action against several defendants, alleging their products were the cause of her husband’s injuries and death.

Defendant Johns-Manville filed a motion for summary judgment, asserting that Wilson had one cause of action for all past, present, and future injuries, and that the cause of action accrued, at the latest, in 1973, when Wilson was diagnosed with asbestosis. The trial court granted the motion and dismissed the complaint. On appeal, the court of appeals reversed, holding that a plaintiffs diagnosis of asbestosis did not necessarily trigger the running of the statute of limitations on all separate and later manifested diseases, such as malignant mesothelioma, which had been caused by the same asbestos exposure.

In reaching its holding, the Wilson court recognized a defendant’s interest in repose;11 nonetheless, the court found “a potential defendant’s interest in repose is counterbalanced and outweighed by other factors, including evidentiary considerations, securing fair compensation for serious harm, and deterring uneconomical anticipatory lawsuits.” Id. at 120.

With respect to its concern for judicial economy, the court explained:

Upon diagnosis of an initial illness, such as asbestosis, the injured party may not need or desire judicial relief. Other sources, such as workers’ compensation or private insurance, may provide adequate recompense for the initial ailment. If no further disease ensues, the injured party would have no cause to litigate. However, if such a person is told that another, more serious disease may manifest itself later on, and that a remedy in a court will be barred unless an anticipatory action is filed currently, there will be a powerful incentive to go to court, for the consequence of a wait-and-see approach to the commencement of litigation may be too severe to risk. Moreover, a plaintiffs representative in such a case may be motivated to protract and delay once in court so that the full story of his client’s condition will be known before the case is set for trial.

Wilson, 684 F.2d at 120.

The Mannari court also considered that other jurisdictions “have recognized the likelihood of unfairly excessive or inadequate compensation because of the inherently speculative nature of the evidence employed to prove the possibility of future disease,” finding the following reasoning by a Florida appellate court particularly persuasive:

The speculative nature of the prediction of future damages — that a person with asbestosis will someday contract cancer — may lead to several inequitable results. First, the plaintiff who does not contract cancer gets a windfall — cancer damages without cancer. Second, and perhaps worse, an asbestosis plaintiff who is unsuccessful in his efforts to recover risk of cancer damages, but later contracts cancer, has the disease but no damages. Third, even plaintiffs who later contract cancer and who have recovered some amount of risk of cancer damages may emerge with an inequitable award, since the jury, cognizant of the less than one hundred percent chance *1185that the plaintiff will contract cancer, likely will have awarded less than one hundred percent damages. Finally, inequitable awards are more likely to result from a future damages action simply because the damages cannot be known. If the disease has advanced — or even come into existence — the actual financial needs of the plaintiff can obviously be more accurately assessed.

Marinari, 612 A.2d at 1026-27 (quoting Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517, 524 (Fla.Dist.Ct.App.1985)) (footnote and citations omitted).

After considering the decisions in Wilson and Eagle-Picher, and recognizing the purpose behind the traditional single action rule, which includes preventing delay, limiting expenses, and promoting finality and judicial economy, the Marinari court ultimately concluded:

The adjudicative process must ultimately serve the principle that a fair and just resolution of disputes depends upon a search for truth, based on factual, non-speculative evidence (the integrity of the process). Litigation by an injured citizen against another citizen must result in a recovery of adequate compensation by the one and payment by the other of no more than fair and just compensation (the fairness of the result). In latent disease cases, such as the instant case, these principles of fair adjudication are not well served by [the rule that all claims against a defendant arising from a single transaction or occurrence must be asserted in a single action].

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In order to accomplish just results in the resolution of claims for latent asbestos diseases, the rigid rules designed to limit plaintiffs to a single lawsuit must yield. Therefore, today we join a majority of jurisdictions which have responded to this difficult issue by holding that an asbestos plaintiff may assert, in a second lawsuit, a claim for a distinct, separate disease if and when it develops at a later time.

612 A.2d at 1027-28.

Shortly after its decision in Marinari, the Superior Court, in Giffear v. Johns-Manville Corp., 429 Pa.Super. 827, 682 A.2d 880 (1993), amended its position in Marinari to the extent it had refused to hold, as a matter of law, that asymptomatic pleural thickening was an insufficient injury to support a cause of action. In or around 1980, Giffear was diagnosed with pleural disease, and was told the disease was irreversible and could lead to cancer. Although he was not experiencing any lung impairment, Giffear filed an action seeking recovery for risk and fear of cancer, mental anguish, and loss of life’s pleasures. Following a jury verdict in favor of Giffear, the trial court granted judgment notwithstanding the verdict in favor of the defendants, concluding that asymptomatic pleural thickening was not a cognizable cause of action. Giffear appealed to the Superior Court, which affirmed,12 holding “asymptomatic pleural thickening does not constitute an injury sufficient to bring about a legal cause of action.” 632 A.2d at 886. The Giffear court stressed, however, that its holding “in no way abolishes the need for the two disease rule,” as its holding applied “only to pleural thickening not accompanied by physical symptoms.... Any [later] recovery awarded for ... symptomatic pleural thickening would not preclude a later action if cancer were to develop as a result of the asbestos exposure.” Id. at 888 (emphasis original). The plaintiffs in Giffear appealed, and we consid*1186ered their argument in the consolidated case of Simmons.13

In affirming the Superior Court’s decision in Giffear, we stated:

[W]e agree that asymptomatic pleural thickening is not a compensable injury which gives rise to a cause of action. We reach this conclusion not only because we find that no physical injury has been established that necessitates the awarding of damages, but also because, pursuant to Marinari, Appellants are not precluded from subsequently commencing an action for an asbestos related injury when symptoms develop and physiological impairment begins.

543 Pa. at 674, 674 A.2d at 237 (citation and footnote omitted). In Simmons, we also adopted the holding in Marinan:

Prior to Marinari, a single cause of action for all present and future harm as a result of an asbestos related disease accrued at the time when the first signs of the disease were discovered. Thus, to prevent the asbestos claim from being precluded by the statute of limitations, the plaintiff faced the arduous task of having to establish all future harm that may result from the contraction of the asbestos related disease. Although such a rule was workable in a routine personal injury case, it did not bring about just results in cases involving latent diseases which do not surface until years after the initial exposure.

Marinan remedied this situation by permitting a plaintiff to commence separate causes of action for separate asbestos related diseases, i.e., one for a nonmalignant asbestos related disease which had become manifest and another cause of action for the subsequent development of a separate malignant disease such as lung cancer or mesothelioma.

543 Pa. at 674-75, 674 A.2d at 237; see also Abrams, 602 Pa. at 639, 981 A.2d at 205 (noting that, in Simmons, we “implicitly adopted” Marinari’s separate disease rule, but modified it in several respects).14

Following this Court’s decision in Simmons, the Superior Court addressed the separate disease rule on at least three other occasions. As discussed above, in McCauley, the court held the plaintiff was not precluded from filing a cause of action for nonmalignant symptomatic pulmonary asbestosis in 1992, despite having failed to file an action for asymptomatic nonmalignant pleural thickening in 1985 (of which the plaintiff was aware at the time), because McCauley’s pulmonary asbestosis could “arguably be considered part of a separate and distinct disease which triggered the statute of limitations on a second action.” 715 A.2d at 1131.

In Bowe, one of the plaintiffs, Bruce Mann, filed suit for nonmalignant asbestos-related pulmonary disease. Mann previously had been diagnosed with nonmalignant asbestos-related pleural thickening, but did not file suit on the basis of that diagnosis. The trial court granted summary judgment in favor of the defendant on the ground that Mann’s lawsuit was filed outside the statute of limitations, which began to run when Mann was first diagnosed with pleural thickening. On appeal, Mann argued that pulmonary asbestosis is a separate disease from pleural thickening, thus giving rise to a separate cause of action and a new statute of limita*1187tions. In rejecting his argument, the Superior Court opined, “the intent of Mari-nan in creating the ‘two-disease rule’ was to allow for separate actions in asbestos litigation for nonmalignant and malignant diseases,” and stated:

Pulmonary asbestosis is a nonmalignant disease, as is pleural thickening.... While in some cases these may be separate diseases, both are nonmalignant diseases. In his deposition testimony, Mann makes much of the distinction between the damage being on the inside or on the outside of his lungs.... Such distinction is irrelevant as both diseases, and their corresponding manifestations, are nonmalignant.