A 2011 guilty verdict in an asbestos case against Foster Wheeler Corporation was reversed June 26 by a Pennsylvania appeals court. Superior Court Judge Jack A. Penella delivered the opinion that a statute of repose barred the plaintiffs’ claims against the company.
David and Frances Graver filed their lawsuit against six different defendants after Mr. Graver, now deceased, was diagnosed with mesothelioma, a type of cancer primarily caused by asbestos exposure. Mesothelioma has a very low survival rate, and it is difficult to diagnose because of its latent nature and generic symptoms.
Mr. Graver was employed at the Pennsylvania Power and Light’s Holtwood Steam Plant from 1983 until 2010. The lawsuit claimed that Mr. Graver was exposed to the toxin through contact with an asbestos-containing Foster Wheeler boiler.
The Gravers were awarded a combined $4.5 million in December, 2011. This amount was to be divided among the six defendants, leaving Foster Wheeler responsible for $750,000. Both parties appealed the ruling: the plaintiffs because they sought additional compensation; the defendant due to the statute of repose that would preclude the Gravers’ ability to sue. The appeals court agreed with Foster Wheeler.
Statutes of repose bar all lawsuits filed later than 12 years after the completion of the “improvement” – in this case, the Foster Wheeler-branded boiler in question, which was completed in 1955. Therefore, Mr. Graver had until 1967 to file his lawsuit, and did not do so until 2010.
In an effort to prevent the verdict from being reversed, the plaintiffs argued that a statute of limitations was applicable in this case, not a statute of repose, but Judge Panetta disagreed. He differentiated between the two, explaining, “The statute of limitations applies only to those cases arising from alleged exposure to asbestos. On the other hand, the relevant statute of repose has a greater reach and involves all claims against those persons involved in the design, planning, supervision or construction of any improvement to real property.”