Lead Opinion
This appeal asks us to determine whether the trial court erred in granting appellee’s, Harbison Walker’s, motion for
The relevant facts and procedural history of this case are as follows. Appellants instituted this action on December 5,1988 seeking damages for appellant-husband’s physical injuries resulting from asbestos exposure. The complaint named fifty-four defendants, but Harbison Walker was the only remaining defendant at the time of trial. Trial was conductеd in reverse bifurcated form; specifically, the first phase of the trial centered solely on the issue of damages. This phase of the trial, held in December, 1993, with the Honorable Ethan Allen Doty presiding, resulted in a jury verdict of $250,000.00 for appellants.
Appellant-husband was initially exposed to asbestos in 1945 when he worked in the construction industry. Appellant-husband was further exposed to asbestos while working at C.E. Refractories. From 1953 until he retired in 1984, appellant-husband worked for C.E. Refractories as a fork lift operator unloading bags of asbestos.
In March, 1987, appellant-husband was treated by Karen E. Deveney, M.D. for hernia problems. At the time of surgery for appellant-husband’s hernia condition, Dr. Deveney discovered abnormalities on an x-ray of appellant-husband’s chest. Accordingly, Dr. Deveney referred appellant-husband to Michael A. Grippi, M.D., who diagnosed appellant-husband with pleural and parenchymal asbestos related pulmonary disease and asbestosis on June 30, 1987. Appellants filed the complaint which initiated the present action on December 6, 1988. In addition to the asbestosis diagnosis, at the time of trial, in 1993, appellant-husband displayed discernible physical symptoms of asbestosis. Specifically, appellant-husband had severe
The first phase of the reverse bifurcated trial was held in the Asbestos Trial Group 156 in December, 1993, before Judge Doty. During the trial, Judge Doty ruled that appellee’s statute of limitations issue be preserved for disposition at a later date. Judge Doty made it clear in his ruling that the statute of limitations issue could be raised between phases one and two of the trial.
Following a $250,000.00 jury verdict in favor of appellants, on December 27, 1993, appellee filed a motion for post-trial relief. On July 22, 1994, before the court ruled on the post-trial motion, appellee filed a motion for summary judgment. In this motion, appellee alleged that appellants were barred from recovering for appellant-husband’s asbestosis and other asbestos-related injuries because the two-year statute of limitations had run. Oral argument on the summary judgment motion was postponed because appellants contended that the statute of limitations issue was not properly preserved during the first phase of the trial. The Honorable Sandra Mazer Moss requested the trial transcripts in order to determine whether the motion was properly preserved. On August 11, 1994, the trial transcript was submitted to Judge Moss.
At oral argument on August 22, 1994, Judge Moss requested that appellee depose Dr. Grippi. In his deposition, taken on August 29,1994, Dr. Grippi testified that appellant-husband had informed him that appellant-husband had consulted another doctor and was told of abnormalities on his chest x-ray two to three years prior to the visit with Dr. Grippi and that the abnormalities were a result of his asbestos exposure. Prior to the deposition of Dr. Grippi, on November 24, 1993, appellant-husband had been deposed. During that deposition, appellant-husband testified that he had consulted William Gorham, M.D. two or three years before consulting Dr. Grippi. Appellant-husband further testified that he had complained to Dr. Gorham about shortness of breath and had told Dr. Gorham of his asbestos exposure. Appellant-husband also testified that,
Appellants raise the following issues for our review:
1. DID THE CALENDAR JUDGE ERR IN GRANTING SUMMARY JUDGMENT AFTER THE COMMENCEMENT OF TRIAL?
2. DID THE LOWER COURT ERR IN GRANTING SUMMARY JUDGMENT WITHOUT CONSIDERING THE EVIDENCE IN THE LIGHT MOST FAVORABLE TO APPELLANTS, THE NON-MOVING PARTIES?
3. DID THE LOWER COURT ERR IN GRANTING SUMMARY JUDGMENT BASED UPON A DISPUTED STATEMENT, ATTRIBUTED TO MR. WHITE, THAT MR. WHITE HAD KNOWLEDGE OF A NONCOMPENSABLE ASBESTOS-RELATED CONDITION SEVERAL YEARS BEFORE HE FILED SUIT?
4. DID THE LOWER COURT ERR IN IMPOSING A DUTY ON APPELLANT [-HUSBAND] TO INVESTIGATE FURTHER A NON-COMPENSABLE, ASYMPTOMATIC ASBESTOS-RELATED CONDITION, WHEN IT WAS DISPUTED THAT APPELLANT [-HUSBAND] HAD THE REQUISITE KNOWLEDGE OF THE OPERATIVE FACTS, AND ALSO DISPUTED THAT FURTHER INVESTIGATION WOULD HAVE UNCOVERED ANYTHING Other than that which was already KNOWN?
Appellants’ Brief at 1-2.
Initially, we must address appellee’s claims regarding appellants’ violations of the rules of appellate procedure. Appellee
The rules of appellate procedure require an appellant to “serve and file a designation of the parts of the record which he intends to reproduce and a brief statement of issues which he intends to present for review.” Pa.R.App.P. 2154. In the event that an appellant fails to file a designation of reproduced record or brief, an appellee may move for dismissal. Pa.R.App.P. 2188. This Court has held that the rules of appellate procedure are “mandatory, not directing” and it is within our discretion to dismiss an appeal when the rules of appellate procedure are violated. Rappaport v. Stein,
Instantly, appellants’ procedural violations which appellee raises are minor and do not warrant dismissal of this appeal. Our review of the issues presented has not been impeded nor have the parties been prejudiced by the procedural violations.
Appellants essentially contend that the trial court improperly granted appellee’s motion for summary judgment. First, appellants claim that the trial court erred in considering the summary judgment motion after the commencement of the damages phase of trial. We disagree.
Despite the fact that the triál judge must follow specific procedures and standards when ruling on a motion for summary judgment, the trial judge does have some discretion regarding the rules of civil procedure. The rules of civil procedure may be construed in a liberal manner to “secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Pa.R.Civ.P. 126; see also Slaughter v. Allied Heating,
Instantly, Judge Moss was not in error for considering appellee’s motion for summary judgment. Judge Doty expressly preserved the statute of limitations issue for disposition at a later date. It was within Judge Doty’s discretion to preserve this issue because of the complexity of asbestos-related cases.
Because Judge Moss correctly considered appellee’s summary judgment motion, we must now determine whether her granting of the motion was correct. Appellants claim that the trial court failed to consider the evidence in the light most favorable to appellants as the non-moving party and that the trial court erred in relying on the deposition of a witness to grant summary judgment. Further, appellants claim that the trial court ignored the fact that he did not develop a compensable asbestos-related injury more than two years prior to filing his complaint. We agree.
When reviewing a motion for summary judgment, we are required to adhere to the following principles.
First, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, must demonstrate that there exists no genuine, triable issue of fact. Pa.R.C.P. 1035(b). Second, the record must show that the moving party is entitled to judgment as a matter of law. Id. The court must examine the record in the light most favorable to the non-moving party, resolving all doubts against the moving party. Kerns v. Methodist Hosp.,393 Pa.Super. 533 , 536-37,574 A.2d 1068 , 1069 (1990); Knecht v. Citizens & Northern Bank,364 Pa.Super. 370 , 373-74,528 A.2d 203 , 205 (1987). It is fundamental that the moving party’s evidence must clearly exclude any genuine issue of material fact. Aimco Imports v. Industrial Valley Bank, etc.,291 Pa.Super. 233 ,435 A.2d 884 (1981).
Stidham v. Millvale Sportsmen’s Club,
When determining the existence of a genuine issue of material fact, the trial court must adhere to the rule set forth in Nanty-Glo Borough v. American Surety Co.,
In granting appellee’s summary judgment motion, Judge Moss relied upon Dr. Grippi’s deposition testimony and the fact that appellant-husband admitted that he suffered from shortness оf breath more than two years prior to filing his complaint against appellee. In doing so, we conclude that Judge Moss improperly decided a genuine issue of material fact. Despite the fact that appellant-husband suffered from shortness of breath in the early to mid-1980’s and appellants were admittedly aware of this condition, appellants reasonably contend that they did not know and should not have known that appellant-husband’s medical problems were related to asbestos exposure until appellant-husband was first diagnosed with asbestosis and other asbestos-related diseases by Dr.
Dr. Grippi testified that, during his examination of appellant-husband, appellant-husband informed Dr. Grippi that he had been examined a few years earlier by Dr. Gorham. According to Dr. Grippi, appellant-husband told Mm that Dr. Gorham x-rayed appellant-husband, discussed his asbestos exposure with Mm, and raised “compelling questions” regarding appellant-husband’s health. See Trial Court Opinion at 5. Based upon these facts and the x-rays that he had taken of appellant-husband’s chest, Dr. Grippi arrived at his June 30, 1987 diagnosis and opined that appellant-husband had asbestosis in November 1986, more than two years prior to the filing of appellants’ complaint. But, no other non-testimonial evidence supports Dr. Griрpi’s opinion as to when appellant-husband developed asbestosis. More importantly, the certified record contains no non-testimonial evidence whatsoever to indicate that appellants knew or should have known that appellant-husband had asbestosis in November 1986. As discussed infra, appellant-husband’s shortness of breath prior to Dr. Grippi’s June 30, 1987 diagnosis should not have been considered by the trial court in determining whether appellants knew or should have known of Ms asbestos-related medical problems. Therefore, because the credibility of Dr. Grippi and his testimony is a genuine issue of material fact, Judge Moss incorrectly granted appellee’s motion for summary judgment.
The dissent incorrectly relies upon appellant-husband’s shortness of breath and treatment by Dr. Gorham therefore in concluding that Judge Moss properly grantedappellee’s summary judgment motion because of appellant-husband’s failure to exercise due oliligence. In doing so, the dissent calls our attention to the recently decided case of Cochran v. GAF Corp.,
In Baumgart [v. Keene,542 Pa. 194 ,666 A.2d 238 (1995), the Opinion in Support of Reversal sets forth the definition of what constitutes reasonable diligence:
Reasonable diligence is just that, a reasonable effort to discover the cause of an injury under the facts and circumstances present in the case. Long ago we recognized that “[tjhere are few facts which diligence cannot discover, but there must be come reason to awaken inquiry and direct diligence in the channel in which it would be sucсessful.” Deemer v. Weaver,324 Pa. 85 , 90,187 A. 215 , 217 (1936) (quoting Madole v. Miller,276 Pa. 131 , 137,119 A. 829 , 831 (1923)). Reasonable diligence is an objective, rather than a subjective standard. Under this standard, the plaintiffs actions must be evaluated to determine whether he exhibited “those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others.” Burnside v. Abbott Laboratories,351 Pa.Super. 264 , 292,505 A.2d 973 , 988 (1985) (quoting Petri v. Smith,307 Pa.Super. 261 , 271,453 A.2d 342 , 347 (1982)). See also Restatement (Second) of Torts § 283 comment b. Despite the objective nature of the reasonable diligence standard, “[i]t is sufficiently flexible, however, to take into account difference^] between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question.” Burnside,351 Pa.Super. at 292 ,505 A.2d at 988 (quoting Petri,307 Pa.Super. at 271-72 ,453 A.2d at 347 ). Thus, this case law teaches that a plaintiff is not under an absolute duty to discover the cause of his illness. Instead, he must exercise only thе level of diligence that a reasonable man would employ under the facts and circumstances presented in a particular case.
Opinion in Support of Reversal at-,666 A.2d at 244 .
Our case-law further enlightens us on what is reasonable under the facts of a particular case. It is well settled that*21 the statute of limitations is not tolled by mistake or misunderstanding. Pocono Intern. Raceway v. Pocono Produce], 503 Pa. [80] at 84, 468 A.2d [468] at 471 [1983]; Nesbitt v. Erie Coach Co.,416 Pa. 89 , 93,204 A.2d 473 , 475 (1964). Also, a diligent investigation may require one to seek further medical examination as well as competent legal representation. Murray v. Hamot Medical Center,429 Pa.Super. 625 , 634-35,633 A.2d 196 , 201 (1993), appeal denied,540 Pa. 632 ,658 A.2d 796 (1994) (citing Souders v. Atlantic Richfield Co.,746 F.Supp. 570 , 573 (E.D.Pa.1990) citing United States v. Kubrick,444 U.S. 111 , 123,100 S.Ct. 352 , 360,62 L.Ed.2d 259 (1979)).
Id. at —-,
Similarly, in Ingenito v. A.C. & S.,
Essentially, the purpose of the aforementioned principles of law, collectively known as the discovery rule, is to allow an unknowing plaintiff a reasonable amount of time to discover his injury by excluding from the statute of limitations
the determination is for the jury. Smith v. Bell Telephone Co. of Pennsylvania,397 Pa. 134 , 142,153 A.2d 477 , 481 (1959). Specifically, the point at which the complaining*23 party should reasonably be aware that he has suffered an injury is generally an issue of fact to be determined by the jury; only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law. Sadtler v. Jackson-Cross Co.,402 Pa.Super. 492 , 501,587 A.2d 727 , 732 (1991).
Hayward v. Medical Center of Beaver County, supra at 325,
In Cochran v. GAF Corp., supra, the appellant’s deceased husband was diagnosed with and informed that he had lung cancer in June 1981. Similarly, in Ingenito v. A.C. & S., supra, the appellant’s deceased husband was diagnosed with lung cancer and was informed of the diagnosis on June 13, 1984. Despite the fact that the aforementioned decedents knew that they had lung cancer, they did not commence their lawsuits until more than two years after being diagnosed with and informed of their lung cancer. As a result, reasonable minds could not differ in determining that those decedents failed to exercise due diligence in discovering that their lung cancer was caused by their asbestos exposure. Thus, the statute of limitations had expired prior to the initiation of those decedents’ lawsuits. Accordingly, Cochran v. GAF Corp., supra, and Ingenito v. A. C. & S., supra, mandate the use of the discovery rule in asbestos cases where a person who has been exposed to asbestos is diagnosed with lung cancer more than two years prior to initiating his or her lawsuit.
Furthermore, this Court has ruled that in order for an asbestos-related disease to constitute a compensable injury, the plaintiff must have “discernible physical symptoms, a functional impairment or disability.... ” Giffear v. Johns-Manville Corp.,
Instantly, appellant-husband was not diagnosed with lung cancer more than two years prior to initiating this lawsuit. Moreover, nоne of appellant-husband’s medical records contained within the certified record indicate that appellant-husband was diagnosed with any type of asbestos-related disease prior to June 30, 1987. Rather, only the deposition testimony of Dr. Grippi indicates that “compelling questions” regarding appellant-husband’s health may have been raised to appellant-husband by Dr. Gorham in 1984 or 1985. Based on the facts of this- case, we hold that the question of whether appellants, in bringing their lawsuit, exhibited those qualities of “attention, knowledge, intelligence and judgment” which society requires of its members is a matter for the jury’s consideration. Certainly reasonable minds may differ as to whether appellants should have discovered appellant-husband’s asbestos-related disease prior to December 5, 1986.
Based on the foregoing, we reverse the order of the trial court granting appellee’s motion for summary judgment and remand the case for further proceedings consistent with this opinion.
Order reversed; case remanded. Jurisdiction relinquished.
Notes
. Dr. Gorham since died and his records have been destroyed. Thus, it was impossible to obtain a medical report regarding Dr. Gorham’s examination of appellant-husband for trial.
. As this Court has noted previously that “we may only consider the facts which have been duly certified in the record on appeal),]” School District of Aliquippa v. Maryland Casualty Co.,
. The reverse bifurcated trial simplifies the litigation process in asbestos cases. If the plaintiffs are not entitled to damages, there is no need to delve into the complexities of liability. Judge Doty saw no need to delve into the statute of limitations issue before appellants’ damages were determined and, therefore, properly preserved the issue for resolution at a later date.
. As Judge Ford Elliott pointed out in her dissent in Ingenito v. A.C. & S., supra, "it is clear from reviewing numerous discovery rule cases that generally the issue of due diligence is a factual issue for resolution by a jury; it is only the exceptional case which can be decided at the summary judgment stage." Id. at 144,
. According to the dissent, this case is similar to Cochran v. GAF Corp., supra, because appellants’ "diligent pursual of the medical reports and x-rays with solicitation of medical assessment and legal advice as to their significance unquestionably would have disclosed the existence of asbestosis.” (Dissent Opinion at 34). We strenuously disagree with this statement. Appellant-husband stated, at his November 24, 1993 deposition, that he had x-rays taken pursuant to Dr. Gorham’s instructions and was never informed of their results. A reasonably person could readily determine that appellant-husband acted diligently by simply following his doctors instructions and having the x-rays performed, even though appellants made no further inquiry as to the results of the x-rays. It is reasonable to determine that appellant-husband assumed his doctor would contact him if his x-rаys revealed
. If appellant-husband had been diagnosed with lung cancer in 1984 or 1985 by Dr. Gorham, appellant-husband or his wife had been informed of that diagnosis, or medical records further indicated that appellant-husband suffered from another discernable physical symptom, physical impairment, or disability, and was so informed, perhaps the discovery rule would have initiated the statute of limitations period for purposes of appellee's summary judgment motion. See, Cochran v. GAF Corp., supra; Ingenito v. A.C. & S., supra.
Concurrence Opinion
concurring and dissenting.
I concur in the disposition by the majority of the appellees’ motion relating to appellants’ violation of the Rules of Appellate Procedure, Pa.R.A.P. 2154, requiring them to serve and file a designation of the parts of the reсord which they intended to reproduce and a brief statement of issues which he intended to review. The majority correctly states that the rules are “mandatory, not directing”, and it is within our discretion to dismiss an appeal when the Rules of Appellate Procedure are violated. However, the violations are minor and our review of the issues has not been impeded nor have the parties been prejudiced by the violations.
Proceeding in its analysis the majority correctly states principles by which we are bound in reviewing a motion for summary judgment (Majority Opinion, p. 16-17). Despite appellants’ contention, Judge Moss properly considered the motion for summary judgment because, due to the unusual nature of the reverse-bifurcated proceeding, damages are determined before liability and it is illogical and inappropriate, if that system is to function, to rule earlier on the liability issue raised by the motion for summary judgment due to the run on the statute of limitations. The complexity of the
The facts disclosed by the trial court record indicate that following a reverse bifurcated trial and $250,000 jury verdict, Judge Moss requested that appellee depose Dr. Michael Grip-pi. In his deposition taken on August 29, 1994, Grippi stated appellant/husband was told of abnormalities on his chest x-ray two to three years prior to the visit with Dr. Grippi and that the abnormalities were the result of his asbestos exposure (N.T., 8/29/94, p. 11).
The majority, in reversing Judge Mоss, relies on the rule in Nanty-Glo Borough v. American Surety Co.,
The majority concludes that because appellants and appellee dispute when appellant husband became aware of his asbestos related pleural disease, a genuine issue of fact was created. Application of the discovery rule, as in this case, however, is not based upon subjective beliefs by a plaintiff as to when the disease was diagnosed but upon the time wherein a reasonable person exercising due diligence should have known he was suffering an injury from asbestos. Cochran v. GAF Corporation, et al., 542 Pa. 210,
The testimony from Dr. Grippi was to the effect appellant had experienced shortness of breath from 8 to 10 years before being examined and that the shortness of breath and the exрosure to asbestosis precipitated the referral by his treating physician to Dr. Gorham. This referral and examination, including x-rays, took place two to three years before the examination by Dr. Grippi in June of 1987 and more than two years before the complaint was filed in this case on December 5, 1988. During trial, defendants presented the testimony of Dr. Fiel, who testified that during his November 8, 1993 evaluation of Mr. White, Mr. White reported shortness of breath for the last 8 to 10 years. This condition, according to Dr. Fiel’s examination of x-rays and medical history, was asbestos-related and is consistent with the testimony concerning the 1987 evaluation by Dr. Grippi. Appellants’ doctor, in June of 1987, testified that the asbestos-related pulmonary findings ante-dated the abnormal radiographs of March, 1987, by quite some time, and within a reasonable degree of medical certainty Mr. White had asbestosis in November, 1986. Finally, in the testimony of appellant by video deposition and in court at the damage stage of the reverse-bifurcated proceeding, he acknowledged shortness of breath 8 to 10 years before the filing of the complaint.
In that testimony, appellant, in response to a question from counsel as to “how long has your breathing been interfering with the things that you like to do when in your retirement?” replied “About eight years.” In the video deposition presented at the liability stage of the reverse-bifurcated proceeding before Judge Moss, the following testimony was elicited from appellant:
Q: Did you tell him about your being short winded, the first doctor you went to?
A: I guess I did, yeah.
Q: Who was the doctor you went to before Doctor Grippi?
A: Doctor Gorham, William Gorham.
*29 Q: Can you spell that for me?
A: William G-0-R-H-Á-M.
Q: Gorham, okay. And where was Doctor Gorham’s office?
A: Down at 8th Street, but I don’t know his number.
Q: Why were you seeing Doctor Gorham?
A: For pressure.
Q: For your blood pressure?
A: I got a pressure condition, yeah.
Q: Did you tell him about your being short winded?
A: Yeah.
Q: Did he give you an exam for that?
A: He took X rays.
Q: Did he tell you what the results of those X rays were?
A: No, he never told me. He asked me — he never told me anything.
(Deposition of Harvеy Lee White, 11/24/93, pp. 74-75.) Later in the deposition, the following testimony was elicited:
Q: Do you remember Doctor Grippi discussing with you some X rays you had had two or three years before seeing him?
A: Yeah.
Q: Do you remember where you had those X rays?
A: Doctor Gorham had them in Temple Hospital years ago.
Q: Did anybody from Doctor Gorham’s staff or Doctor Gorham himself mention asbestos to you?
A: No.
Q: Did you discuss asbestos?
A: He asked me had I worked around it and I told him yeah. He didn’t say nothing to me about it.
Q: And you and Doctor Gorham discussed your shortness of breath; is that right?
*30 A: Yeah; something like that, yeah. He didn’t — he asked me had I worked around asbestos and I told him yeah. That’s all he told me.
Q: That was after you told him you were short of breath?
A: Yeah.
Q: And then he gave you the X rays; is that right?
A: No. Doctor Gorham still got the X rays. I got X rays from Doctor Grippi.
Q: You didn’t understand me.
And then Doctor Gorham sent you to have X rays; right?
A: Yeah. He sent me to the hospital. The hospital got the X rays.
Q: Which hospital?
A: Pennsylvania, I guess. That’s where he was on staff. I don’t know if he’s still there or not.
Id. at 150-151 (emphasis added).
This testimony of plaintiff unequivocally establishes that he suffered from shortness of breath which resulted in his solicitation of medical evaluation and treatment, which included a medical history, eliciting information of his exposure to asbestos and resulting in x-rays of his lungs by Dr. Gorham. The condition persisted and two years later a further evaluation was conducted by Dr. Grippi. The evidence obtained from appellant’s own testimony clearly establishes the notice required by a party to alert him to the need to file a claim within two years under the discovery rule to avoid being barred from filing a claim under the statute of limitations.
The majority totally ignores appellant’s testimony establishing his shortness of breath and seeking treatment, with knowledge of many years of asbestos exposure, more than two years before he filed a complaint.
The majority incorrectly determines that in granting appellees’ summary judgment motion, Judge Moss relied exclusively upon Dr. Grippi’s testimony to improperly decide a genuine issue of material fact.
It thus becomes apparent that the majority’s reliance on Nanty-Glo is inappropriate as it ignores the exception to Nanty-Glo that permits summary judgment when the plaintiff testifies in such a fashion as to admit the matter at issue thus eliminating the problem of credibility which would have required submission to a jury. As stated in Standard Pennsylvania Practice 2d, § 32:109, Exception for use of nonmovant’s admissions:
§ 32:109. Exception for use of nonmovant’s admissions
Although the Nanty-Glo rule precludes the court’s determination of the credibility of any party’s oral testimony or testimonial affidavit, even that of the opposing party, as the evidential basis for summarily entering judgment, it dоes not preclude reliance on an opposing party’s testimonial admissions. The court may grant the motion when the moving party supports a motion for summary judgment by using the opposing party’s admissions or the admissions of the opposing party’s own witnesses, even though they are testimonial, without considering the credibility of the testimony, for it is an “unconditional surrender” by the opposing party, to which he or she must be held. (Emphasis added.).
See Garcia v. Savage,
The majority’s statement Judge Moss relied entirely on Dr. Grippi’s statements is factually incorrect and belied by her Opinion in which she states:
Plaintiffs’ Complaint alleges Husband was diagnosed with asbestosis on or about 6/30/87, after chest x-rays taken during unrelated surgery revealed pleural abnormalities. In his deposition, however, Husband described an examina*32 tion by a Dr. Gorham “two or three years” prior to his 1987 diagnosis. Husbаnd testified he had complained of shortness of breath, Dr. Gorham inquired whether he had ever worked around asbestos and ordered a chest x-ray when the answer was affirmative. While Dr. Gorham never informed Husband about the x-ray diagnosis Husband never followed up or inquired about his x-ray results (Defendant’s Exhibit 3, pp. 81, 150-151, 162), a duty which the law places upon him. Murray v. Hamot Medical Center,429 Pa.Super. 625 , 634,633 A.2d 196 , 201 (1993).
(Slip Op., Moss, J., 1/13/95, pp. 1-2.) Later in the Opinion, the trial judge reaffirmed the evidence derived from appellant’s statement and concluded he had classic symptoms for which he had sought medical attention before he sought treatment from Dr. Grippi.
Immediately after Husband told Dr. Gorham he had shortness of breath and long-time asbestos exposure the doctor ordered investigatory chest x-rays. In a light most favorable to Plaintiffs this occurred in 1984 or 1985. Shortness of breath is a classic symptom of asbestos-related pleural disease, yet Husband did not bother to obtain his x-ray results or otherwise investigate what caused his breathing impairment until March, 1987, two or three years after the original x-rays were taken.
Id. at 4.
It is conclusive that Judge Moss properly found as a matter of law that applying due diligence, no material fact relating to the time when the asbestosis should have been discovered existed.
The test which has been applied pursuant to the discovery rule has been frequently stated and is now a fixture in the law. Ingenito v. AC & S Inc., supra; Burnside v. Abbott Laboratories,
Reasonable diligence is just that, a reasonable effort to discover the cause of an injury under the facts and circumstance present in the case. Long ago we recognized that “[t]here are few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence.” Deemer v. Weaver,324 Pa. 85 , 90,187 A. 215 , 217 (1936) (quoting Madole v. Miller,276 Pa. 131 , 137,119 A. 829 , 831 (1923)). Reasonable diligence is an objective, rather than a subjective standard. Under this standard, the plaintiffs actions must be evaluated to determine whether he exhibited “those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others.” Burnside v. Abbott Laboratories,351 Pa.Super. 264 , 292,505 A.2d 973 , 988 (1985) (quoting Petri v. Smith,307 Pa.Super. 261 , 271,453 A.2d 342 , 347 (1982)). See also Restatement (Second) of Torts § 283 comment b. Despite the objective nature of the reasonable diligence standard, “[i]t is sufficiently flexible, however, to take into account difference[s] between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question.” Burnside,351 Pa.Super. at 292 ,505 A.2d at 988 (quoting Petri,307 Pa.Super. at 271-72 ,453 A.2d at 347 ). Thus, this case law teaches that a plaintiff is not under an absolute duty to discover the cause of his illness. Instead, he must exercise only the level of diligence that a reasonable man would employ under the facts and circumstances presented in a particular case.
Id. at-,
Our case-law further enlightens us on what is reasonable under the facts of a particular case. It is well settled that*34 the statute of limitations is not tolled by mistake or misunderstanding. Pocono Intern. Raceway [v. Pocono Produce,] 503 Pa. [80] at 84, 468 A.2d [468] 471 [(1983)]; Nesbitt v. Erie Coach Co.,416 Pa. 89 , 93,204 A.2d 473 , 475 (1964). Also, a diligent investigation may require one to seek further medical examination as well as compеtent legal representation. Murray v. Hamot Medical Center,429 Pa.Super. 625 , 634-35,633 A.2d 196 , 201 (1993), appeal denied,540 Pa. 632 ,658 A.2d 796 (1994) (citing Souders v. Atlantic Richfield Co.,746 F.Supp. 570 , 573 (E.D.Pa.1990) citing United States v. Kubrick,444 U.S. 111 , 123 [100 S.Ct. 352 , 360,62 L.Ed.2d 259 ] (1979)).
Cochran, supra at---,
Appellants allege sufficient information was not available to make a determination after the first record of treatment and x-ray examinations in 1985-86, but it was only after the 1987 examinations that appellant-husband was aware his condition was asbestos-related. As in Cochran, in addition to long-time asbestos exposure, appellant had been a heavy user of cigarettes which also might have caused the shortness of breath which was the primary symptom leading to x-ray examination. It is clear from the record there were no more symptoms present at the later examination than at the earlier one and that in both cases the same questions were asked and the same examinations made. It is also evident that the condition, asbestosis, leading to this lawsuit was аs obviously discoverable by the appellant in 1986 as it was in 1988 because its progression was static and present at the earlier time. The facts in this case are very similar to those in Cochran in that, in Cochran, decedent and his survivors chose to believe the cancer diagnosed two years earlier was caused by cigarettes whereas the subsequent examination and death were attributable to asbestos. As in Cochran, diligent pursual of the medical reports and x-rays with solicitation of medical assessment and legal advice as to their significance unquestionably would have disclosed the existence of asbestosis.
It therefore is unassailable that the issue of the legitimacy of a claim for liability for damages was a matter of law to be