Two-disease Rule No More: Pennsylvania Allows Multiple Malignancy Claims

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In a decision that impacts all asbestos defendants, the Pennsylvania Supreme Court held that the so-called "two-disease" rule allows plaintiffs in asbestos cases to file multiple malignancy claims. The state Supreme Court affirmed the Pennsylvania Superior Court's decision in Daley v. A.W. Chesterton, Inc., et al., that the plaintiff could bring a claim for mesothelioma 15 years after his prior lawsuit for lung cancer and asbestosis. Prior to the Daley decision, it was generally understood that plaintiffs in Pennsylvania were limited to one non-malignancy claim and one malignancy claim.

Pennsylvania is now a "separate disease" state, and plaintiffs may bring separate causes of action for separate and distinguishable malignant diseases allegedly caused by the same asbestos exposure. Each separate malignant disease gives rise to a new cause of action with a new statute of limitations. The court indicated in a footnote that this ruling does not address whether there can be more than one cause of action for separate and distinct nonmalignant asbestos-related diseases.

The plaintiff bears the burden to demonstrate that a malignant disease is "separate and distinct" from another malignant disease. The court identified the following factors for consideration, including evidence that the diseases "developed by different mechanisms; originated in different tissues or organs; affected different tissue or organs; manifested themselves at different times and by different symptoms; progressed at different rates; and carried different outcomes."

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