The opinion of the court was delivered by: RICHEY
A brief summary of the facts which are relevant to these motions is as follows. Joseph Fearson, deceased, was employed as an asbestos insulation installer from 1936 to 1977 in the District of Columbia. In early 1973, Mr. Fearson was informed by a physician that he had "mild asbestosis." On April 9, 1973, plaintiff's attorney filed a claim with the District of Columbia Workers' Compensation Programs (WCP). On November 29, 1976, Mr. Fearson was paid $ 50,000 in settlement of his claim for workmen's compensation benefits for his asbestosis. On November 30, 1977, Mr. Fearson retired, in part because his health had deteriorated as a result of his asbestosis. On March 16, 1979, decedent was admitted to the hospital, complaining of chest pain, and was diagnosed as having bronchogenic carcinoma (lung cancer), and was discharged for chemotherapy treatment. Joseph Fearson died on May 23, 1979, at the age of 57. On May 7, 1980, plaintiff filed her survival and wrongful death actions based upon decedent's death due to bronchogenic carcinoma.
II. STATUTE OF LIMITATIONS
The defendants' first argument is that plaintiff's "survival" claim is time-barred under the law of the District of Columbia, which provides that the general period of limitations is three years. See D.C.Code § 12-301(8) (1973).
Defendants argue that the decedent's claim first accrued in 1973 when he was diagnosed as having asbestosis, even though he was not aware of the future development of lung cancer which was to be diagnosed in 1979. Defendants further argue that their alleged wrongful act gives rise to only one cause of action, and that the plaintiff should not be allowed to "split the tort" and create separate causes of action. This is based on their allegation that
"decedent's cancer is in reality a further maturation of the harm to Mr. Fearson from his exposure to asbestos, which harm just manifested itself not later than 1973 in the form of asbestosis. Consequently, only a single and indivisible cause of action arose from that exposure to asbestos and the time to sue thereon began to run not later than February 12, 1973, when asbestosis was diagnosed."
See Defendants Joint Motion for Summary Judgment, September 15, 1981, p. 18-19.
Plaintiff, on the other hand, argues that the date on which the statute of limitations began to run is the date bronchogenic carcinoma was diagnosed, which was March 16, 1979. She claims that since asbestosis and bronchogenic carcinoma are independent diseases, the fact that Mr. Fearson was diagnosed as having asbestosis in 1973 has no bearing upon plaintiff's causes of action which are based upon injury and death due to bronchogenic carcinoma. The Court agrees.
Under the "discovery rule" which has been applied in both cases of medical malpractice and latent occupational diseases, the statute of limitations begins to run when the plaintiff learned, or in the exercise of reasonable diligence could have learned, that his injuries were caused by defendants' actions. See Grigsby v. Sterling Drug, Inc., 428 F. Supp. 242, 243 (D.D.C.1975), aff'd without opinion, 543 F.2d 417 (D.C.Cir.1976). In Grigsby, the plaintiff suffered a hearing loss due to her use of a drug manufactured by the defendant. In 1968, she knew of her hearing loss, yet she did not file suit until 1974 when the condition had become more severe. The Court held that because she knew of the injury in 1968, the statute began running at that time and therefore the action was barred.
In the instant action, however, the decedent did not know that he had bronchogenic carcinoma until it was diagnosed in 1979. Plaintiff's supporting affidavits make it clear that bronchogenic carcinoma and asbestosis are completely separate and distinct diseases. Under defendants' theory, plaintiffs would be forced to come into Court as soon as any minimal problem is diagnosed and seek speculative damages as to any other injuries that might develop in the future. Plain common sense teaches that the law was never meant to be so unreasonable.
III. SECTION 33(b) OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT
Defendants' second argument is that plaintiff's claims are barred by section 33(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., adopted as the D.C. Workers' Compensation Act, 36 D.C.Code § 501 et seq., which provides that:
acceptance of such compensation under an award in a compensation order filed by the deputy commissioner or Board shall operate as an assignment to the employer of all rights of the person entitled to such compensation to recover damages against such third person unless such person shall commence ...