Some States Have A “Two Disease” Or “Separate Disease” Rule That Permits The Second Case To Go Forward
The Daley v. A.W. Chesterton opinion which was handed down by the Pennsylvania Supreme Court in 2012 discusses the so-called “two disease” or “separate disease” rule. In that case an individual diagnosed with mesothelioma was allowed to file a new asbestos lawsuit even though he had previously sued and recovered for asbestos-related lung cancer in a separate case about ten years earlier.
The “two disease” or “separate disease” rule, as applied in this Pennsylvania Supreme Court opinion, permitted the plaintiff to file a new lawsuit for a malignant asbestos-related disease, i.e., mesothelioma, even though he had previously filed a legal action for a different malignant asbestos-related disease, i.e., lung cancer, based on this reasoning:
- the second or subsequent lawsuit is based on a separate and distinct disease;
- which was not known to the plaintiff back at the time when his first action was filed; and,
- the asbestos-mesothelioma “second” case was filed within the applicable statute of limitations period.
Only certain states follow the “two disease” or “separate disease” rule, so it is important to check with an experienced asbestos attorney if you have a situation where mesothelioma is diagnosed after there had been an earlier asbestos lawsuit involving lung cancer or asbestosis.
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