Louise Blanyar v. Genova Products, Inc.

Appellants, former employees of Appellee Genova

Products Inc. (“Genova”), challenge the District Court’s

decision to dismiss their putative class action for medical

monitoring as barred by the applicable two year statute of

limitations. While acknowledging that their exposure to the

alleged toxic substances upon which they base their medical

monitoring claims ended more than two years before

commencing this litigation, Appellants contend that the

limitations period should have been tolled by the discovery

rule and should not have begun to run until they discovered

the toxicity of the substances present in the Genova

workplace, a discovery they claim was first made less than

two years before this action was initiated. The District Court

concluded that the discovery rule did not save Appellants’

action because information concerning the dangers of the

chemicals to which Appellants were exposed had been widely

available for decades before they filed their complaint. For

the reasons that follow, we will affirm the dismissal of

Appellants’ lawsuit.

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I.

Genova manufactures vinyl pipes and rain gutters. It

operated a plant in Hazleton, Pennsylvania from 1975 to

2012, employing as many as 240 workers in the late 1990s.

Appellants are all former employees of the Genova Hazleton

plant. Appellant Louise Blanyar last worked at the Genova

Hazleton plant in 2004. Appellant Lawrence Buchman left

Genova’s employ in 2006. Appellant Edward Yachera

terminated his employment with Genova in 1987. The

putative class action includes persons who last worked at the

Genova Hazleton plant in 2009. Genova ceased operations at

its Hazleton facility in 2012, more than two years before

Appellants commenced this litigation.

Appellants claim to have discovered previously

unavailable Material Safety and Data Sheets (“MSDSs”)

which reveal that, while working for Genova, they were

exposed to carcinogens and other toxic chemicals linked to

various diseases or conditions. Appellants allege that the

MSDSs show that the materials used in the manufacture of

Genova’s products contained toxins subject to state and

federal safety disclosure laws and other regulations.

According to Appellants, Genova violated these laws and

regulations, including the Occupational Safety and Health

Administration (“OSHA”) Hazard Communication Standard,

29 C.F.R. § 1910.1200, by failing to inform them about the

chemicals to which they were exposed and by failing to

provide the requisite protective equipment. While none of the

members of the putative class have suffered an injury or

illness linked to the substances used at Genova’s plant,

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Appellants assert that they are entitled to medical monitoring

because they are at increased risk of illness.1

Appellants’ complaint identifies sixteen specific

chemicals associated with increased incidences of various

cancers and diseases, including both Vinyl Chloride (“VC”),

a gas, and Polyvinyl Chloride (“PVC”), a powder made from

VC. They state that PVC is “one of the most widely used

plastic materials,” and that the health hazards of both

substances are “well-studied and well-documented.” (App.

38 ¶ 22; 39 ¶ 28.) Appellants note that the United States

Environmental Protection Agency and the World Health

Organization have classified VC as a known human

carcinogen and that the Center for Disease Control recognizes

it as a “significant potential threat to human health.” (App.

38 ¶ 25.) Appellants also cite medical literature dating back

to the 1980s that shows increased incidences of several types

of cancer, respiratory illness, and reproductive conditions in

1 Though they have not suffered any injuries

themselves, Appellants claim that, “[u]pon information and

belief, a multitude of former Hazleton employees have

developed chronic diseases or conditions as a result of their

occupational exposure.” (App. 40 ¶ 36.) Appellants

stipulated, however, that their proposed class definition

excludes any former Hazleton employees who have

manifested diseases or conditions believed to be attributable

to their occupational exposure. Appellants recognize that a

medical monitoring claim may be “inapplicable to a situation

where plaintiffs have already suffered compensable physical

injuries.” Slemmer v. McGlaughlin Spray Foam Insulation,

Inc., 955 F. Supp. 2d 452, 464 (E.D. Pa. 2013).

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workers exposed to VC and PVC. According to Appellants’

complaint, OSHA set strict standards for manufacturers who

work with or around VC. See 29 C.F.R. § 1910.1017 (2017).

These standards were first set in the 1970’s. See 39 Fed. Reg.

23,582 (June 27, 1974).

On May 15, 2015, more than two years after the

Hazleton plant closed in 2012, Appellants brought this

medical monitoring action in state court on behalf of

themselves and all those similarly situated, including all

cohabitating family members.2 Genova removed the action to

2 Under Pennsylvania law, a medical monitoring claim

consists of the following elements:

(1) exposure greater than normal background

levels; (2) to a proven hazardous substance; (3)

caused by the defendant's negligence; (4) as a

proximate result of the exposure, plaintiff has a

significantly increased risk of contracting a

serious latent disease; (5) a monitoring

procedure exists that makes the early detection

of the disease possible; (6) the prescribed

monitoring regime is different from that

normally recommended in the absence of the

exposure; and (7) the prescribed monitoring

regime is reasonably necessary according to

contemporary scientific principles.

Sheridan v. NGK Metals Corp., 609 F.3d 239, 251 (3d Cir.

2010) (quoting Redland Soccer Club, Inc. v. Dep’t of the

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federal court under the Class Action Fairness Act and on the

basis of diversity jurisdiction. 28 U.S.C. § 1332. The

complaint alleges that Genova’s negligence resulted in

Appellants’ occupational exposure to these toxins which has

substantially increased their risk of developing serious

diseases. To detect and mitigate the long term health

consequences of their exposure, Appellants propose several

“well-established and specialized medical monitoring

procedures.” (App. 41 ¶ 42.) According to Appellants, these

procedures can allow for early diagnosis and treatment, and

the management, mitigation, or even prevention of long term

health consequences.

Genova moved to dismiss, arguing that Appellants’

claims were barred by the statute of limitations.3 Appellants

Army & Dep’t of Def. of the U.S., 696 A.2d 137, 145–46 (Pa.

1997)).

3 Genova also argued that Appellants failed to plead

their cause of action with the specificity required by Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft

v. Iqbal, 556 U.S. 662 (2009). According to Genova, while

the complaint does contain a long list of chemicals and

potential monitoring regimes, it does not adequately plead the

elements of a medical monitoring claim. The District Court

recognized the merits of this argument and advised

Appellants to address these deficiencies should they file an

amended complaint. Appellants did not file an amended

complaint. Although Genova raises the argument again on

appeal, we need not reach it as the statute of limitations has

run on Appellants’ medical monitoring claim.

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did not dispute the applicable two year statute of limitations

for a medical monitoring claim, but contended that the statute

should be tolled under the discovery rule as they were unable

to reasonably discover their cause of action within the

prescribed time period.4 The District Court granted Genova’s

motion without prejudice, holding that the discovery rule did

not apply because Appellants’ complaint attested to the

prevalence of information regarding the dangers of PVC and

VC years before this lawsuit was brought. Blanyar v. Genova

Prods., Inc., No. 15-cv-1303, 2016 WL 740941, at *7 (M.D.

Pa. Feb. 25, 2016). Thus, the two year statute of limitations

for their medical monitoring claim had passed with respect to

the named plaintiffs. Appellants timely appealed.

II.

The District Court had jurisdiction under 28 U.S.C. §

1332. Because the employees chose to stand on their original

complaint, the District Court’s order is final and reviewable

4 Before the District Court, Appellants had also argued

that the statute of limitations should be tolled under the

doctrine of fraudulent concealment. This doctrine “provides

that the defendant may not invoke the statute of limitations, if

through fraud or concealment, he causes the plaintiff to relax

his vigilance or deviate from his right of inquiry into the

facts.” Fine v. Checcio, 870 A.2d 850, 860 (Pa. 2005). The

District Court concluded that Appellants had not exercised

the reasonable diligence required for fraudulent concealment

to apply. Appellants have abandoned this argument on

appeal.

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under 28 U.S.C. § 1291.5 Borelli v. City of Reading, 532 F.2d

950, 951–52 (3d Cir. 1976). We exercise plenary review of a

district court’s decision to grant a motion to dismiss pursuant

to Federal Rule of Civil Procedure 12(b)(6). Fleisher v.

Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). When

considering a Rule 12(b)(6) motion, we “accept all factual

allegations as true, construe the complaint in the light most

5 As discussed further below, Appellee argues that

Appellants’ claims are barred by workers’ compensation

exclusivity. Although workers’ compensation exclusivity is a

threshold jurisdictional concern in state court, LeFlar v. Gulf

Creek Indus. Park No. 2, 515 A.2d 875, 879 (Pa. 1986), we

join our sister circuits who have held that state substantive

law cannot deprive a federal court of its diversity jurisdiction.

See Goetzke v. Ferro Corp., 280 F.3d 766, 778–79 (7th Cir.

2002); Mullen v. Acad. Life Ins. Co., 705 F.2d 971, 975 (8th

Cir. 1983); Dominion Nat. Bank v. Olsen, 771 F.2d 108, 116

n.2 (6th Cir. 1985); Begay v. Kerr-McGee Corp., 682 F.2d

1311, 1316 (9th Cir. 1982); see also MCI

Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d

1086, 1109 (3d Cir. 1995) (Nygaard, J., concurring) (“It is

axiomatic that, because federal subject matter jurisdiction can

be conferred or withdrawn only by Congress, a federal court

must look only to federal, not state, law to determine whether

that jurisdiction exists, even when the substantive right at

issue is a creature of state law.”). Accordingly, we deem

Appellee’s assertion of workers’ compensation exclusivity

simply another potential ground for dismissal of Appellants’

complaint on the merits under Pennsylvania law—not as a

threshold jurisdictional issue for a federal court sitting in

diversity.

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favorable to the plaintiff, and determine whether, under any

reasonable reading of the complaint, the plaintiff may be

entitled to relief.” Id. (quoting Fowler v. UPMC Shadyside,

578 F.3d 203, 210 (3d Cir. 2009)).

III.

Under Pennsylvania law, the statute of limitations for a

medical monitoring claim is two years. Barnes v. Am.

Tobacco Co., 161 F.3d 127, 152 (3d Cir. 1998). A medical

monitoring claim accrues at the moment that an individual

was “placed at a ‘significantly increased risk of contracting a

serious latent disease.’” Id. at 152 (quoting Redland Soccer

Club, Inc. v. Dep’t of the Army & Dep’t of Def. of the U.S.,

696 A.2d 137, 145 (Pa. 1997)). Because Genova’s Hazleton

facility closed in 2012, no member of the putative class could

have been exposed to any chemical as a result of Genova’s

alleged negligence within two years of the filing of their

complaint. Appellants therefore argue that the statute was

tolled because they were unable to discover the existence of

their claim until they received the MSDSs.6

6 Appellants also contend that their claims are timely

under the Pennsylvania Workers Compensation Act

(“WCA”), which provides the exclusive remedy for claims of

occupational disease. 77 Pa. Cons. Stat. § 481 (2017). The

WCA states that plaintiffs can only recover for occupational

diseases that manifest “within three hundred weeks after the

last date of employment.” Id. § 411. Recently, the

Pennsylvania Supreme Court held that occupational diseases

which first become manifest more than 300 weeks after a last

exposure did not fall within the definition of injury in the

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The discovery rule “tolls the statute of limitations

during the ‘plaintiff’s complete inability, due to facts and

circumstances not within his control, to discover an injury

despite the exercise of due diligence.’” Barnes, 161 F.3d at

152 (quoting Kingston Coal Co. v. Felton Mining Co., 690

A.2d 284, 288 (Pa. Super. Ct. 1997) (emphasis added).

“[T]he statute of limitations begins to run when the ‘plaintiff

knows, or in the exercise of reasonable diligence should have

known, (1) that he has been injured, and (2) that his injury has

been caused by another's conduct.’” Id. (quoting Bradley v.

Ragheb, 633 A.2d 192, 194 (Pa. Super. Ct. 1993). The

application of the rule requires that the plaintiff use “all

reasonable diligence to inform himself or herself properly of

WCA, and thus were not barred by WCA exclusivity. Tooey

v. AK Steel Corp., 81 A.3d 851, 859-64 (2013).

On appeal, Appellants argue that their claims are not

time barred because Tooey created a previously unrecognized

cause of action that, by definition, has a statute of limitations

of at least 300 weeks after the last date of occupational

exposure. Appellee responds that Tooey has no application to

medical monitoring claims and, therefore, that Appellants’

claim is not only time barred, but is barred by WCA

exclusivity. We need not address Tooey’s import on this

case, however, as Appellants conceded before the District

Court that their claims are subject to Pennsylvania’s two-year

statute of limitations, and Appellee did not raise WCA

exclusivity in its motion to dismiss. Thus, both parties’

arguments, raised for the first time on appeal, are waived.

Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011).

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the facts and circumstances upon which the right of recovery

is based and to institute suit within the prescribed statutory

period.” Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d

548, 556 (3d Cir. 1985) (emphasis added) (citing Schaffer v.

Larzelere, 189 A.2d 267, 269 (Pa. 1963)). “Pennsylvania's

formulation of the discovery rule reflects a narrow approach

‘to determining accrual for limitations purposes’ and places a

greater burden upon Pennsylvania plaintiffs vis-á-vis the

discovery rule than most other jurisdictions.” Gleason v.

Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011) (quoting

Wilson v. El-Daief, 964 A.2d 354, 364 (Pa. 2009).

Ultimately, “the salient point giving rise to [the discovery

rule’s] application is the inability of the injured, despite the

exercise of reasonable diligence, to know that he is injured

and by what cause.” Fine v. Checcio, 870 A.2d 850, 858 (Pa.

2005).

In a medical monitoring case such as this one, injury

occurs when the plaintiff is “placed at a significantly

increased risk of contracting a serious latent disease.” Barnes,

161 F.3d at 152 (citation omitted). Thus, for the discovery

rule to apply, Appellants must not have known, and

reasonably could not have discovered, the dangers of VC and

PVC exposure prior to May 2013, or two years before the

filing of their complaint. As the District Court noted,

Appellants’ own complaint recognizes the extent to which the

substances they identify had been “well-studied and welldocumented

in medical literature from around the world.”

(App. 39 ¶ 28.) Many of the studies cited in the complaint

date back as early as the 1980s. See, e.g., S.S. Heldas, S.L.

Langård, & A. Anderson, Incidence of Cancer Among Vinyl

Chloride and Polyvinyl Chloride Workers, 41 Brit. J. of Med.

25 (1984). The complaint also references OSHA’s VC

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exposure regulations which have been in effect since 1974.

See 39 Fed. Reg. 23,502, 23,589 (June 27, 1974) (now

codified, as amended, at 29 C.F.R. § 1910.1017).

In Barnes, we held that cigarette smokers’ medical

monitoring claims were not saved by the discovery rule

because “[e]ach plaintiff should have known that cigarettes

put him or her at a significantly increased risk of contracting a

serious latent disease years before [the] lawsuit was filed.”

161 F.3d at 153. In Carey v. Kerr-McGee Chem. Corp., 999

F. Supp. 1109, 1120 (N.D. Ill. 1998), the court held that

widespread knowledge of potential health hazards from

exposure to thorium tailings years before plaintiffs brought

their medical monitoring claim precluded application of the

discovery rule.

As in those cases, Appellants knew, or in the exercise

of reasonable diligence should have known, that they worked

with and were being exposed to VC and PVC. Considering

the wide availability of information documenting the risks of

exposure to these substances in medical literature, and VC’s

regulation by the federal government dating back to the

1970s, we agree with the District Court that Appellants were

on inquiry notice well before May 2013 that their work at the

Genova facility may have placed them at a significantly

increased risk of contracting a serious latent disease.

Appellants exercised no reasonable due diligence with regard

to their claims, and the discovery rule therefore does not

apply.

Appellants contend that the question of whether they

were reasonably diligent in informing themselves of the facts

and circumstances surrounding their claim should be left to

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the jury. While Appellants correctly note that reasonableness

in this context is a question of fact, a court may decide the

issue as a matter of law when “reasonable minds would not

differ in finding that a party knew or should have known on

the exercise of reasonable diligence of his injury and its

cause.” Fine, 870 A.2d at 858–59 (citing Pocono Int’l

Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471

(Pa. 1983)). Given the substantial evidence documenting the

dangers of their occupational exposure to the substances used

at the Genova plant, we agree with the District Court that

reasonable minds would not differ in finding that the

Appellants did not exercise the reasonable diligence required

for the discovery rule to toll the statute of limitations. And

because the statute of limitations for a medical monitoring

claim has clearly run, the District Court properly dismissed

Appellants’ complaint.7

IV.

7 Because none of the Appellants have alleged that

they have suffered any ill health effects due to their work at

the Genova Hazleton plant, they may not be foreclosed from

bringing personal injury actions if they later contract diseases

related to their alleged occupational exposure. See Tooey, 81

A.3d at 865. Although Appellants' instant claims for medical

monitoring are time barred, their statute of limitations to

bring personal injury actions would begin to run anew were

Appellants to manifest symptoms of occupational disease

three-hundred weeks after their last exposure to hazardous

substances.

For the foregoing reasons we will affirm the District

Court’s order granting Genova’s motion to dismiss.