                                  PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            _____________

                No. 16-1684
               _____________

            LOUISE BLANYAR;
          LAWRENCE BUCHMAN;
           EDWARD YACHERA,
                       Appellants

                      v.

         GENOVA PRODUCTS INC
             _____________

On Appeal from the United States District Court
    for the Middle District of Pennsylvania
         (D.C. Civ. No. 3-15-cv-01303)
  District Judge: Hon. Malachy E. Mannion
               ______________

           Argued October 26, 2016
              ______________
      Before: FISHER, * VANASKIE, and KRAUSE,
                    Circuit Judges.

                (Opinion Filed: June 30 2017)


Sol H. Weiss, Esq.                [ARGUED]
Paola Pearson, Esq.
David S. Senoff, Esq.
ANAPOL WEISS
130 North 18th Street, Suite 1600
Philadelphia, PA 19103

      Counsel for Appellants

Justin P. Bagdady, Esq.           [ARGUED]
James J. Walsh, Esq.
BODMAN PLC
201 South Division Street, Suite 400
Ann Arbor, MI 48104

Fredrick J. Dindoffer, Esq.
BODMAN PLC
1901 St. Antoine Street
Sixth Floor at Ford Field
Detroit, MI 48226




      *
        Honorable D. Michael Fisher, United States Circuit
Judge for the Third Circuit, assumed senior status on
February 1, 2017.




                               2
J. Benjamin Nevius, Esq.
Ronald L. Williams, Esq.
FOX ROTHSCHILD LLP
747 Constitution Drive, Suite 100
Exton, PA 19341

      Counsel for Appellee
                      ___________

                         OPINION
                        ___________

VANASKIE, Circuit Judge.

        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.




                              3
                             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,




                             4
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).




                              5
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




                              6
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.




                              7
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.




                               8
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.




                               9
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




                              10
       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).




                               11
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 well-
documented 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




                              12
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




                               13
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.




                              14
      For the foregoing reasons we will affirm the District
Court’s order granting Genova’s motion to dismiss.




                            15
