J-A03033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SANDRA COOPER, IN HER OWN RIGHT               IN THE SUPERIOR COURT OF
AND AS ADMINISTRATRIX OF THE                        PENNSYLVANIA
ESTATE OF GENE M. COOPER

                       Appellant

                  v.

ARMSTRONG WORLD INDUSTRIES, INC.,
ALAN J. HAY, M.D.

                       Appellees                   No. 632 EDA 2015


             Appeal from the Order Entered February 2, 2015
          In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): August Term, 2013, No. 02452

SANDRA COOPER, IN HER OWN RIGHT               IN THE SUPERIOR COURT OF
AND AS ADMINISTRATRIX OF THE                        PENNSYLVANIA
ESTATE OF GENE M. COOPER

                       Appellant

                  v.

ARMSTRONG WORLD INDUSTRIES, INC.,
ALAN J. HAY, M.D.

                       Appellees                   No. 633 EDA 2015


            Appeal from the Order Entered February 2, 2015
          In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): 2452 August Term, 2013


BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED JULY 15, 2016

     Appellant, Sandra Cooper, in her own right and as administratrix of the
J-A03033-16


Estate of Gene M. Cooper, appeals from the orders entered in the

Philadelphia County Court of Common Pleas, which granted summary

judgment in favor of Appellees, Armstrong World Industries, Inc. (Appellee

AWI) and Alan J. Hay, M.D. (“Appellee Hay”). We affirm.

      In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case.     Therefore, we will only briefly

summarize them. In September 2003, a chemical spill occurred at Appellee

AWI’s plant in Lancaster, Pennsylvania. Gene M. Cooper (“Mr. Cooper”) was

an employee of Appellee AWI and one of the workers assigned to clean up

the spill. Mr. Cooper developed a cough and severe sinus pain immediately

after his involvement in the cleanup. Within several months of the cleanup,

Mr. Cooper began a cognitive decline.

      When his cognitive issues interfered with his work, Appellee AWI

referred Mr. Cooper to Appellee Hay for an evaluation. After evaluating Mr.

Cooper, Appellee Hay contacted Mr. Cooper’s primary physician, who

ordered neurological testing to diagnose Mr. Cooper’s condition. Due to Mr.

Cooper’s substantial cognitive issues, Appellee AWI placed Mr. Cooper on

disability in May 2004. Over the next several years, Mr. Cooper’s condition

rapidly deteriorated.   The court deemed Mr. Cooper a totally incapacitated

person in June 2006. As Mr. Cooper’s then court-appointed legal guardian,

Appellant subsequently placed Mr. Cooper in a full-time assisted living

facility. After multiple evaluations of Mr. Cooper by many different doctors,


                                      -2-
J-A03033-16


Mr.   Cooper   was   diagnosed   in   November    2007,   with    work-related

encephalopathy with consequent dementia.

      In December 2007, Appellant filed a worker’s compensation claim on

Mr. Cooper’s behalf, which asserted that Mr. Cooper had developed

encephalopathy with dementia after toxic overexposure at work. During the

course of the worker’s compensation case, Appellant requested Mr. Cooper’s

chemical exposure documentation from Appellee AWI.               Appellee AWI

supplied some of the pertinent information, but it claimed the rest of Mr.

Cooper’s relevant chemical exposure documentation had been inadvertently

lost or destroyed during a move to a new building. Appellant learned for the

first time, in 2009, of Appellee Hay’s evaluation of Mr. Cooper in 2004. After

numerous additional evaluations of Mr. Cooper by doctors, Appellant learned

that Mr. Cooper’s prognosis was poor and his injury was the result of

“occupational solvent exposure.” In October 2011, Appellant learned from

an employee of Appellee AWI that Mr. Cooper’s chemical exposure

documentation was stored on Appellee AWI’s computer system.

      In the worker’s compensation action, the court determined Mr. Cooper

suffered from toxic encephalopathy caused by chronic solvent and chemical

exposure and acute exposure to toxic chemicals while working at Appellee

AWI’s manufacturing plant.    As a result, in 2012, the court awarded Mr.

Cooper compensation benefits, interest, attorney’s fees, litigation costs, and

medical expenses incurred for the treatment of his toxic encephalopathy.


                                      -3-
J-A03033-16


      On August 22, 2013, Appellant filed a tort action against Appellees.

On October 9, 2013, Appellant filed an amended complaint, which raised

claims of fraud, conspiracy, recklessness, negligent infliction of emotional

distress, and intentional infliction of emotional distress.   Appellee AWI and

Appellee Hay filed preliminary objections on October 28, 2013, and October

29, 2013, respectively.    The court overruled both Appellees’ preliminary

objections on November 29, 2013. Appellee Hay then filed an answer and

new matter to Appellant’s complaint on December 30, 2013, and Appellee

AWI filed an answer and new matter on January 8, 2014. Mr. Cooper died

on February 5, 2014.

      On October 22, 2014, Appellant and her children filed a wrongful death

and survival action against Appellees. On October 25, 2014, Appellant filed

a motion to consolidate the 2013 tort action with the wrongful death and

survival action pursuant to Pa.R.C.P. 213(e)(1), which the court granted by

order dated November 26, 2014.

      On December 1, 2014, both Appellees filed motions for summary

judgment in the 2013 tort action alleging, inter alia, the relevant statutes of

limitation barred Appellant’s claims raised in that action.     After Appellant

filed answers to Appellees’ motions for summary judgment, the court

granted summary judgment on January 21, 2015, in favor of both Appellees

on Appellant’s negligent infliction of emotional distress and intentional

infliction of emotional distress claims and Appellee Hay on Appellant’s


                                     -4-
J-A03033-16


recklessness claim. The court then granted summary judgment in favor of

Appellees on all of Appellant’s remaining claims in the 2013 tort action by

order dated January 30, 2015, and docketed February 2, 2015. On February

10, 2015, Appellant filed a notice of appeal from the court’s order granting

summary judgment in favor of Appellees.     The court ordered Appellant on

February 11, 2015, to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Appellant complied on March 2,

2015.

        On May 17, 2016, we quashed the appeal, based on this Court’s

decision in Malanchuk v. Tsimura, 106 A.3d 789 (Pa.Super. 2014) (en

banc), which defined the order on appeal as a non-final order; that case was

then pending review before the Pennsylvania Supreme Court. In the wake

of our Supreme Court’s reversal, however, we promptly withdrew our

disposition and sua sponte granted reconsideration of this appeal on May 26,

2016. See Malanchuk v. Tsimura, ___ A.3d ___, 2016 WL 3022688 (Pa.

filed May 25, 2016) (holding: where court consolidates two actions pursuant

to Pa.R.C.P. 213, cases retain their separate identities and require distinct

judgments unless complete consolidation is achieved; complete consolidation

occurs only when both actions involve same parties, subject matter, issues,

and defenses; absent complete consolidation, judgment entered in one case

is final, and party is entitled to immediate appeal as of right). Because the

trial court had consolidated this 2013 tort action with a wrongful death and


                                    -5-
J-A03033-16


survival action that involves different parties and diverse claims, complete

consolidation did not occur. See Kincy v. Petro, 606 Pa. 524, 531, 2 A.3d

490, 494 (2010). Thus, Appellant is entitled to an appeal as of right from

the trial court’s order granting summary judgment in the present case, and

this appeal is properly before us. See Malanchuk, supra.

      Appellant raises one issue for our review:

         DID THE [TRIAL] COURT IMPROPERLY INTRUDE UPON THE
         PROVINCE OF THE FACT-FINDER BY CONCLUDING THAT
         THE COOPERS HAD NOT EXERCISED REASONABLE
         DILIGENCE AND THUS RENDERING THE DISCOVERY RULE
         INAPPLICABLE TO THE STATUTE OF LIMITATIONS FOR
         FRAUD AND CONSPIRACY?

(Appellant’s Brief at 4).

      Our standard of review of an order granting summary judgment

requires us to determine whether the trial court abused its discretion or

committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344,

347 (Pa.Super. 2006).

         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it
         misapplies the law or exercises its discretion in a manner
         lacking reason.       Similarly, the trial court abuses its
         discretion if it does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations omitted).   Our scope of review is plenary.    Pappas v.

Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536

U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).         In reviewing a trial


                                     -6-
J-A03033-16


court’s grant of summary judgment,

        [W]e apply the same standard as the trial court, reviewing
        all the evidence of record to determine whether there
        exists a genuine issue of material fact. We view the record
        in the light most favorable to the non-moving party, and
        all doubts as to the existence of a genuine issue of
        material fact must be resolved against the moving party.
        Only where there is no genuine issue as to any material
        fact and it is clear that the moving party is entitled to a
        judgment as a matter of law will summary judgment be
        entered. All doubts as to the existence of a genuine issue
        of a material fact must be resolved against the moving
        party.

        Motions for summary judgment necessarily and directly
        implicate the plaintiff’s proof of the elements of [a] cause
        of action.   Summary judgment is proper if, after the
        completion of discovery relevant to the motion, including
        the production of expert reports, an adverse party who will
        bear the burden of proof at trial has failed to produce
        evidence of facts essential to the cause of action or
        defense which in a jury trial would require the issues to be
        submitted to a jury. In other words, whenever there is no
        genuine issue of any material fact as to a necessary
        element of the cause of action or defense, which could be
        established by additional discovery or expert report and
        the moving party is entitled to judgment as a matter of
        law, summary judgment is appropriate. Thus, a record
        that supports summary judgment either (1) shows the
        material facts are undisputed or (2) contains insufficient
        evidence of facts to make out a prima facie cause of action
        or defense.

        Upon appellate review, we are not bound by the trial
        court’s conclusions of law, but may reach our own
        conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

     After a thorough review of the record, the briefs of the parties, the


                                     -7-
J-A03033-16


applicable law, and the well-reasoned opinion of the Honorable Ellen Ceisler,

we conclude Appellant’s issue merits no relief.           The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed May 20, 2015, at 17-24) (finding: Appellant’s

claim that discovery rule tolled statute of limitations until Mr. Cooper’s

autopsy revealed exact nature of Mr. Cooper’s illness fails because perfect or

near-perfect diagnosis was not required to trigger statute of limitations;

likewise, lack of complete or exact diagnosis did not toll statute of limitations

for purposes of discovery rule; Appellant was aware, as early as September

25, 2003 (when Mr. Cooper told Appellant about cleanup of spill at work)

and no later than November 2, 2010 (when Appellant received letter about

Mr. Cooper’s illness and prognosis), that Mr. Cooper sustained serious injury

due to “occupational solvent exposure”; further, Appellant’s claim that

discovery   rule   should   toll   statute   of   limitation,   because   Appellees

“fraudulently” withheld critical documents, was undermined because (a)

Appellant knew as early as December 2005 that Appellee AWI was

withholding exposure documents in violation of Occupational Safety and

Health Act (“OSHA”), (b) Appellant learned in 2009 that Appellee Hay had

assessed Mr. Cooper in May 2004, and had failed to provide his notes to

Appellant during intervening time, and (c) between 2005 and 2010, no less

than eight doctors informed Appellant that Mr. Cooper suffered from work-

induced toxic encephalopathy and dementia; these facts establish that


                                       -8-
J-A03033-16


Appellant had actual or constructive notice between 2005 and 2010 that: (a)

Appellee AWI’s denial of Appellant’s request for Mr. Cooper’s exposure

records violated OSHA and prevented Appellant’s timely access to Mr.

Cooper’s exposure information, (b) Appellees hid from Appellant Dr. Hay’s

involvement    with   Mr.   Cooper,   and   (c)   Mr.   Cooper’s   progressively

deteriorating state was linked to 2003 chemical spill and other exposure to

chemicals at Appellee AWI’s plant; in light of Appellant’s notice of these

facts, November 2, 2010, was last possible date Appellant knew or should

have known, through exercise of due diligence, about Appellees’ tortious

conduct; pursuant to discovery rule, two-year statute of limitations began to

run on this date at the latest and required Appellant to file suit no later than

November 2, 2012; Appellant did not file present tort action until August 22,

2013, nearly ten months beyond applicable deadline; thus, Appellant’s

claims are time-barred, and court properly granted Appellees’ motions for

summary judgment).

      We agree with the court’s decision but write separately to emphasize

the following points. First, the record discloses no dispute over whether Mr.

Copper suffered chronic solvent and chemical exposure and acute exposure

to toxic chemicals while working at Appellee AWI’s manufacturing plant.

Appellant’s fraud complaint does not allege that Appellee AWI denied the

direct connection between Mr. Cooper’s toxic exposure and his medical

diagnosis, deteriorating health, and death.        Likewise, Appellant’s fraud


                                      -9-
J-A03033-16


complaint does not allege what additional information was needed for Mr.

Cooper’s diagnosis or how his diagnosis and treatment would have changed

or how the additional documents, on which the fraud claim rests, would have

altered the nature or cause of the workplace injury Mr. Cooper suffered. The

documents at issue purport to reveal additional information on the extent or

degree of Mr. Cooper’s exposure, which is not material to a statute of

limitations argument in the present context.      Moreover, Appellant did not

assert that AWI intentionally exposed Mr. Cooper to the toxic solvents which

caused Mr. Cooper’s health problems. Instead, the intentional tort Appellant

asserted against Appellees centered on the alleged withholding of certain

documentation regarding the extent of Mr. Cooper’s chemical exposure,

although Appellant already knew about the exposure.        In this respect, the

trial court’s analysis deserves to be directly quoted as follows:

         In support of [the] effort to defeat the…summary
         judgment motions, [Appellant] attempted to rebut
         [Appellees’] statute of limitations argument by raising both
         the discovery rule and the fraudulent concealment
         doctrine, in essence maintaining that there are genuine
         issues of material fact as to whether the filing window was
         tolled, and whether their suit was thus initiated in a timely
         fashion. First, [Appellant] claimed that it was not possible
         to ascertain the precise nature of Mr. Cooper’s injuries
         until he was autopsied at some point in 2014. Second,
         [Appellant] argued that AWI and [Dr.] Hay conspired in a
         series of [still ongoing] fraudulent acts, intentional
         omissions, and deliberate [record] destruction, which
         (depending on which of [Appellant’s] filings one happens to
         be reading) prevented [Appellant] from learning of AWI’s
         alleged duplicity until October 2011 or December 2011
         and, independent of the federal preemption argument,
         continues to toll the statute of limitations.

                                     - 10 -
J-A03033-16



       Unfortunately, neither of these arguments provided a
       sufficiently substantive counter to [Appellees’] requests for
       relief. Regarding the former, actual notice of an injury via
       a perfect, or nearly perfect, diagnosis is not required for a
       relevant statute of limitations to run, and a lack thereof
       does not, in itself, toll the period for filing suit; thus, the
       fact that [Appellant] may not have known the exact nature
       of Mr. Cooper’s malady until after his post-mortem
       examination is irrelevant, especially when the Coopers
       were aware as early as September 25, 2003 (i.e. the date
       of the Top Foam spill), and no later than Dr. Martin’s
       November 2, 1010 assessment letter to the Coopers’
       attorney (which itself merely reinforced the diagnoses
       offered by Drs. Chaudhry, Cho, Fochtman, Gold, Gur,
       Newberg, and Thrasher), that Mr. Cooper had sustained a
       serious injury due to “occupational solvent exposure.”46 As
       to the latter, though the Coopers claimed that both AWI
       and Dr. Hay fraudulently withheld (and continue to
       withhold) critical documentation regarding Mr. Cooper’s
       workplace exposure to chemicals, whatever merit this
       argument may have is undermined by a triumvirate of
       details: First, the Coopers requested these exposure
       records as early as December 2005, only to be refused by
       AWI, even though [OSHA] explicitly requires employers to
       provide such documentation, upon request, to affected
       employees; second, [Appellant] became aware in 2009
       that Dr. Hay had assessed Mr. Cooper during a May 2004
       office visit, allegedly doing so without her knowledge, and
       had not provided either of the Coopers with his related
       notes during the intervening time; third, between
       November 17, 2007 and November 2, 2010, the Coopers
       were informed by no less than eight separate doctors that
       Mr.     Cooper      suffered   from     work-induced      toxic
       encephalopathy and dementia. Thus, even when viewing
       the case record in the light most favorable to the Coopers,
       it is evident that they gained actual or constructive notice,
       at various points between late 2005 and late 2010, that:
       (1.) AWI had violated [OSHA] by denying their
       initial…requests for Mr. Cooper’s chemical exposure
       history, and had therefore prevented the Coopers from
       obtaining such information in a timely manner; (2.) Dr.
       Hay’s involvement in this matter had been hidden from
       [Appellant] for roughly five years after Mr. Cooper’s 2004

                                   - 11 -
J-A03033-16


        office visit; and (3.) Mr. Cooper’s progressively
        deteriorating state, on both a mental and physical level,
        was inextricably linked to his participation in the Top Foam
        spill cleanup, as well as to decades of chronic exposure to
        solvents and other chemicals at the Facility. Accordingly,
        this [c]ourt determined that there was no genuine issue of
        material fact as to the latest possible date upon which the
        Coopers knew, or should have known, each of these facts,
        and thus be put on notice of Appellees’ allegedly fraudulent
        and conspiratorial conduct: November 2, 2010 (i.e. the
        date of Dr. Martin’s letter).
           46
               Moreover, …given the [Workers’ Compensation
           Act’s] near-blanket prohibition against common law
           actions based upon workplace injuries, the injuries
           allegedly caused to Mr. Cooper by the Top Foam
           spill, standing alone, could not form the foundation
           of a permissible [common law tort] suit.

(Trial Court Opinion at 22-24) (most internal citations, footnotes, and

quotation marks omitted). The record supports the court’s analysis, which

we accept. Accordingly, we affirm on the basis of the trial court’s opinion

and our additional commentary.

     Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




                                   - 12 -
i   > '   •   .,




                                                                                                        Circulated 06/20/2016 01:51 PM




                                            IN THE COURT OF COMMON PLEAS
                                       FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                                  CIVIL TRIAL DIVISION



                   SANDRA COOPER, IN HER OWN RIGHT,                             SUPERIOR COURT
                   AND AS PLENARY GUARDIAN OF GENE M. :                         632EDA2015
                   COOPER, and GENE M. COOPER                                   633 EDA2015
                                   Plaintiffs-Appellants
                                                                                COURT OF COMMON PLEAS
                                                                                130802452
                                  v.
                   ARMSTRONG WORLD INDUSTRIES, INC.
                   and DR. ALAN J. HAY, M.D.
                                     Defendants-Appellants


                                                               OPINION                                                                 /'
                                                                                                                                       l
                                                                                                                    i'. : '
                                                                                                                   ...., .·
                                                                                                                  ~,:'.;      ;   1

                   ELLEN CEISLER, J.                                            DATE: May 20, 2015~;~,t                       ,   s




                   I.     FACTS AND PROCEDURAL HISTORY
                          The instant appeals, filed by Plaintiffs-Appellants Sandra Cooper and Gene M. Cooper
                   ("Mrs. Cooper," "Mr. Cooper," or, collectively, "The Coopers"), emanate from this Court's
                   orders, docketed on February 2, 2015, granting Defendants-Appellants Armstrong World
                   Industries, Inc. and Dr. Alan J. Hay's ("A WI" and "Dr. Hay," individually, and collectively
                   "Appellees") respective Motions for Summary Judgment. As will be discussed at length infra,
                   this Court respectfully maintains that the claims contained in the Coopers' suit are barred by the
                   relevant statute oflimitations, meaning that this Court properly granted summary judgment in
                   favor of both AWI and Dr. Hay, and that the Coopers' appeals should therefore be denied.




                                                                                      Cooper Elal Vs Armstrong Wond lndustnes -OPFLO




                                                                    1
                                                                                      H . 1111111  IIIH 111111
                                                                                            13080245200158
                     A WI, a flooring and ceiling manufacturer located in Lancaster, PA, 1 hired Mr. Cooper                      ih-

            April1974, initially assigning him to warehouse operations in its Lancaster facility ("Facility").2

.........
            AWI's Motion for Summary Judgment, Ex. D Part I at 17 ("A WI MSJ"). Subsequently, Mr .
            Cooper took an extended leave of absence starting in 1975, during which he served in the Armed
            Forces and, in addition, married Mrs. Cooper. Id. at 17, 25. He returned to AWI in October 1979,
            spending the bulk of the ensuing decades working in various capacities throughout the Facility,3
            and eventually became a lead product inspector in A WI's "Corlon" department. Id. at 15, 17, 19.
            As a consequence of his time working at AWI, Mr. Cooper was regularly exposed to industrial
            cleaning solvents of varying toxicity, as well as certain inks that were used in the flooring
            manufacturing process. Id. at 12-15, 22.


                     While this low-level exposure may have had, in the aggregate, some negative impact on
            Mr. Cooper, see A WI MSJ, Ex. D Part I at 27 (Mrs. Cooper stating that, starting at some point in
            2000, Mr. Cooper began to be regularly, and inexplicably, irritable), the true tipping point was in
            September 2003, when a major chemical spill occurred at the Facility. On September 25, 2003, a
            valve on a tank located within the Facility's Building 94, on the #6 Coating Line of AWi's
            rotogravure division, was improperly left open by an A WI employee, allowing roughly 500 or
            more gallons of"Top Foam"4 to spill out into the production area and the basement below. Id. at
            31-32; Amended Complaint at 5. Though Mr. Cooper was working in A WI's Codon department,
            at Table 10 in the Facility's Building 200, this spill was of a magnitude necessitating an "all

            I
             See generally Home, AWI Licensing Company, 2015, http://www.armstrong.com/ (AWI's website, which shows
            AWI's location, as well as the nature of its business operations).
            2
             At one point, AWI's Lancaster operations contained "five different production areas," which sprawled over an area
            110 acres in size that contained 220 buildings; however, due to downsizing and related layoffs, all that remains
            today is AWI's rotogravure department, which is responsible for printing certain kinds of flooring products.~
            Motion for Summary Judgment, Ex. D Part I at 17.
            3
              Mr. Cooper graduated from Millersville College (now Millersville University) in 1989, earning a bachelor's degree
            in business and finance, and later "took courses [though Villanova University] toward[s] insurance certification
            [and] selling securities," though he did not obtain enough credits to sit for the Series 7 licensing exam. AWI's
            Motion for Summary Judgment, Ex. D Part I at 25-26.
            4
              According to Harold Zerger, an AWI employee, Top Foam "is the gel that [AWI coating department employees]
            put on the top layer of [AWI] flooring [and is] made out of... paste, plastisols and sawdust," as well as an industrial
            solvent known as "Solvesso" and arsenic. AWI's Motion for Summary Judgment, Ex. D Part I at 32-33; see also id.
            at 23 (description ofSolvesso's ingredients, as well as its potential health hazards). AWi creates a "finished
            linoleum flooring product" by soaking felt with Top Foam, and then letting the felt dry. Amended Complaint at 5.


                                                                       2
hands on deck" response. See AWI MSJ, Ex. D Part I at 24-25 (testimony from Joseph
Rumberger, President" of United Steelworkers Local 285 and A WI employee who worked with
Mr. Cooper); id. at 32-33 (testimony from Harold Zorger, a form.er AWi employee).
Accordingly, Mr. Cooper was pulled from his normal post and was reassigned to the Top Foam
spill mitigation endeavor in Building 94's basement. Id. at 32-33; Amended Complaint at 5.5
Despite the fact that the basement area was a confined space with nonexistent ventilation, A WI
did not give Mr. Cooper or his co-workers proper protective gear, nor did it provide them with
post-remediation decontamination. A WI MSJ, Ex. D Part I at 33 (testimony from Harold
Zorger); id at 37 (testimony from David Clark, an AWi employee). These efforts "took days to
accomplish," and were ultimately completed only through the assistance of an outside contractor.
Id. at 33-34.


         Mr. Cooper returned home after completing his role in the clean-up, at which point it was
transparently clear to his wife that he was in great distress. According to Mrs. Cooper, her
husband "walked in the door and it was like a barrage. He was screaming. He was swearing. He
had tears running down his face, his eyes were watering and he was coughing. I don't even know
how to explain the cough. I've never heard anybody cough like that. .. I asked him what was the
matter." Id. at 27. Though it seems that Mr. Cooper's cough rendered him nearly incapable of
speech, he was able to communicate to his wife that he and his coworkers had dealt with a major
spill of some sort, and that he was not happy with having been required to assist with the
cleaning. Id.; Cooper Affidavit at 2. 6 More than a week passed without any real improvement,
leading Mr. Cooper to seek treatment from Dr. Gary Gehman, his personal physician, who
prescribed a 10-day course of antibiotics in order to treat what Dr. Gehman apparently believed
was some sort of sinus infection. A WI MSJ, Ex. D Part I at 27; Cooper Affidavit at 2. When this


5
 While Harold Zorger testified that he only saw Mr. Cooper assist with the clean-up in Building 94's basement on
September 26, 2003, Mrs. Cooper claims that Mr. Cooper was also involved on September 25, 2003. See A WI MSJ,
Ex. D Part I at 33-34; Coopers' Response to A WI MSJ. Mrs. Cooper Affidavit at 2-3 ("Cooper Affidavit").
6
  During her husband's workers' compensation case, Mrs. Cooper testified that she could not remember the exact
date that this occurred, and could only narrow it down to the last week of September 2003. AWI MSJ, Ex. D Part I
at 27; however, in an affidavit dated December 30, 2014, Mrs. Cooper claimed that her husband went to work on
September 25, 2003 and returned later that day with an "an uncontrolled cough [which prevented him from speaking
clearly], a splitting headache, 'burning sinuses."' Cooper Affidavit at 2. This later recollection is at odds with Mr.
Zorger's testimony, given that Mr. Zorger participated in the clean-up on both days, but only saw Mr. Cooper in
Building 94's basement on September 26, 2003.

                                                           3
did not solve the problem, Dr. Gehman gave Mr. Cooper another round of antibiotics, though it
is unclear whether this had any effect, positive or negative, on Mr. Cooper's physical well-being.
AWI MSJ, Ex. D Part I at 27.


        As the weeks and months rolled past, it became increasingly evident that the malady
afflicting Mr. Cooper was far more serious than a simple infection. Mrs. Cooper, as well as their
son and daughter, began to notice that, on occasion, Mr. Cooper would "bizarre[ly] [r]eferO to
one of the children as the wrong gender or something. It was really odd. It was almost like you
weren't hearing the right thing." Id. Mr. Cooper's cognitive problems continued to worsen and,
by November 2003, he was struggling with identifying individuals and "using proper names." As
recalled by Mrs. Cooper, "[h]e would try to explain something and say well, they went there and
they did that. He didn't know who it was; he didn't know where they going. And we just never
heard this before. The kids commented on it. Even our friends commented on it too." Id. These
issues subsequently bled over into Mr. Cooper's work life, and he began to have trouble keeping
track of his schedule at AWi. Id. at 27-28. In response, Dr. Gehman gave Mr. Cooper a
prescription for Paxil, an antidepressant, and scheduled him for an MRI; however, though Paxil
seemed to improve Mr. Cooper's demeanor, it did nothing to help his memory, something
remarked upon by his coworkers, who could not help but notice that Mr. Cooper was
consistently confused and forgetful, even in situations where he was only undertaking routine
tasks. See, e.g., A WI MSJ, Ex. D Part I at 21-22 (testimony from Dennis Keller, a former A WI
employee); id. at 34-35 (testimony from Harold Zorger); id. at 45 (testimony from Matthew
Furman, a former AWI employee); id. at 47-48 (testimony from Gary Benedick, a former A WI
employee). These cognitive lapses ultimately caused Mr. Cooper to have a series of unauthorized
absences from work, prompting AWi to move towards disciplining him in late April 2004. See
Coopers' Supplemental Brief in Support of Response to Defendant Alan J. Hay. M.D.'s Motion
for Summary Judgment at 16 ("Supplemental Brief #1 ");id.at Ex. 5 (Mr. Cooper's AWI
attendance report covering April 23, 2003 through April 23, 2004); id. at Ex. 44 (letter, and
attachments, from AWi's attorney to Workers' Compensation Judge Tina Rago).7



7
  The Coopers claim, in Supplemental Brief#l, that AWI tried to fire Mr. Cooper in January 2004; however, this
averment clearly does not square with Mr. Cooper's attendance report, or the exhibits attached to the AWI attorney's
letter to the Honorable Workers' Compensation Judge Tina Rago, which show that the first unauthorized absence for
                                                         4
         Before A WI could discipline Mr. Cooper, however, Joseph Rumberger, his co-worker
and the President of United Steelworkers Local 285, intervened and arranged to have him looked
at by Dr. Alan Hay, M.D., of Lancaster General Hospital's Department of Occupational
Medicine. Supplemental Brief #1 at 17;8 id. at Ex. 7. According to Dr. Hay, Mr. Cooper's
appointment was scheduled for at least four separate occasions, but Mr. Cooper repeatedly failed
to appear or to notify Dr. Hay that he would not be in attendance. Id. at Ex. 7. Because of this,
Matthew Fuhrman, Mr. Cooper's supervisor at A WI, had to accompany him during his May 13,
2004 visit to Dr. Hay's office. Id.; see also AWI MSJ, Ex. D Part I at 43-44 (noting Fuhrman's
job title at AWi in 2003 and 2004). Dr. Hay evaluated Mr. Cooper on that date, noting that he
"appear[ ed] to have difficulty processing information and coming up with appropriate answers to
specific questions," and opining that Mr. Cooper "definitely need[ed] a psychological assessment
to try and identify the problem and [get] a diagnosis established." Supplemental Brief #1 at Ex.
7. Dr. Hay found that Mr. Cooper had "a general awareness that things are not right at work, that
apparently when he is not doing something right that he has been trained to do[,] others get very
excited[. Mr. Cooper] does not quite understand why they get all upset and excited[,] except that
he is aware that this is not right and that he is the focus of something being wrong." Id. With
regard to treatment, Dr. Hay "got permission verbally from [Mr. Cooper] to talk with Dr.
Gehman ... with the purpose of trying to have [Dr. Gehman] refer [Mr. Cooper] to a specialist for
further evaluation and testing." Id. Dr. Hay shared the contents of this plan with Mr. Fuhrman,
who was then tasked with bringing Mr. Cooper back to the Facility. ld.9 Thereafter, at some


which Mr. Cooper was docked "points" did not occur until January 27, 2004, and state that discharge would not
happen until after an employee had accrued more than 10 such points during a running 12-month period.
8
  The Coopers describe Dr. Hay as A Wl's "panel physician." Supplemental Brief#l at 17; however, it is unclear
what the Coopers mean to suggest by using such a designation (ex. an agency or employee relationship, an
independent contracting arrangement, etc.), nor did the Coopers provide any substantive evidence to flesh out Dr.
Hay's putative title.
9
  Mrs. Cooper claims that she did not learn of her husband's visit to Dr. Hay, or about Dr. Hay's communications
with Dr. Gehman until some point in 2009. CoQPer Affidavit at 4-5; see also AWI MSJ, Ex. J Part I at 70- 71
(deposition testimony from Mrs. Cooper); A WI MSJ, Ex. J Part II at 9-10 (same). This lack of knowledge seems, in
part, to be due to Mr. Cooper's cognitive issues actively impeding his ability to communicate with his wife. See Dr.
Hay's Motion for Summary Judmens Ex. 1 at 8-9 ("Hay MSJ") ("[Dr. Hay's Attorney:] You were not aware
before May 13 of2004 that your husband was seen-had an appointment to see Dr. Hay, correct? [Mrs. Cooper:]
No, I didn't know. Q: And you didn't know on that day that your husband saw a doctor? A: Not till [sic] I think he
came home and said doctor something, but like I said, he was very hard to understand. I don't think I really had any
idea what had happened, you know, he couldn't really describe it, no.").

                                                          5
point in late May, AWi placed Mr. Cooper on disability. A WI MSJ, Ex. D Part I at 19 (testimony
from Robert Mattern, an AWI employee); id. at 28 (testimony from Mrs. Cooper). Subsequently,
Dr. Hay spoke to Dr. Gehman, informing him of Dr. Hay's concerns about Mr. Cooper.
Supplemental Brief#l at Ex. 7. Dr. Gehman responded by referring Mr. Cooper to Dr. Ed
Purzycki, a neuropsychologist; in contrast to his meeting with Dr. Hay, there is no doubt that
Mrs. Cooper contemporaneously knew of, and accompanied, Mr. Cooper to his ensuing
appointment with Dr. Purzycki. A WI MSJ, Ex. D Part I at 28 (testimony from Mrs. Cooper)."


         On June 8, 2004, after being contacted by a disquieted Mr. Fuhrman, Dr. Hay again
reached out to Dr. Gehman, in order to get an update regarding Mr. Cooper's treatment.
Supplemental Brief#l at Ex. 7. Dr. Gehman allegedly told Dr. Hay that he was still waiting to
hear back from Dr. Purzycki, but that such a delay was not unexpected, given that the necessary
neuropsychological tests generally took a decent amount of time to both conduct and interpret.
Id. 11 Dr. Hay then called Mr. Cooper, who allegedly confirmed that he had indeed completed the
aforementioned testing, and that he was frustrated with his current situation. Id. Finally, Dr. Hay
got back in touch with Mr. Fuhrman, expressing his continued worry regarding Mr. Cooper's
mental well-being, as well as his belief that, given Mr. Cooper's state, it would be prudent for
Mr. Fuhrman or one of his associates to actively assist Mr. Cooper and his family, to ensure that
all of the necessary medical leave paperwork was properly completed and filed. Id. Though Dr.
Hay promised Mr. Fuhrman that he would be in touch once he had received additional
information regarding Mr. Cooper's prognosis, id., the case record is devoid of any other
substantive evidence regarding Dr. Hay's involvement with Mr. Cooper, and it appears that Dr.
Hay did not take part in evaluating or treating Mr. Cooper after June 8, 2004.


         What followed throughout the ensuing years was a series of additional referrals and
examinations, as numerous medical professionals in both Lancaster and Philadelphia tried,


10
   It is unclear exactly when this appointment with Dr. Purzycki occurred; however, given Dr. Hay's notes, and the
lack of evidence to the contrary, it is likely that it happened between May 13, 2004 (the date of Mr. Cooper's
appointment with Dr. Hay) and June 8, 2004 (when Dr. Hay reached out to Dr. Gehman for an update). See
Suwlemental Brief#l at Ex. 7 (note dated June 8, 2004 and authored by Dr. Hay).
11
 Inexplicably, neither the Coopers nor the Appellees saw fit to provide this Court with evidence or testimony from
Dr. Gehman, i.e. the other party to this conversation.
                                                         6
without success, to pinpoint the precise etiology of (and appropriately treat) Mr. Cooper's
progressively deteriorating mental condition. See Hay MSJ, Ex. 7 (letter from Dr. V.
Mangeshkumar, M.D., to Dr. Gehman); A WI MSJ, Ex. D Part I at 28-29 (testimony from Mrs.
Cooper); SuRPlemental Brief#!, Ex. 6 (Dr. Paul A. Kettl, M.D. stating that at least five doctors
had "been unable to fully elucidate the cause of [Mr. Cooper's] dementia."); Cooper Affidavit at
6- 7. These efforts were complicated by A WI, which (according to the Coopers) refused to
release critical information regarding Mr. Cooper's chemical exposure history, purportedly
stonewalling their lawyer's repeated requests for such documentation in 2005 and 2006, 12 and
allegedly caused Mr. Cooper's employer-provided healthcare plan to be terminated without his
consent on June 8, 2005. See Coopers' Supplemental Brief in Support of Response to Defendant
AWi's Motion for Summary Judgment at 8-11, Ex. 11 ("Supplemental Brief#2"); Cooper
Affidavit at 6-7.13 Even so, Mrs. Cooper maintained the belief that her husband's affliction was a
direct result of his time with AWi, stating that she had "always suspected some form of toxic
exposure from his workplace[,] because of the sudden onset of his symptoms in the fall of2003."
Hay MSJ, Ex. 8 (letter from Mrs. Cooper to Dr. Gehman); see also id., Ex. 7 (letter from Dr.
Mangeshkumar to Dr. Gehman).


           Indeed, Mrs. Cooper had, by this point, recognized that her husband was irreparably
injured and, accordingly, took steps to protect his long-term physical well-being, as well as their
collective financial and legal interests. According to his wife, Mr. Cooper
           began to be suspicious of the neighbors he kept talking about these people ... I finally
           realized that he was hearing voices and having [auditory] hallucinations[,] because he
           kept saying the people were coming in the house ... He was aggressive with me on one
           occasion. He thought I was keeping something from him. He thought people were living
           in our house [and that they] were stealing the electricity ... [D]uring the electricity
           episode he grabbed me by the throat and pushed me against the wall.

12
   The Coopers claim that AWI's attorney, Jeffrey Sidebottom, Esq., told their lawyer in December 2005 that
"unless there's an active Worker's Compensation claim, [AWI will] not produce any [of Mr. Cooper's workplace
chemical] exposure information." SupplementalBrief #2 at 9. Assuming that Mr. Sidebottom made this statement,
AWI's refusal to release Mr. Cooper's exposure records prior to the Cooper's initiation of legal action flies directly
in the face of Occupational Safety and Health Act's ("OSH Act" or "Act") plain language. See 29 C.F.R. §
 19l0.1020(e)-(D (discussing employers' duty under the Act to provide employees with workplace chemical
exposure and related medical records, and to do so in a timely fashion after such information has been requested by
either an affectedemployee or his designated representative).
13
     According to Mrs. Cooper, this terminationdid not affect Mr. Cooper's receipt of disability or Medicare benefits.
See AWI MSJ, Ex. D Part I at 30.

                                                            7
AWI MSJ, Ex. D Part I at 29. This prompted Mrs. Cooper to seek appointment as her husband's
legal guardian, a request which was granted by the Honorable Jay J. Hoberg of the Court of
Common Pleas, Lancaster County on June 7, 2006, who deemed Mr. Cooper to be "a totally
incapacitated person." Supplemental Brief# 1 at 11, Ex. 15. Mrs. Cooper then had her husband
admitted to Magnolias of Lancaster, "a secure, adult assisted-living residence," where his decline
continued, unabated, despite receiving full-time care from medical professionals. See id.; AWi
MSJ, Ex. D Part I at 29-30.


         Mrs. Cooper coupled these movements with legal action against AWI on behalf of her
                                                                                                             14
husband. On November 17, 2007, Mr. Cooper was examined by Dr. Stephen Gold, M.D.,                                 who
diagnosed Mr. Cooper as suffering from work-related "encephalopathy with subsequent
dementia." Supplemental Brief# 1, Ex. 16. Having now been provided with a medical opinion
linking Mr. Cooper's illness to his time at AWI, Mrs. Cooper responded by filing a worker's
compensation claim petition ("Petition") on December 1 7, 2007, asserting therein that her
husband had been harmed during the course of his employment through "toxic overexposure"
that had caused "encephalopathy with dementia." A WI MSJ, Ex. A. 15


         As the claim process moved forward before the Honorable Workers' Compensation
Judge Tina Rago, the Coopers reiterated their request to A WI, on multiple occasions, that it
release historical data regarding Mr. Cooper's exposure to chemicals in the workplace,
additionally asking for numerous material safety data sheets ("MSDS").                  16   In addition, they asked
for detailed documentation regarding Mr. Cooper's work duties, as well as A WI's Facility safety

14
  Dr. Gold worked for Prudential Financial, who was Mr. Cooper's disability insurance carrier. See Supplemental
Brief#l at 11, Ex. 16.

is This Petition was amended on February 13, 2008, revising the initial cause-and-effect statement to claim that Mr.
Cooper's "chronic exposure to hydrocarbon distillates and halogenated hydrocarbons [had resulted in] irreversible
encephalopathy." AWI MSJ, Ex. B. On September 20, 2008, the Petition was modified a second time, to reflect that
Mr. Cooper had recently been diagnosed with work-related Parkinson's Disease. I.9.,,, Ex. C.
16
  Now called a Safety Data Sheet, an MSDS must be promulgated by a chemical's "manufacturer, distributor, or
importer for each hazardous chemical to downstream users [in order] to communicate information on these
hazards [and] includes information such as the properties of each chemical; the physical, health, and
envirorunental health hazards; protective measures; and safety precautions for handling, storing, and transporting the
chemical." OSHA Brief-Hazard Communication Standard: Safety Data Sheem, Occupational Safety & Health
Administration, February 2012, https://www .osha.gov/Publications/OSHA3 514.html.


                                                          8
and maintenance procedures. See Supplemental Brief#l, Exs. 20-22. Based off of the
substantive evidence provided to this Court, it appears that the Coopers did receive some, or
most, of the sought-after information. See id., Exs. 23-30, 32 (communications between Coopers'
counsel and AWi's counsel); however, on November 13, 2008, AWi notified the Coopers that
"some of the previous [chemical] exposure records had been inadvertently lost or destroyed,"
something which allegedly had not been discovered prior to the Coopers' discovery requests. Id.,
Ex. 32; see also id., Ex. 31 (letter from Brent Davis to Jeffrey Sidebottom, Esq., A WI's lawyer).
A WI attempted to remedy this error by reconstructing these records to some degree, sending the
fruits of these efforts to the Coopers in lieu of the originals, and continuing to search for
additional, relevant information. Id., Ex. 32, 34-37.17


         This claim of irreversible document destruction was later thrown into doubt in late
January 2011 after Paul Heisey, an AWi employee, discovered password-protected chemical
exposure records pertaining to Mr. Cooper on a networked computer hard drive at A Wl.18
Supplemental Brief#l, Ex. 39 at 42-45. The parties disputed the import of these newly-
unearthed records, as the Coopers claimed that their existence incontrovertibly revealed that
A WI had been withholding crucial information, while A WI claimed that they were simply
duplicative of other material that had already been provided to the Coopers. Id. at 48-51, 54-5 5.
Unfortunately, this debate was never ultimately resolved, as Judge Rago ended discovery without
requiring A WI to unlock these files, meaning that the precise nature of their contents remained
unexposed. Sup,plemental Brief# 1 at 21.


         Despite these issues, and the very real possibility that A WI had not been entirely
forthcoming or transparent, this did not stop Mrs. Cooper from learning of Dr. Hay's post-spill
evaluation of Mr. Cooper. At an unspecified point during 2009, Mrs. Cooper discovered that Dr.
Hay had taken part in treating her husband at the behest of his employer and, accordingly,
obtained Dr. Hay's 2004 examination and follow-up notes. See Cooper Affidavit at 5. Mrs.

17
  The parties failed to provide this Court with any of the reconstituted records. As such, this Court is unable to
opine as to the records' substance or sufficiency.

18 Mr. Heisey stated that he discovered the files on "the Tuesday prior to [his] retirement." Supplemental Brief#!,

Ex. 39 at 44-45. As Mr. Heisey retired on February 1, 2008, the previous Tuesday would be January 29, 2008. Id.


                                                           9
Cooper found these notes to be of little substantive value, as they "did not mention a diagnosis o,
cause of [her] husband's mental disability or any mention of brain damage or [her] husband's
toxic exposures at work," id., and ultimately came to believe that Dr. Hay had, in concert with
AWi, purposefully attempted to conceal the source and nature of Mr. Cooper's malady. See AWi
MSJ, Ex. J Part II at 8-19 (testimony from Mrs. Cooper regarding suspicions she had about the
conduct of Dr. Hay and AWi).


           Nor were the Coopers prevented from finally understanding, to some degree of precision,
Mr. Cooper's illness. In February 2008, Dr. Ruben Gur, Ph.D.19 and his team at the University of
Pennsylvania determined, via differential diagnosis, that Mr. Cooper suffered from
"trichloroethylene'<induced brain damage." Reply Memorandum. of Law in Response to the
Supplemental Brief in Support of Plaintiffs' Response to Defendant Alan J. Hay. M.D.'s Motion
for Summary Judgment. and in Further Support of the Motion for Summary Judgment of
Defendant Alan J. Hay. M.D., Ex. D Part I at 4 ("Hay MSJ Supplemental Memo"). Dr. Gur
stated that his "team diagnosed [this] damage using neuropsychological testing, neuropsychiatric
testing, functional neuroimaging and anatomical (structural) neuroimaging," opining that the
"particularized specialties [and] perspectives that [his] team applied were necessary to
determine" the source of Mr. Cooper's affliction. Id. Dr. Gur's assessment was echoed on
September 4, 2008 by Dr. Jack Thrasher, Ph.D.,21 who determined that Mr. Cooper had, over the
course of his career with A WI, been exposed on a regular basis to numerous "halogenated




19
   Dr. Gur is "the Director ofNeuropsychology, the Brain Behavior Laboratory, and the Center for Neuroimaging in
Psychiatry at the University of Pennsylvania Perelman School of Medicine ... [and has] patient, faculty, teaching and
professional responsibilities in the University of Pennsylvania Perelman School of Medicine and at the Hospital at
the University of Pennsylvania as well as the Philadelphia Veterans Administration Medical Center." B,oo
Memorandum of Law in Response to the Suwlemental Brief in SuI!port of Plaintiffs' Response to Defendant Alan
J. Hay, M.D.'s Motion for Summary Judgment, and in Further SuI!port of the Motion for Summary Judgment of
Defendant Alan J. Hay. M.D., Ex. D Part I at 3-4 (affidavit signed by Dr. Gur).
20
  According to the Centers for Disease Control and Prevention, long-term or repeated exposure to trichloroethylene
"may have effects on the central nervous system, resulting in loss of memory." International Chemical Safety Cards
(ICSC}: Trichloroethylene, July 1, 2014, Centers for Disease Control and Prevention, available at
http://www.cdc.gov/niosh/ipcsneng/nen!!008 l.html.
21
     Dr. Thrasher is a toxicologist and immunotoxicologist who produced a toxicology report regarding Mr. Cooper.
See Hay MSJ Supplemental Memo, Ex. D Part II.

                                                          10
hydrocarbons and hydrocarbon distillates ... known neural toxins which cause brain damage,"22                            ,

and that Mr. Cooper's post-spill mental deterioration was proof that he had been stricken by "a
severe toxic encephalopathy." Hay MSJ Supplemental Memo, Ex. D Part II at 12-14. Due to the
severity of Mr. Cooper's symptoms, Dr. Thrasher offered a stark prognosis, stating that Mr.
Cooper's "global deterioration in intellectual and memory functions (dementia) ... may be
irreversible, or [is] at best, poorly reversible." Id. at 13-14. Thereafter, on October 29, 2010, Dr.
Frederick W. Fochtman, Ph.D.,23 issued a report indicating his agreement with Dr. Gur and Dr.
Thrasher, declaring that Mr. Cooper's long-term and acute, spill-related exposure to halogenated
hydrocarbons, hydrocarbon distillates, and solvents had caused demyelination,24 as well as cell
death, within Mr. Cooper's brain, resulting in severe neurological damage and Parkinsonian
symptoms. AWI Reply Brief in Support of Motion for Summary Judgment, Ex. A. at 3-4.25 This
knowledge undoubtedly provided cold comfort to the Coopers, given that, had A WI released the
relevant exposure information within a few years of the Top Foam spill, Mr. Cooper's doctors
would have possibly been able to properly treat his "movement disorder and ... [keep] him at a
functioning level for longer," even if the "underlying pathology and damage may not have
changed significantly" as a result. See AWI MSJ, Ex. D Part II at 39-41 (testimony from Dr.
Timothy Martin, D.O.).




22
    Dr. Thrasher opined that, at the very least, Mr. Cooper had been exposed at AWI to the following ha1ogenated
hydrocarbons and hydrocarbon distillates: Solvesso-Aromatic 150, Vinyl Chloride, Chlorothene, Trichloroethylene,
 l, I, I Trichloroethane Mixture, Tetrachloroethylene, Methylene Chloride, Toluene, Xylene and Trimethylbenzene.
lg,. at 12-13.

23
  Dr. Fochtman is an associate professor of pharmacology and toxicology at Duquesne University, and is the
director ofDuquesne's masters-level program in forensic science and law. See Supplemental Brief#l, Ex. 51.
24
  "Demyelination kills brain cells by dissolving the myelin insulation on the exterior of brain cells. Brain cells act
as 'wires' which conduct electrical signals to nerves, muscles and organs. Myelin is the fatty insulation on the
'wire.' Once the myelin is dissolved, the 'wire' shorts-out and dies." AWI Reply Brief in Su1mort of Motion for
Summary Judgment, Ex. A. at 3.

zs In addition, at least four other doctors either examined Mr. Cooper or reviewed his medical records between June
2008 and November 2010, with all four coming to essentially the same conclusion as Ors. Fochtman, Gold, Gur, and
Thrasher, i.e. that Mr. Cooper had been exposed to hazardous solvents at A WI, which had caused him to be afflicted
by toxic encephalopathy and a Parkinson's Disease-type movement disorder, and that his prognosis was poor. See
Hay MSJ, Ex. IO (June 11, 2008 letter from Dr. Sooja Cho, M.D., to Dr. Gold); kl, Ex. 12 (September 4, 2008 letter
from Dr. Andrew B. Newberg, M.D., to Judge Rago; kl,, Ex. 16 (November l, 20 IO letter from Dr. Rajnish P.
Chaudhry, M.D., to the Coopers' attorney); id., Ex. 17 (November 2, 2010 letter from Dr. Timothy C. Martin, D.O.,
to the Coopers' attorney).

                                                           11
        Even if these belated diagnoses could not effect a reversal of Mr. Cooper's physical
deterioration, they did allow him to successfully prosecute his workers' compensation claim.
Judge Rago held thirteen hearings over the course of nearly four years, in the process reviewing
a copious amount of documentation, physically visiting the Facility and the spill site itself,
hearing testimony from Mr. Cooper's family members, his coworkers, and other former or
current A WI employees, and weighing the learned opinions of numerous medical experts,
including some from AWI who disputed the notion that Mr. Cooper's illness had been caused by
exposure to toxic chemicals at the Facility. See AWI MSJ, Ex. D Parts I and II (Judge Rago's
written decision regarding Mr. Cooper's workers' compensation claim). Ultimately, after
weighing all of the evidence, Judge Rago ruled in favor of Mr. Cooper on June 27, 2012, finding
that he suffered from toxic encephalopathy, which had been caused by a combination of chronic
solvent and chemical exposure while working at AWi, and acute exposure to Top Foam during
the aforementioned September 2003 spill. Id., Ex. D. Part II at 49-50. Accordingly, Judge Rago
awarded Mr. Cooper compensation benefits, calculated from April 23, 2004 onwards (i.e. Mr.
Cooper's last work day at AWi) and minus a "40% credit [to AWIJ for any short or long term
disability benefits received by [Mr. Cooper]," along with statutory interest, attorney's fees, and
litigation costs. Id. at 50-51. In addition, Judge Rago declared that AWI was "responsible for the
payment of any and all medical expenses incurred for the treatment of [Mr. Cooper] which was
reasonable, necessary and related to [his] employment injury." Id. at 50.


        Nearly fourteen months later, on August 22, 2013, the Coopers filed suit in the Court of
Common Pleas, Philadelphia County, naming A WI as the sole defendant, subsequently adding
Dr. Hay as a defendant when they docketed an amended complaint on October 9, 2013. The
Coopers claimed that AWi and Dr. Hay had fraudulently concealed, both separately and
collectively, the full extent of their knowledge regarding Mr. Cooper's job-related exposure to
chemicals, in order "to keep Mr. Cooper and his family from learning critical information-
information AWi has long had ... and still has in its possession-that             would have made an
important positive difference in Mr. Cooper's diagnosis, treatment and prognosis." Amended
Complaint at 1.26 They also argued that this alleged lack of candor had prevented Mr. Cooper's


26
  Additionally, the Coopers theorized that AWI and Dr. Hay had intentionally "deleted or omitted" information
from Dr. Hay's 2004 reports, and that "the results of Dr. Hay's interactions with [Mr. Cooper had been] shared only
                                                        12
"[trichloroethylenej-induced toxic solvent encephalopathy and [trichloroethylene]-induced
Parkinson's disease, [and] other systemic injuries" from being diagnosed in a timely manner or
treated in a proper fashion. Id. at 18-19. Accordingly, the Coopers jointly lodged counts of fraud,
civil conspiracy, and "recklessness" against the Appellees, with Mrs. Cooper claiming, in
addition, that AWi and Dr. Hay27 had, by virtue of their actions, both intentionally and
negligently inflicted emotional distress upon her. Id. at 20-24. In response, both AWi and Dr.
Hay filed preliminary objections on October 28 and 29, 2013, respectively, each of which were
overruled, in full, by the Honorable Mark Bernstein on November 29, 2013. Dr. Hay then filed
an Answer with New Matter on December 30, 2013, while AWi docketed its Answer with New
Matter on January 8, 2014.28


           The parties subsequently conducted discovery over the following months and engaged in
a flurry of motion practice, with the Appellees seeking to transfer the case to Lancaster County,
and Mrs. Cooper requesting that this matter be consolidated with her related wrongful
death/survival suit,29 see Hay Petition to Transfer Pursuant to Pa. R.C.P. 1006(d)(l) at 1-9;
A Wl's Petition to Transfer Pursuant to Pa. R.C.P. 1006(d)(l) at 2-4; Motion to Consolidate.
10/25/14 at 2-4,30 culminating on December 1, 2014 with the filing, by AWi and Dr. Hay, of two
separate motions for summary judgment. Therein, each Appellee asserted that the Coopers' suit




with ... A WI for the purpose of aiding A WI in avoiding liability for [Mr. Cooper's] healthcare costs and for the
purpose of justifying (falsely) [its] terminating [sic] of[his] healthcare coverage." Amended Complaint at 11, 13.
The Coopers also vaguely averred that Mr. Cooper had had "other interactions with Dr. Hay ... [but] that those
records [pertaining to such interactions] may have been destroyed." 19... at 13.
27
  The Coopers specifically stated that they were "IlQ! asserting a professional negligence action against Dr. Hay,"
that "Dr. Hay and [Mr.] Cooper did not have a physician-patient relationship," and that "[a]t no time did [Mr.]
Cooper see Dr. Hay for medical treatment." Amended Complajnt at 2 (emphasis in original).
28
     The Coopers filed replies to Appellees' New Matters on January 13 and 15, 2014.
29
  Tragically, Mr. Cooper passed away on February S, 2014. See Coopers' Memorandum of Law in Sum;,ort of
Response to AWi's Motion for Summey Judgment at 2·3; see also Suggestion of Death, 7/1/14 at I. This prompted
Mrs. Cooper and the Coopers' children to file a wrongful death and survival suit on October 22, 2014 against A WI,
Dr. Hay, and Lancaster General Occupational Medicine in the Court of Common Pleas, Philadelphia County. See
Cooper et al. v. Annstrong World Industries, Inc., et al., October Term 2014, No. 2596.
30
  Judge Bernstein granted this Motion to Consolidate via an order docketed on December 2, 2014. See Bernstein
Order. 11/26/14 at 1.


                                                          13
l   I




        was barred by Pennsylvania's Workers' Compensation Act ("WCA"),31 as well as the applicable,
        statute of limitations, and that this Court should thus enter judgment in the Appellees' respective
        favors. See Memorandum of Law in Support of A WI MSJ at 4-13; Memorandum of Law in
        Support of Hay MSJ at 14-20, 31-32.32 This prompted the Coopers to file a number of jumbled
        and somewhat-duplicative responses on January 2 and 3, 2015, in which they made multi-
        pronged arguments against the Appellees' requests for summary judgment. See Memorandum of
        Law in Support of Response to AWI MSJ at 1-16; Memorandum of Law in Support of Response
        to Hay MSJ at 1-15.33


                 On January 21, 2015, this Court granted both of these motions in part,34 and gave the
        Coopers five days to clarify their arguments by:


        31
          See 77 P.S. § 48 l(a) ("The liability of an employer under this act shall be exclusive and in place of any and all
        other liability to such employes [sic], his legal representative, husband or wife, parents, dependents, next of kin or
        anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined
        in section 30 l(c)(l) and (2) or occupational disease as defined in section 108.").
        32
           AWI also contended that there was no genuine issue of material fact regarding Mrs. Cooper's negligent and
        intentional infliction of emotional distress claims, and that judgment should be granted in its favor on those counts.
        Memorandum of Law in Support of AWi MSJ at 4. Dr. Hay made the same argument regarding all of the Amended
        Complaint's specific claims and, in addition, posited that the Coopers' allegations against him were really rooted in
        medical malpractice, and that their failure to offer an expert report regarding the situational standard of care should
        result in the dismissal of the Coopers' claims against him. Memorandum of Law in Support of Hay MSJ at 20-21.
        33
           The Coopers claimed that summary judgment should not be granted as to AWI because, in essence: l. A Wl's
        Motion for Summary Judgment was "untimely," since the pleadings weren't closed in the lead consolidated case
        (Cooper et al. v. Armstrong World Industries. Inc .• et al., October Tenn 2014, No. 2596); 2. The law of the case
        doctrine precluded a finding that the suit was barred by the Workers' Compensation Act; 3. The duties imposed
        upon A WI by the federal Occupational Safety and Health Administration's ("OSHA") Employee Exposure and
        Medical Records ("EEMR") regulations, 29 C.F.R. § 1910,1020, preempted Pennsylvania's two-year statute of
        limitations pertaining to civil fraud suits; 4. The Cooper Affidavit created a genuine issue of material about when
        Mrs. Cooper learned of Appellees' "fraud"; 5. Affidavits from the Coopers' medical experts created a genuine issue
        of material fact about A WI's OSHA-based duties; The Cooper Affidavit created a genuine issue of material fact
        regarding Mrs. Cooper's alleged reliance on A WI's willingness to give her Mr. Cooper's complete workplace
        chemical exposure records; 7. Mrs. Cooper's deposition testimony about watching her husband suffer from
        September 2003 onwards created a genuine issue of material fact regarding her negligent infliction of emotional
        distress claim; and 8. The duties imposed upon AWI by OSHA 's EE:MR. regulations preempt the Workers'
        Compensation Act. The Coopers aJso made virtually the same challenges against Dr. Hay's Motion for Summary
        Judgment, with the exception of omitting their "law of the case" argument, and maintaining that the Cooper
        Affidavit created a genuine issue of material fact regarding Mrs. Cooper's intentional infliction of emotional distress
        claim against Dr. Hay.
        34
          This Court granted summary judgment for both A WI and Dr. Hay regarding Mrs. Cooper's emotional distress
        claims, and for Dr. Hay only regarding the Coopers' "recklessness" claim. See Ceisler Order, 1/21/15 (AWD at l;
        Cejsler Order. 1121/15 (Hay) at 1.


                                                                   14
        fil[ing] of record a supplemental brief covering or providing the following: a. A coherem,
        detailed timeline of [their] efforts to obtain information from [A WI and Dr. Hay]
        pertaining to [Mr.] Cooper's exposure to [trichloroethylene], backed by cites to the case
        record and specific documentation; b. The specific provisions of 29 C.F.R. § 1910.1020
        that create a private cause of action and preempt the relevant statute of limitations,
        coupled with case law specifically backing this legal argument; and, c. A coherent
        explanation of how [their) remaining claims are not time-barred, when evidence in the
        case record establishes that [the Coopers] were aware of [Mr. Cooper's] exposure to
        [trichloroethylene] no later than February 2008.
Ceisler Order, 1/21/15 (AWi) at I; Ceisler Order, 1/21/15 (Hay) at 1. The Coopers reacted by
submitting supplemental briefs on January 25 and 27, 2015, in which they provided the requested
timeline, and asserted that summary judgment was not warranted under the circumstances
because, allegedly: 1. Mrs. Cooper did not get actual notice of Dr. Hay's or AWI's fraudulent
behavior until late 2011; 2. While 29 C.F .R. § 1910.102035 did not create a private cause of
action, it did impose a duty upon both Appellees to preserve, maintain, and readily off er access36


35 Administrative agency regulations, such as this one, have the force and effect of law by virtue of their publication
in the federal government's Code of Federal Regulations. See Beemus v. Interstate Nat'l, Dealer Svcs., Inc., 823
A.2d 979, 980 (Pa. Super. Ct. 2003). This specific regulation was promulgated by the federal Occupational Safety
and Health Administration ("OSHA") pursuant to its powers under the OSH Act.
36See29C.F.R.
                 § 1910.1020(e)(l):(2)
("Access to records-
        (l) General.
                  (i) Whenever an employee or designated representative requests access to a record, the employer
                  shall assure that access is provided in a reasonable time, place, and manner. If the employer cannot
                  reasonably provide access to the record within fifteen (15) working days, the employer shall
                  within the fifteen (15) working days apprise the employee or designated representative requesting
                  the record of the reason for the delay and the earliest date when the record can be made available.
                  (ii) The employer may require of the requester only such information as should be readily known
                  to the requester and which may be necessary to locate or identify the records being requested (e.g.
                  dates and locations where the employee worked during the time period in question).
                  (iii) Wheneveran employee or designated representative requests a copy of a record, the employer
                  shall assure that either:
                            (A) A copy of the record is provided without cost to the employee or representative,
                            (B) The necessary mechanical copying facilities (e.g., photocopying) are made available
                            without cost to the employee or representative for copying the record, or
                            (C) The record is loaned to the employee or representative for a reasonable time to enable
                            a copy to be made ...

        (2) Employee and designated representative access--
                (i) Employee exposure records.
                         (A) Except as limited by paragraph (t) of this section [pertaining to trade secrets], each
                         employer shall, upon request, assure the access to each employee and designated
                         representative to employee exposure records relevant to the employee. For the purpose of
                         this section, an exposure record relevant to the employee consists of:
                                    (1) A record which measures or monitors the amount of a toxic substance or
                                   harmful physical agent to which the employee is or has been exposed;

                                                           15
to Mr. Cooper's work-related medical records for at least 30 years beyond his last day of
employment at AWI.37 Accordingly, this regulation preempts Pennsylvania's two-year statute of
limitations for civil fraud suits; and 3. Even assuming that such preemption did not occur, this
statute of limitations was tolled until Mrs. Cooper knew the precise nature of Mr. Cooper's
affliction, which occurred only after he was autopsied at some unspecified point in 2014. See
Supplemental Brief #1 at 32-42; Supplemental Brief#2 at 22-32. This prompted additional
replies from both AWI and Dr. Hay, in which they each emphatically stated that the Coopers had
failed to put forth any meritorious arguments in these supplemental briefs, and reiterated their
belief that judgment should be granted in their respective favors. See AWI Reply Brief in
Support of Motion for Summary Judgment at 1-4; Hay Reply Memorandum of Law in Response
to Supplemental Brief# 1 at 1-10.


         Ultimately, after deliberating over the parties' respective arguments, the case record, and
the relevant law, this Court determined that the Coopers' suit was time-barred, granting summary
judgment in favor of both A WI and Dr. Hay regarding the Coopers' remaining claims, doing so
via two orders docketed on February 2, 2015. See Ceisler Order, 1/30/15 (A WI) at 1; Ceisler Order,
1/30/15 (Hay) at 1. In response, the Coopers appealed these decisions to the Superior Court of
Pennsylvania on February 10, 2015.38 That same day, this Court ordered the Coopers to provide a



                                    (2) In the absence of such directly relevant records, such records of other
                                    employees with past or present job duties or working conditions related to or
                                    similar to those of the employee to the extent necessary to reasonably indicate
                                    the amount and nature of the toxic substances or harmful physical agents to
                                    which the employee is or has been subjected, and
                                    (3) Exposure records to the extent necessary to reasonably indicate the amount
                                    and nature of the toxic substances or harmful physical agents at workplaces or
                                    under working conditions to which the employee is being assigned or
                                    transferred.
                           (B) Requests by designated representatives for unconsented access to employee exposure
                           records shall be in writing and shall specify with reasonable particularity:
                                    (1) The records requested to be disclosed; and
                                    (2) The occupational health need for gaining access to these records.").
37 With some exceptions, employers must "assure the preservation and retention of ... [e]mployee medical records ...
[e]mployee exposure records ... [and] analyses [done through the use ot] exposure or medical records ... for at least
thirty (30) years." I& at 19 l0.1020(d)(l)(i).(Hi).
38
  For reasons unknown, the Coopers filed four separate appeals in this case on February 10, 2015, some of which
are duplicative. None of these appeals, however, challenged this Court's January 21, 2015 orders, the substance of
which is discussed in Note 34, supra. Thus, the Coopers' appeals only challenge this Court's decision to grant

                                                          16
!




    Statement of Errors pursuant to Pa. R.A.P. 1925(b). Ceisler Order. 2/10/15 at 1. The Coopers.
    response was received by this Court on March 2, 2015, and is attached to this opinion as Appendix
    A.


    II.     DISCUSSION
               This Court respectfully requests that the instant appeals be denied for the following
    reasons:
               1. The OSH Act does not preempt state law-based statute of limitations governing fraud
            (and related conspiracy) claims;
            2. Under Pennsylvania law, the Coopers were required to file suit within two years of
            being capable, through the exercise of reasonable diligence, of knowing that they
            potentially had a cause (or causes) of action against the Appellees;
               3. Viewing the record in the light most favorable to the Coopers, this Court determined
            that there was no genuine issue of material fact that November 2, 2010 was the last
            possible date upon which the Coopers could be deemed to have enough information,
            when coupled with such diligence, to ascertain that they had grounds for filing a fraud
            and conspiracy-based suit against Appellees, meaning that the statute of limitations began
            to run no later than that date;
            4. As the Coopers failed to file such an action until August 22, 2013, or roughly ten
            months after the statutory window had closed, their suit was thus time-barred.


            Under Pennsylvania law, a trial court may grant a party's motion for summary judgment
    when "there is no genuine issue of material fact as to a necessary element of the cause of action
    or defense which could be established by additional discovery or expert report." Pa. R.C.P.
    1035.2(1). In addition, such a motion can be granted in situations where "an adverse party who
    will bear the burden of proof at trial has failed to produce evidence of facts essential to a cause of
    action or defense in which a jury trial would require the issues be submitted to a jury." Id. at
    1035.2(2). That having been said, the court's sole function when addressing a motion for
    summary judgment is to determine whether there is a genuine issue of material fact to be tried,


    summary judgment in favor of both Defendants regarding the Coopers' fraud and civil conspiracy counts, and for
    AWI as to the Coopers' independent claim of"recklessness."

                                                           17
rather than to decide issues of fact. Fine v. Checcio, 870 A.2d 850, 862 (Pa. 2005). To that end, ~
trial court must resolve all doubts against the movant, examining the case record in the light most
favorable to the nonmoving party, and "may grant summary judgment only where the right to
such a judgment is clear and free from doubt." Id. at 857 (citation omitted). Accordingly, this
Court evaluated Appellees' motions for summary judgment through the lens of this stringent
standard.


         Normally, the WCA would have precluded the Coopers from filing suit against A WI and
its agents, since it is "the sole and exclusive remedy for an employee who seeks to recover for an
injury sustained during the course of his ... employment." Snyder v. Pocono Med. Ctr., 656 A.2d
534, 536 (Pa. Super. Ct. 1995) (citing Wagner v. National Indemnity Co., 422 A.2d 1061, 1064
(Pa. 1980)). The WCA represents a compromise of sorts, which
         limits an employer's tort exposure and grants an employee a statutory remedy for all
         work related injuries. In exchange for the right to compensation without the burden of
         establishing fault, employees gave up their right to sue the employer in tort for injuries
         received in the course of employment. An employer must assume liability under the Act
         regardless of fault in exchange for insulation from a potentially larger verdict in a
         common law action. Where an employee's injury is compensable under the Act, the
         compensation provided by the statute is the employee's exclusive remedy.
Soto v. Nabisco, Inc., 32 A.3d 787, 791 (Pa. Super. Ct. 2011) (quoting Snyder, 656 A.2d at 536-
37); see 77 P.S. § 481(a).39


         However, the Pennsylvania Supreme Court has seen fit to craft an extremely narrow
exception to this rule, which allows an employee to file a common law-based suit against his
employer in situations where he can show that the employer has made some sort of fraudulent
misrepresentation, which then leads to the aggravation of the employee's pre-existing condition.
Martin v. Lancaster Battery Co., 606 A.2d 444, 448 (Pa. 1992).40 The "misrepresentation can


39
  The liability of an employer under this act shall be exclusive and in place of any and all other liability to such
employes [sic], his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise
entitled to damages in any action at law or otherwise on account of any injury or death as defined in [77 P .S. §
411(1) and (2)) or occupational disease as defined [77 P.S. § 27.1].
40
  See Mfil:tin, 606 A.2d at 447-48 ("Clearly, when the Legislature enacted the [WCA] in this Commonwealth, it
could not have intended to insulate employers from liability for [such] flagrant misconduct ... by limiting liability to
the coverage provided by the [WCA].").


                                                           18
take many forms[, as J fraud consists [ of] anything calculated to deceive, whether by single act oi.
combination, or by suppression of truth, or a suggestion of what is false, whether it be direct
falsehood or by innuendo, by speech or silence, word or mouth, of look or gesture. It is any
artifice by which a person is deceived to his disadvantage." Scaife Co. v. Rockwell-Standard
Corp., 285 A.2d 451, 454 (Pa. 1971) (quoting In re Reichert's Estate, 51 A.2d 615, 617 (Pa.
1947)). In order
        to prove fraud, a plaintiff must demonstrate by clear and convincing evidence: (1) a
        representation; (2) which is material to the transaction at hand; (3) made falsely, with
        knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent
        of misleading another into relying on it; (5) justifiable reliance on the misrepresentation;
        and (6) the resulting injury was proximately caused by the reliance. Unsupported
        assertions and conclusory accusations cannot create genuine issues of material fact as to
        the existence of fraud.
Hart v. Arnold, 884 A.2d 316, 339 (Pa. Super Ct. 2005) (quoting Blumenstock v. Gibson, 811
A.2d 1029, 1034 (Pa. Super. Ct. 2002)). Thus, a great onus is placed upon an employee who
attempts to thread this needle, and our courts have not hesitated to dismiss a common law suit, or
enter judgment for an employer, where an employee has failed to satisfy his high evidentiary
burden. See, e.g., Kostryckyj v. Pentron Lab. Technologies. LLC, 52 A.3d 333, 340 (Pa. Super
Ct. 2012) (affirming trial court's grant of summary judgment in favor of employer because
Appellants "failed to present any evidence that [the employer) intended to mislead [the
employee] or deliberately misrepresented the dangers of beryllium to induce [the employee] to
continue working for [the employer]."); id. at 339 (listing string of cases which were dismissed
at various stages of litigation for failing to satisfy the Martin standard).


        When seeking to avail himself of this exception, and regardless of whether he actually
presents a viable claim that falls within the exception's ambit, an employee must still comply
with the relevant statute of limitations by filing suit in a timely fashion. Generally speaking, such
statutes should be strictly applied, and "are designed to effectuate three purposes: (1)
preservation of evidence; (2) the right of potential defendants to repose; and (3) administrative
efficiency and convenience," Kingston Coal Co. v. Felton Min. Co., 690 A.2d 284, 288 (Pa.
Super. Ct. 1997) ( citations omitted). Accordingly, a statute of limitations "begins to run as soon
as the right to institute and maintain a suit arises; [a person's] lack of knowledge, mistake or
misunderstanding do not toll the[ir] running ... even though [he] may not discover his injury until

                                                   19
it is too late to take advantage of the appropriate remedy." Pocono Int'l Raceway. Inc. v. Poconc
Produce. Inc., 468 A.2d 468, 471 (Pa. 1983). This reflects the notion that "a party asserting a
cause of action is under a duty to use all reasonable diligence to be properly informed of the facts
and circumstances upon which a potential right of recovery is based[,] and to institute suit within
the prescribed statutory period." Id.


        Nonetheless, a court may, in certain instances and for equitable purposes, decline to
enforce a statute of limitations with such rigidity, taking into account a party's inability to
discern, in a timely manner, the source or existence of the harm visited upon him, or the effect of
obstruction on an individual's efforts to ascertain the root of his injury. In the former scenario,
the discovery rule "exclude[s] from the running of the statute of limitations that period of time
during which a party[,] who has not suffered an immediately ascertainable injury[,] is reasonably
unaware he has been injured, so that he has essentially the same rights as those who have
suffered such an injury." Fine, 870 A.2d at 858. In the latter, the doctrine of fraudulent
concealment tolls the statute of limitations "if through fraud or concealment, [a defendant has]
cause[ d] the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts,"
estopping the defendant from asserting such a defense relating to the time period during which
the fraud occurred. Id. at 860. Though this doctrine "does not require fraud in the strictest sense
encompassing an intent to deceive, but rather, fraud in the broadest sense, which includes an
unintentional deception ... [a party must still] prov[e that] fraudulent concealment [has occurred]
by clear, precise, and convincing evidence." Id. "Moreover, in order for fraudulent concealment
to toll the statute of limitations, the defendant must have committed some affirmative
independent act of concealment upon which the [injured party] justifiably relied." Kingston, 690
A.2d at 291 (citing Krevitz v. City of Philadelphia, 648 A.2d 353, 357 (Pa. Cmwlth. Ct. 1994)).


        Despite these differences, neither the discovery rule nor the fraudulent concealment
doctrine can be invoked by a party who has not exercised reasonable diligence41 in learning, or


41
  Reasonable diligence is viewed in an objective manner, and "a party's actions are evaluated to determine whether
he exhibited 'those qualities of attention, knowledge, intelligence and judgment which society requires of its
members for the protection of their own interest and the interest of others.'" Fine, 870 at 858 (quotingCrouse v.
Cyclops Industries, 745 A.2d 606, 611 (Pa. 2000)).


                                                        20
seeking to learn, "that he is injured and by what cause." Fine, 870 A.2d at 858, 861; see Wilson,
v. El-Daief, 964 A.2d 354, 363 (Pa. 2009) ("The suggestion that a plaintiff need not know that a
defendant's conduct is injurious is true, to the extent that the plaintiff has failed to exercise
diligence in determining injury and cause by another, but has limited relevance in scenarios in
which the plaintiff has exercised diligence but remains unaware of either of these factors.");
Scranton Gas & Water Co. v. Lackawanna Iron & Coal Co., 31 A. 484, 485 (Pa. 1895) ("The
question in any given case is not, what did the plaintiff know of the injury done him[,) but[] what
might he have known, by the use of the means of information within his reach, with the vigilance
the law requires ofhim?");42 Baselice v. Franciscan Friars Assumption BVM Province. Inc., 879
A.2d 270, 276 (Pa. Super. Ct. 2005) (quoting Haggart v. Cho. 703 A.2d 522, 526 (Pa. Super. Ct.
1997)) ("The statute begins to run in such instances when the injured party 'possesses sufficient
critical facts to put him on notice that a wrong has been committed and that he need investigate
to determine whether he is entitled to redress.'"). Indeed, the statute of limitations can be deemed
to have run, even in instances where a party does "not know the precise ... cause of [their]
injury ... [does] not apprehend that [the party who injured them] was negligent. .. and [does] not
understand [that they] have a cause of action." Wilson, 964 A.2d at 364 n. 10 (citations omitted).


         Turning to the matter at hand, the Coopers challenge this Court's February 2, 2015
orders, which served to grant summary judgment in favor of both Appellees regarding the
Coopers' fraud and civil conspiracy claims, and for A WI as to the Coopers' claim of
"recklessness." See Ceisler Order 1/21/15 (A WO, at I; Ceisler Order 1/21/15 (Hay), at 1; Ceisler
Order 1/30/15 (A WI), at 1; Ceisler Order 1/30/15 (Hay), at 1. Under Pennsylvania law, each of
these claims is governed by the same statute of limitations, which gives a party two years from
the date of injury to initiate a suit based upon such arguments. See 42 Pa. C.S. §§ 5524(2). (7).43


42
   It is normally the jury's role to determine whether a party has exercised reasonable diligence under the
circumstances. See  m,      870 A.2d at 858, 861 (Pa. 2005). Thus, it is "[ o]nly where the facts are so clear that
reasonable minds could not differ ... [that] a court [may] determine as a matter of law[,] at the summary judgment
stage, the point at which a party should have been reasonably aware of his or her injury and its cause[,] and thereby
fix the commencement date of the limitations period." Gleason v. Borough of Moosic, 15 A.3d 479, 485 (Pa. 2011).
43
  "It is well-settled that the statute of limitations for conspiracy is the same as that for the underlying action which
forms the basis of the conspiracy." Kingston, 690 A.2d at 287 (citing A.mmlun~ v. Cin, of Chester. 494 F.2d 811,
814-815 (3d. Cir.1974)). In addition, "[r]ecklessness, or willfulness, or wantonness refers to a degree of care [Dean]
Prosser describes as 'aggravated negligence.' Nevertheless, [these terms] apply to conduct which is still, at essence,
negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is to be

                                                           21
The Coopers argue that 29 C.F.R. § 1910.1020 overrides this time limit, due to the supremacy oi-
federal law, and extends the deadline for filing suit through May 2034. See, e.g., Supplemental
Brief#l at 39~40; Statement of Errors at 2; however, this contention is completely without merit
for several reasons. 44 First, the OSH Act neither expressly preempts Pennsylvania statutory or
common law. Kiak v. Crown Equip. Corp., 989 A.2d 385, 391 (Pa. Super. Ct. 2010) (quoting 29
U.S.C. § 653(b)(4)). Second, it is well-settled that the Act's "purpose ... is preventive rather than
compensatory" and, as admitted by the Coopers themselves,45 it "does not create a private cause
of action against an employer for a violation [thereof]," see Ries v. Nat'l R.R. Passenger Corp.,
960 F.2d 1156, 1164 (3d Cir. 1992) (citing numerous federal cases), meaning that the OSH Act
certainly does not establish, in any capacity, a congressional intent to occupy the field of tort
law. Finally, there is no conflict between 29 C.F.R. § 1910.1020 and the aforementioned two-
year statute of limitations, since the former tasks employers with ensuring that their employees
can access certain records throughout most or all of their lifetimes, which the latter does not
impede by merely establishing the time window within which someone must file suit. Thus, the
question before this Court was whether there was a genuine issue of material fact regarding
whether the Coopers had filed their suit within two years of when they could have known,
through reasonable diligence, of what they claim was A WI's and Dr. Hay's intentionally or
recklessly tortious conduct.


         In support of their effort to defeat the aforementioned summary judgment motions, the
Coopers attempted to rebut the Appellees' statute of limitations argument by raising both the
discovery rule and the fraudulent concealment doctrine, in essence maintaining that there are


treated in many respects as if it were so intended ... Therefore, merely determining the degree of care is recklessness
does not give rise to a separate tort that must have been pied within the applicable statute of limitations." Archibald
y. Kemble, 971 A.2d 513, 519 (Pa. Super. Ct. 2009) (citations and quotation marks omitted).

44
  "There are three ways in which a state law may be preempted. First, state law may be preempted where the United
States Congress enacts a provision which expressly preempts the state enactment. Likewise, preemption may be
found where Congress has legislated in a field so comprehensively that it has implicitly expressed an intention to
occupy the given field to the exclusion of state law. Finally, a state enactment will be preempted where a state law
conflicts with a federal law. Id. Such a conflict may be found in two instances, when it is impossible to comply with
both federal and state law, or where the state law 'stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress."' Office of Disciplinary Counsel v. Marcone, 855 A.2d 654, 664 (Pa.
2004) (citations omitted).
45
  See Supplemental Brief#! at ("29 C.F.R. 1910.1020 does not provide a private right ofaction. Nor
do [the Coopers] assert a claim pursuantto ... 29 C.F.R. 1910.1020.").

                                                           22
genuine issues of material fact as to whether the filing window was tolled, and whether their suit
was thus initiated in a timely fashion. First, they claimed that it was not possible to ascertain the
precise nature of Mr. Cooper's injuries until he was autopsied at some point in 2014. See
Statement of Errors at 2; Supplemental Brief#! at 40-41. Second, they argued that "AWI and
Hay conspired in a series of [still ongoing] fraudulent acts, intentional omissions, and deliberate
[record] destruction," which (depending on which of the Coopers' filings one happens to be
reading) prevented Mrs. Cooper from learning of AWI's alleged duplicity until October 2011 or
December 2011 and, independent of the federal preemption argument, continues to toll the
statute of limitations. See Memorandum of Law in Summrt of AWi MSJ at 7; Su12plemental
Brief# 1 at 40-41 ; see also Statement of Errors at 2.


            Unfortunately, neither of these arguments provided a sufficiently substantive counter to
the Appellees' requests for relief. Regarding the former, actual notice of an injury via a perfect,
or nearly perfect, diagnosis is not required for a relevant statute of limitations to run, and a lack
thereof does not, in itself, toll the period for filing suit; thus, the fact that Mrs. Cooper may not
have known the exact nature of Mr. Cooper's malady until after his post-mortem examination is
irrelevant, especially when the Coopers were aware as early as September 25, 2003 (i.e. the date
of the Top Foam spill), and no later than Dr. Martin's November 2, 2010 assessment letter to the
Coopers' attorney (which itself merely reinforced the diagnoses offered by Drs. Chaudhry, Cho,
Fochtman, Gold, Gur, Newberg, and Thrasher), that Mr. Cooper had sustained a serious injury
due to "occupational solvent exposure."46 As to the latter, though the Coopers claimed that both
AWI and Dr. Hay fraudulently withheld (and continue to withhold) critical documentation
regarding Mr. Cooper's workplace exposure to chemicals, whatever merit this argument may
have is undermined by a triumvirate of details: First, the Coopers requested these exposure
records as early as December 2005, only to be refused by A WI, even though the OSH Act
explicitly requires employers to provide such documentation, upon request, to affected
employees;47 second, Mrs. Cooper became aware in 2009 that Dr. Hay had assessed Mr. Cooper


46
  Moreover, and as noted above, given the WCA's near-blanket prohibition against common law actions based
upon workplace injuries, the injuries allegedly caused to Mr. Cooper by the Top Foam spill, standing alone, could
not form the foundation of a permissible suit.
47
     See note 3 6, supra.

                                                        23
during a May 2004 office visit, allegedly doing so without her knowledge, and had not provided·
either of the Coopers with his related notes during the intervening time; third, between
November 17, 2007 and November 2, 2010, the Coopers were informed by no less than eight
separate doctors that Mr. Cooper suffered from work-induced toxic encephalopathy and
dementia. Thus, even when viewing the case record in the light most favorable to the Coopers, it
is evident that they gained actual or constructive notice, at various points between late 2005 and
late 2010, that: 1. AWI had violated the OSH Act by denying their initial, pre-Petition requests
for Mr. Cooper's chemical exposure history, and had therefore prevented the Coopers from
obtaining such information in a timely manner; 2. Dr. Hay's involvement in this matter had been
hidden from Mrs. Cooper for roughly five years after Mr. Cooper's 2004 office visit; and 3. Mr.
Cooper's progressively deteriorating state, on both a mental and physical level, was inextricably
linked to his participation in the Top Foam spill cleanup, as well as to decades of chronic
exposure to solvents and other chemicals at the Facility. Accordingly, this Court determined that
there was no genuine issue of material fact as to the latest possible date upon which the Coopers
knew, or should have known, each of these facts, and thus be put on notice of the Appellees'
allegedly fraudulent and conspiratorial conduct: November 2, 2010 (i.e. the date of Dr. Martin's
letter).


           Given this, and in light of the aforementioned two-year statute of limitations, the Coopers
were required to file their suit no later than November 2, 2012. Since the Coopers did not sue the
Appellees until August 22, 2013, or nearly ten months beyond this deadline, their action was thus
time-barred. As such, this Court properly granted each of the Appellees' respective Motions for
Summary Judgment.




                                                   24
III.      CONCLUSION
          For the aforementioned reasons, this Court respectfully requests that the instant appeals be
denied.


                                                        BY THE COURT:




                                                                                              J.




                                                  25
APPENDIX A




     26
SANDRA COOPER, IN HER OWN RIGHT, AND AS
PLENARY GUARDIAN OF GENE M. COOPER, AND
AND GENE M. COOPER

       PLAINTIFFS                                               No. 02452

              v.
                                                                JURY TRIAL DEMANDED
ARMSTRONG WORLD INDUSTRIES, INC. AND
ALAN J. HAY, M.D., AND LANCASTER GENERAL
OCCUPATIONAL MEDICINE

       DEFENDANTS

SANDRA COOPER, IN HER OWN RIGHT,
AND AS ADMINISTRATRIX OF THE                                    CIVIL ACTION - LAW
ESTATE OF GENE M. COOPER,

       PLAINTIFFS                                               OCTOBER TERM, 2014

vs.                                                             No. 02596

ARMSTRONG WORLD INDUSTRIES, INC.,                               JURY TRIAL DEMANDED
ALAN J. HAY, M.D., AND LANCASTER
GENERAL OCCUPATIONAL MEDICINE

       DEFENDANTS

            Pa.R.A.P. 1925(b) Concise Statement oflssues Complained of on Appeal


COMES Plaintiffs/Appellants pursuant to the Order entered January 30, 2015, and attached hereto

as Exhibits 1 - 4, inclusive, and Pa.R.A.P. 1925(b) to respectfully file the herein Concise

Statement of Matters Complained of on Appeal:



I.     Concise Statement oflssues Complained of on Appeal:




                                                                              Case ID: 130802452
   A.      Whether a genuine issue of material fact exists in regard to Plaintiffs' notice of

           Defendants' fraud in February, 2008.

   B.      Whether Defendants' fraud continued from 2008 through to December, 2014, thereby

           tolling the two-year statute of limitations for Fraud to December, 2016.

   C.      Whether Defendants' fraud continued from 2008 through to February 6, 2015, thereby

           tolling the two-year statute of limitations for Fraud to February 6, 2017.

   D.      Whether Plaintiffs-decedent's partial diagnosis of a brain injury in February, 2008

           triggered the statute of limitations as to defendants' fraud to conceal the cause of

           Plaintiffs-decedent's brain damage.

   E.      Whether Plaintiff, Sandra Cooper's Affidavit raised a genuine issue of material fact in

           regard to Plaintiffs' notice of Plaintiffs-decedent's injury in February, 2008.

   F.      Whether the Trial Court erred by applying the two-year statute of limitations for Fraud

           to defendants' acts that occurred in February and December, 2014 and February, 2015.

   G.      Whether the two-year statute of limitations for Fraud was tolled by Plaintiffs-

           decedent's protections pursuant to 29 C.F.R. 1910.1020 and 35 P.S. §§ 7301-7320.

   H.      Whether Dr. Fredrick Fochtman's Affidavit raised a genuine issue of material fact in

           regard to whether the two-year statute of limitations for Fraud was tolled by Plaintiffs-

           decedent's protections pursuant to 29 C.F.R. 1910.1020 and 35 P.S. §§ 7301-7320.

Respectfully submitted:

Isl George Chada, Esq.

Law offices of George Chada
221 Summit Drive
Natrona Heights, PA 15065-9710
412 370 8780
gchada@chadalaw.com




                                                                                     Case ID: 130802452
            IN THE COURT OF COMMON PLEAS OF PHILADELPHIA                      COUNTY
                                   FIRST JUDICIAL DISTRICT
                                     CIVIL TRIAL DIVISION

SANDRA COOPER, IN HER OWN RIGHT, AND AS
PLENARY GUARDIAN OF GENE M. COOPER, AND                              AUGUST TERM, 2013
AND GENE M. COOPER

       PLAINTIFFS                                                    No. 002452

               v.
                                                                     JURY TRIAL DEMANDED
ARMSTRONG WORLD INDUSTRIES, INC. AND
ALAN J. HAY, M.D., AND LANCASTER GENERAL
OCCUPATIONAL MEDICINE

       DEFENDANTS

SANDRA COOPER, IN HER OWN RIGHT,
AND AS ADMINISTRATRIX OF THE                                         CIVIL ACTION - LAW
ESTATE OF GENE M. COOPER,

       PLAINTIFFS                                                   OCTOBER TERM, 2014

vs.                                                                 No. 02596

ARMSTRONG WORLD INDUSTRIES, INC.,                                   JURY TRIAL DEMANDED
ALAN J. HAY, M.D., AND LANCASTER
GENERAL OCCUPATIONAL .MEDICINE

       DEFENDANTS

                                       Certificate of Service
The undersigned hereby certifies that pursuant to Pa.R.C.P. 2054(0), a true and correct copy of the

herein Plaintiffs' IAppellants' Pa.R.A.P. 1925(b) Concise Statement of Issue Complained of on

Appeal was served on February 25, 2015 by email as set forth below and the undersigned further

hereby certifies that all unrepresented parties will be served in accordance with Pa.R.C.P. 440:

The Honorable Eileen Ceisler
City Hall, Room 229B
Philadelphia, PA 19107




                                                                                    Case ID: 130802452
Counsel for Defendant, Brenntag Northeast, Inc.
Montgomery, McCracken, Walker, Rhoads, LLP.
Attn: R. Hurst, Esq.
123 South Broad Street
Avenue of the Arts
Philadelphia, PA 19109

Attorney for Defendant, Armstrong World Industries, Inc.:
Barley Snyder
Attn: George C. Werner, Esq.
126 East King Street
Lancaster, PA 17602

Attorney for Defendant, Alan C. Hay, M.D.:
Eckerd Seamans Cherin & Mellott, LLC
Attn: Eileen Lampe, Esq.
Two Liberty Place
50 South 16th Street, 22nd Floor
Philadelphia, PA 19102

Isl George Chada, Esq.




                                                            Case ID: 130802452
Exhibit 1




            Case ID: 130802452
                                              Fl.ED
                                           01 DEC 2014 10104 pm
                                        ClvUAdmlnlatrlllon
                                           A. WARRBN



               SANDRA COOPER in her Own Rlght and
               as Plenary Guardian of GENE M. COOPER          Court of Common Pleas
               and GENE M. COOPER,
                                                              Philadelphia County, Pennsylvania
                                            Plaintiffs
                    v.                                        August Term, 2013

               ARMSTRONG WORLD INDUSTRIES,                    No: 24.52
               ETAL.,                                                                              OOCMETl!D
                                            Defendants                                             FEB O 2 2015
                                                                                                         F,CLARK
                                                                                                       DAY FORWARD
                                       +
                                     ~ of ~~
                    AND NOW, this:Dtay
                                                                ,s-
                                                            2ol( upon consideration of Motionfor
             Summary Judgment of Defendant,Alan . Hay, M.D., and any response thereto, it is hereby,
             ORDERED, that said Motion is GRANTED.

                   It is further ORDERED that the Amended Complaint is DISMISSED as against Dr. Hay,

             WITH PREnJDICE.

                                                              BY THE COURT:




                                                                                   • J.




                                                                                          1111111111111111111111111
                                                                                               14100259600032


                                                                                              Case ID: I 30802452
                                                                                            Control No.: 14120375
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) F. BROWN-CLARK 02/06/2015




                                                                                                       Case ID: 130802452
Exhibit 2




            Case JD: 130802452
                                                      FILED
                                               01 DBC 2014 10s04          pm
                                           CMIAdmlnl*IIIOn
                                               A.     KARREN



              SANDRA COOPER in her Own Right and
              as Plenary Guardian of GENE M. COOPER                Court of Common Picas
              and GENE M. COOPER,
                                                                   Philadelphia County, Pennsylvania
                                                    Plaintiffs
                   v.                                              August Term, 2013

              ARMSTRONG WORLD INDUSTRIES,                          No: 2452
              ETAL.,                                                                                       OOCKETBO
                                                  Defendants                                               FEB O 2 2015
                                                                                                             F.CLARK
                                                                                                           DAY FORWARD
                                          + \,.
                                   '1 "'"I\.           ~ORDER        I~
                   AND NOW, this,1.tiay of                       , 2ol( upon consideration of Motion/or

            Summary Judgment of Defendant, Alon . Hay, MD., and any response thereto, it is hereby,

            ORDERED, that said Motion is GRANTED.

                  It is further ORDERED that the Amended Complaint is DISMISSED as against Dr. Hay,

            WITH PREJUDICE.

                                                                   BY TIIE COURT:




                                                                                        • J.




                                                                                               Cooper Etat Vs Armstron-ORDER



                                                                                               l lf 11111111111111111 IU II
                                                                                                       13060245200119

                                                                                                       Case ID: 130802452
                                                                                                  Control No.: 14120375
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) F. BROWN-CLARK 02/06/2015




                                                                                                           Case ID: 130802452
                                                   FILED
                                              01 DZC 2014 04:41 pm
l    !                                       ClvRAdmird&IJIIIOn
                                              S. MACQRIGOR




                 SANDRA COOPER in her Own Right and                   TN THE COURT OF COMMON PLEAS OF
                 & as Plenary Guardian of GENE M.                     PHILADELPHIA COUNTY, PENNSYLVANIA
                 COOPER, and GENE M. COOPER
                               Plaintiffs,                       , TERM AUGUST 2013
                                                                  .
                      vs.                                         1   No. 2452
                                                                  .                                       DOCKETED
                 ARMSTRONG WORLD INDUSTRIES,
                 et al.,                                        ...                                       H.B O 2 /~15
                            Defendants.
                                                                                                              F.CLARK
                                                                                                           DAY FORWARD
                                         .    +~              ORDER                      IS-
                        AND NOW,      wZQ. day of ~                                   , :zo:t'4, upon consideration of

                 Armstrong World Industries, Inc. 's ~                       Judgment and any response thereto,

                 this Court hereby GRANTS Armstrong World Industries, Inc. 's Motion and enters judgment in

                 favor of Armstrong World Industries, Inc. and against Plaintiffs.




                                                              BY~a__                                 }.
                                                                                                             -----..




                                                                                               Cooper Eta! Vs Armstron-ORDER



                                                                                               Hllll13080245200120
                                                                                                    1111111 IfBllf       Ii JI
                                                                                                          Cast: ID: 130802452
                                                                                                      Control No.: 141206~ I
    COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) F. BROWN-CLARK 02106/2015




                                                                                                               Case ID: 130802452
Exhibit 4




            Case ID: 130802452
                                                  FILED
 l
.!
                                           S , MACGRllQOR




                                                              .
              SANDRA COOPER in her Own Right and             j IN THE COURT OF COMMON PLEAS OF
              & as Plenary Guardian of GENE M.               j    PHILADELPHIA COUNTY.PENNSYLVANIA
              COOPER, and GENE M. COOPER
                               Plaintiffs,                   j    TERM AUGUST 2013
                                                             .
                        vs.                                  i    No. 2452
                                                                                                        DOCKETED
              ARMSTRONG WORLD INDUSTRIES,
              et al.,                                        ''
                                 Defendants.                  '                                         F£B O 2 7.015
                                                                                                             f.CLARK
                                                                                                         OAYFORWARO

                                           -'"~           ORDER                    IS-
                         AND NOW, thiZQ. day of _..;,c.~~=-----"                  2~. upon consideration of

              Annstrong World Industries, Inc.'s Motion or Summary Judgment and any response thereto,

              this Court hereby GRANTS Armstrong World Industries, Inc, 's Motion and enters judgment in

              favor of Armstrong World Industries. Inc. and against Plaintiffs.




                                                                                         Cooper !t11V,,Annl1nmgWOttd !-. I-ORO£R




                                                                                                 11101111111111
                                                                                         IIIIIHI14100259600033
                                                                                                    Case JD: 130802452
                                                                                                  Control No.: 14120621
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) F. BROWN·CLAAK 02/06/2015




                                                                                                            Case ID: 130802452
