                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-19-2004

Sheridan v. Cabot Corp
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1984




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                                                       NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                          __________

                              No. 03-1984
                              __________

                       SHIRLEY G. SHERIDAN
                                        Appellant,

                                   v.

   CABOT CORPORATION, Individually and as Successor in Interest to
CABOT BERYLCO, INC., KAWECKI BERYLCO INC., a/k/a KBI KAWECKI
  BERYLCO INDUSTRIES, INC., THE BERYLLIUM CORPORATION,

                              __________

             On Appeal from the United States District Court
                For the Eastern District of Pennsylvania
                        (Civ. A. No. 02-cv-01212)
              District Judge: Honorable Harvey Bartle, III
                               __________

              Submitted Under Third Circuit L.A.R. 34.1(a)
                         September 28, 2004
                            ___________

          Before: ROTH, BARRY, and GARTH, Circuit Judges

                   (Opinion Filed: October 19, 2004)
                             __________

                               OPINION
                              __________
Garth, Circuit Judge:

       Shirley G. Sheridan, the plaintiff, has brought this action against the defendant

Cabot Corp. pursuant to our diversity jurisdiction. She suffers from multiple medical

ailments, including chronic beryllium disease. The question before us is whether she has

established a cause of action under Pennsylvania law for beryllium-related disease, where

the only alleged symptoms include permanent scarring of the lungs, shortness of breath

and reduced pulmonary functioning.

       The District Court granted summary judgment in favor of Cabot, concluding that

Sheridan presented no evidence tending to establish the requisite causal nexus between

her shortness of breath–the only alleged symptom that qualifies as a functional

impairment–and her chronic beryllium disease, thus failing to establish a compensable

injury under Pennsylvania law. We will affirm.

                                              I.

       Because we write exclusively for the benefit of the parties who are well acquainted

with the facts and procedural posture of the present action, we will recount only those

matters relevant to the issues before us. On October 30, 2001, Sheridan was diagnosed

with chronic beryllium disease. Beryllium is a lightweight, high strength, tensile metal

with a variety of industrial uses. It is also a toxic substance with the capacity to cause

both cancer and a chronic scarring lung disease–chronic beryllium disease. Cabot and its

predecessors manufactured and processed beryllium-containing products at its facility in



                                              2
Reading, Pennsylvania. Sheridan’s exposure to beryllium occurred between 1951-1956,

when she lived nearby the Reading Plant, which was emitting toxic beryllium fumes,

dusts and particulate matter into the ambient air. She has had no other exposure to

beryllium.

       In October 2001, Dr. Milton Rossman of the University of Pennsylvania first

evaluated Sheridan to determine whether she was afflicted with chronic beryllium

disease. At that time, Sheridan reported no respiratory problems, and Dr. Rossman

described her as “active as any other 74 year old.” Dr. Rossman’s evaluation included a

CT scan, chest x-ray, blood tests, pulmonary function tests, bronchoscopic lavage and

beryllium lymphocyte proliferation tests of blood and lung cells. The tests found that

Sheridan’s pulmonary function was “within normal limits.” In an October 30, 2001 letter

to Sheridan’s primary care physician, Dr. Mark Zibelman, Dr. Rossman stated:

       Ms. Sheridan clearly has evidence of chronic beryllium disease. She had chronic
       granulomatis process of her mediastinum and lungs and a strong response to
       beryllium both in her blood and in her lung cells. Currently, there is no indication
       for treatment of this condition as she has essentially normal pulmonary function
       and there is no progressive evidence of lung disease on her high resolution CT. In
       addition, her bronchioalveolar lavage does not show a marked increase in her
       lymphocytes suggesting that this is probably stabilized and may not require
       treatment in the future.

Dr. Rossman recommended that Sheridan be followed closely and have pulmonary

function studies and a chest x-ray “at least on a yearly basis.”

       On November 21, 2002, Sheridan returned to Dr. Rossman for her annual visit. In

his letter of the same date to Dr. Zibelman, Dr. Rossman wrote that Sheridan had “noticed

                                              3
some increasing shortness of breath over the last year” while taking walks and going up

steps. Dr. Rossman noted that her pulmonary function studies “were essentially

unchanged from what she had previously . . . . Except for a slight reduction in her vital

capacity.” Based on the tests that were conducted, Dr. Rossman was unable to determine

whether Sheridan’s shortness of breath or slight decrease in lung capacity were caused by

her chronic beryllium disease. Her chest x-ray remained unchanged from her x-ray in

October 2001. Dr. Rossman wrote:

       My suspicion is that her beryllium disease has not progressed in the last year;
       however, because of the active inflammation noted in her lungs, she is still at risk
       for developing progressive beryllium disease. I am concerned because of the
       shortness of breath that she relates that there may be something going on either due
       to her hives or due to her beryllium disease.

Notwithstanding these concerns, Dr. Rossman did not prescribe medication to combat

Sheridan’s disease. Dr. Rossman explained his reasons as follows:

       Because there were no abnormalities on a routine chest x-ray. Her pulmonary
       function studies were all within the normal range. And, finally, over time, I did
       not see any progressive decline in her [pulmonary] function.

       Sheridan also suffers from several unrelated medical conditions. Over the last

several years, she has been diagnosed with hypertension, nonobstructive coronary artery

disease, acid reflux disease, a gastric ulcer, allergies, anxiety and osteoporosis. In

addition, since 1971, Sheridan has suffered from chronic urticaria, commonly known as

chronic hives. Notably, Dr. Rossman recounted in his October 30, 2001 letter to Dr.

Zibelman that Sheridan had informed him that her attacks of chronic hives were often



                                              4
accompanied by “shortness of breath, wheezing and a cough.”

       Sheridan’s retained litigation expert, Lisa M aier, M.D., submitted an expert report,

in which she opined that Sheridan has chronic beryllium disease. Dr. Maier did not

examine Sheridan, instead basing her medical opinion solely upon a review of the

medical records. Dr. Maier later testified at a subsequent deposition that Sheridan’s

chronic beryllium disease had caused chronic scarring in her lungs. Dr. Maier was unable

to identify any other impairments attributable to chronic beryllium disease. Of particular

importance here, Dr. Maier never opined that Sheridan’s shortness of breath or decrease

in pulmonary capacity were caused by chronic beryllium disease. And although Dr.

Maier did observe that from 2001 to 2002 Sheridan’s total lung capacity had decreased

from ninety-two percent predicted to eighty-five percent predicted, which would be

considered a significant change according to the American Thoracic Society, she noted

that, even with this reduction in function, Sheridan’s lung volumes continued to be within

normal limits.

       At her deposition, moreover, Dr. Maier was asked by defense counsel how

Sheridan’s chronic beryllium disease had progressed, to which she responded that

Sheridan has:

       had some subtle decrements in her pulmonary function testing. She now does have
       some symptoms of shortness of breath, and Dr. Rossman, while he does not – is
       not sure whether those are related to chronic beryllium disease or not, is concerned
       enough that he wants her to come back to see him in six months, so my concern is
       the pulmonary function abnormalities that we – or the reductions that we
       mentioned earlier are probably attributed to [chronic beryllium disease], and that

                                             5
       it’s possible that her symptoms now of shortness of breath could be, too.

Defense counsel further inquired, “[d]o you agree that, based upon the information

available today, that you cannot differentiate between hives or beryllium disease as the

cause of [Sheridan’s] reported shortness of breath within a reasonable degree of medical

certainty?” Dr. Maier responded that ‘[w]ith the testing that [Dr. Rossman] has obtained,

I would agree with that.”

                                              II.

       The District Court granted summary judgment in favor of Cabot, finding that

Sheridan had not yet suffered a compensable injury under Pennsylvania law. Applying

Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996), the District Court determined that the

chronic scarring of Sheridan’s lungs, unaccompanied by any physical impairment, was

not a compensable injury. The District Court found that the decline in pulmonary

functioning did not qualify as an impairment because Sheridan’s lung volumes remained

within normal limits. As for Sheridan’s shortness of breath, the District Court noted that,

although it might qualify as a physical symptom or functional impairment, Sheridan

nonetheless failed to raise an issue of fact as to the necessary causal link between her

symptoms and chronic beryllium disease.

        We exercise plenary review over the District Court’s grant of summary judgment

and apply the same standard as the District Court, i.e., whether there are any genuine

issues of material fact such that a reasonable jury could return a verdict for the plaintiff.



                                               6
Fed. R. Civ. P. 56(c); Debiec v. Cabot Corp., 352 F.3d 117, 128 n. 3 (3d Cir. 2003)

(citation omitted). We are required to “view the record and draw inferences in a light

most favorable to the non-moving party.” Debiec, 352 F.3d at 128 n.3 (citation omitted).

The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1332. We have

appellate jurisdiction pursuant to 28 U.S.C. §1291.

                                            III.

       Under Pennsylvania law, a medical condition, even if termed a “disease,” that is

unaccompanied by discernable symptoms or physical impairment is not a compensable

injury. Simmons v. Pacor, Inc., 674 A.2d 232, 237 (Pa. 1996). In Simmons, plaintiffs had

sued various defendants because of exposure to asbestos while serving in the military or

in civilian employment. While each of the plaintiffs had asbestos-caused pleural

thickening, the functioning of their lungs was not impaired, and none of the plaintiffs was

suffering from cancer. Id. at 234. Plaintiffs argued that they were entitled to damages

because the pleural thickening put them at a significantly greater risk of contracting

asbestosis and lung cancer. The Pennsylvania Supreme Court rejected this argument,

holding that asymptomatic pleural thickening is not a sufficient physical injury to warrant

damages. The Court emphasized, moreover, that plaintiffs were free to initiate lawsuits

“when symptoms develop and physiological impairment begins.” Id. at 237.

       Cabot leans heavily on Simmons, arguing that in this case, too, Sheridan’s chronic

scarring of the lungs is asymptomatic, unaccompanied by a discernable physical or



                                             7
functional impairment. We agree. The decline in pulmonary functioning is not a

sufficient physical injury, inasmuch as Sheridan’s pulmonary functioning remained within

normal limits, as testified to by both Drs. Rossman and Maier. More than that, Dr. Maier

did not testify that the decline in pulmonary functioning, even if significant, was

definitively caused by chronic beryllium disease, as opposed to Sheridan’s other medical

conditions.

       In addition, the Pennsylvania courts have consistently held that shortness of breath,

alone, is not a compensable injury under Simmons because it is not a discernable physical

symptom, a functional impairment, or a disability. See, e.g., Ryan v. Asbestos Corp. LTD,

829 A.2d 686, 688 (Pa. Super. Ct. 2003); Quate v. American Standard, Inc., 818 A.2d

510, 513 (Pa. Super. Ct. 2003); Taylor v. Owens-Corning Fiberglas Corp., 666 A.2d 681,

687 n.2 (Pa. Super. Ct. 1995). What these cases properly recognize is that breathlessness

is also associated with any number of unrelated medical ailments, which is to say that a

causal link must be established between the diagnosis of chronic beryllium disease and

the shortness of breath symptom. Here, Sheridan has failed to submit evidence tending to

establish this essential nexus. As noted above, neither Dr. Rossman nor Dr. M aier could

testify that any of Sheridan’s symptoms, including her shortness of breath, were caused by

her chronic beryllium disease, and not her chronic hives or other unrelated medical

ailments. Without such evidence, Sheridan’s shortness of breath does not qualify as a

physical or functional impairment. Sheridan’s chronic scarring, then, is asymptomatic,



                                              8
which, pursuant to Simmons, is not a compensable injury under Pennsylvania law.

       Sheridan, however, tries to differentiate this case from the clear strictures of

Simmons by distinguishing her chronic beryllium disease from asbestosis or other

asbestos-related conditions. This argument fails for at least two reasons. First, Sheridan

does not appear to have raised this argument before the District Court. As such, she is

barred from raising it for the first time on appeal. Ross v. Hotel Employees and

Restaurant Employees, 266 F.3d 236, 242 (3d Cir. 2001) (“Generally, absent compelling

circumstances an appellate court will not consider issues that are raised for the first time

on appeal.”) (citation omitted).

       Second, even if we were inclined to consider this argument, we find it lacks merit.

While it is true that Simmons and its progeny dealt with asbestos-related impairments, not

chronic beryllium disease, we see no reason to limit Simmons to the asbestos context.

Sheridan, for her part, relies heavily on Murray v. Hamot Medical Center, 633 A.2d 196

(Pa. Super. Ct. 1993), alloc. denied, 658 A.2d 796 (Pa. 1994), in which the Pennsylvania

Superior Court held that the statute of limitations on plaintiff’s cause of action for HIV

began to run on the date when plaintiff discovered the HIV-infection. The court reasoned

that an HIV infection–even if asymptomatic-“entails changes in and limitations to [one’s]

lifestyle” due to the necessity of taking steps to avoid further transmission and to begin

treatment to combat the virus’ rapid reproduction. Id. at 202.

       We believe that Sheridan’s situation more closely resembles the facts in Simmons



                                              9
than those of Murray. Sheridan’s chronic scarring, like pleural thickening, is

asymptomatic. This holds true notwithstanding the distinction proffered by Sheridan

between pleural thickening and chronic scarring of the lungs, to wit, that pleural

thickening affects the membranes surrounding the lungs, not the lungs themselves. What

matters is not the location of the scarring, but rather whether or not the disease is

symptomatic. Where, as here, that critical showing has not been made, the distinction

relied on by Sheridan is without a difference. Furthermore, the dramatic changes in and

limitations to one’s lifestyle as a result of HIV, namely the need to avoid transmission and

obtain preemptive medical treatment, find no parallel with chronic beryllium disease, at

least with respect to Sheridan, who has not required any medical treatment or shown

substantial signs of progressive deterioration.

        Upon careful review of the record, we conclude that Sheridan has failed to

establish a compensable injury under Pennsylvania law.1 Accordingly, we will AFFIRM

the District Court’s grant of summary judgment in favor of Cabot Corp.




       1
        Cabot also argues that the Pennsylvania statute of limitations bars Sheridan’s complaint.
Because we conclude that Sheridan has not suffered a compensable injury, we do not address that
issue.

                                               10
