DANIEL J. VITALO; DIANE E. VITALO, h/w v. CABOT CORPORATION, Individually

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1741
DANIEL J. VITALO;
DIANE E. VITALO, h/w,
Appellants
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,
c/o C.T. Corporation System,
NGK METALS CORPORATION, Individually and as
Successor to
THE BERYLLIUM CORPORATION,
KAWECKI BERYLCO INC., a/k/a
KBI, KAW ECKI CHEMICAL CO., BERYLCO, INC.,
c/o C.T. CORPORATION SYSTEM,
NGK INSULATORS, LTD.,
c/o C.T. CORPORATION SYSTEM,
NGK NORTH AM ERICA,
c/o C.T. CORPORATION SYSTEM

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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 01-cv-06759)
District Judge: Honorable Harvey Bartle, III
Argued June 25, 2004
Before: AMBRO, BECKER and GREENBERG,
Circuit Judges
(Opinion filed: March 3, 2005)
Ruben Honik, Esquire (Argued)
Golomb, Honik & Langer
121 South Broad Street
9th Floor
Philadelphia, PA 19107
Attorney for Appellant
Neil S. Witkes, Esquire (Argued)
Sandra G. Gibbs, Esquire
Manko, Gold, Katcher & Fox
401 City Avenue, Suite 500
Bala Cynwyd, PA 19004

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1By happenstance two of the three panel members in
DeBiec sit on this case as well.
3
James W. Gicking, Esquire (Argued)
Marshall, Dennehey, Warner, Coleman & Goggin
1845 Walnut Street, 16th Floor
Philadelphia, PA 19103
Attorneys for Appellee
OPINION OF THE COURT
AM BRO, Circuit Judge
This case requires us to revisit the question of when
Pennsylvania’s statute of limitations begins to run in a
personal injury action alleging harm traceable to defendants’
beryllium plant in Reading, Pennsylvania. Our Court
examined four similar cases in Debiec v. Cabot Corporation,
352 F.3d 117 (3d Cir. 2003).1 The law applied is well
understood—the statute of limitations begins to run when a
person knows, or through the exercise of reasonable diligence
should know, s/he has been injured and someone else caused
that injury. A complication arises when the injury caused is a
disease that develops over time. In those cases, when should
a plaintiff know s/he needs to investigate and bring potential
claims? Answers are discerned under the so-called

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“discovery rule,” the touchstone of which is reasonable
diligence by the plaintiff. In this case we hold that the statute
of limitations began to run when Plaintiff Daniel Vitalo
ceased to exercise reasonable diligence in investigating his
health problems, more than two years before he and his wife,
Diane, brought suit. Thus their claims do not escape the bar
of Pennsylvania’s two-year limitations period.
I. Factual Background
Defendants Cabot Corporation and NGK Metals
Corporation operate a beryllium manufacturing plant in
Reading, Pennsylvania (“the Reading Plant”). Beryllium,
with many industrial uses, unfortunately is a toxic substance
that can cause both cancer and a lung disorder known as
chronic beryllium disease (“CBD”).
For his entire life Daniel Vitalo (“Vitalo” or “Daniel”),
now in his mid-‘70s, has lived within six miles of the Reading
Plant. He suffers from CBD, resulting from exposure to
respirable beryllium dust emanating from the Reading Plant.
For four months in 1959 Vitalo worked in the furnace
room of the Reading Plant. This period of employment ended
when he began experiencing respiratory troubles—shortness
of breath and chronic coughing. According to Vitalo, he was
sent home by the plant physician on the basis of the doctor’s
diagnosis that Vitalo was suffering from “beryllium
poisoning,” also known as berylliosis. Vitalo never returned

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5
to his job at the Reading Plant. For the next three decades,
until his retirement in 1990, Vitalo worked for a railroad
company–Reading Company (which later became part of
Conrail).
By June of 1995 the United States Department of
Health and Human Services ("HHS") had completed a
workplace study of persons who worked in beryllium
production plants, focusing on the increased risk of lung
cancer created by workplace beryllium exposure. That month
HHS sent Vitalo information about the completed study,
including a letter that stated: “Before this study began, we
knew that people exposed to beryllium may develop . . . acute
and chronic . . . lung diseases caused by exposure to
beryllium.” The letter further stated that “[c]hronic beryllium
disease and lung cancer may develop many years after the last
exposure to beryllium. Thus, you and your doctor should be
aware that you might have an increased risk of developing
these diseases.” The packet also contained a fact sheet
describing the main symptoms of chronic beryllium disease,
including “shortness of breath . . ., cough, fatigue, weight
loss, or chest pains.” HHS urged that should the recipient of
the information packet develop these symptoms, s/he should
seek medical attention and provide the enclosed fact sheet —
entitled “For Your Doctor” — to her/his physician. HHS
provided additional information along with the letter,
including a fact sheet with the header “Steps to Protect Your
Health.” Vitalo testified at deposition that he did not
remember receiving this packet from HHS.

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In 1996 Vitalo developed a cough that led him to see
his family physician, Dr. Ivan Bub. In December of that year,
Dr. Bub ordered a chest x-ray that showed “[s]ome chronic
obstructive pulmonary disease.” Dr. Bub informed Vitalo of
these findings and ordered a second x-ray, which was
conducted on January 9, 1997. The radiology report of this
second chest x-ray observes: “There is somewhat increased
interstitial lung markings due to chronic process.”
A week later, Vitalo received a letter from Moody,
Strople & Kloeppel, Ltd., a Virginia law firm pursuing
asbestos litigation on behalf of plaintiffs. The letter
encouraged Vitalo to undergo a chest x-ray in order to screen
him for asbestos-caused lung diseases that he might have
contracted while working for the railroad. In response to this
letter, Vitalo underwent yet another chest x-ray in June 1997.
This x-ray was reviewed by Dr. Dominic Gaziano on behalf
of the Moody firm. Dr. Gaziano concluded that “there is
evidence of an occupational lung disease.” He saw a “vague
shadow” on Vitalo's upper right lobe that “may represent old
scarring, an active disease process or possibly even a tumor.”
Dr. Gaziano recommended that Vitalo consult his treating
physician as soon as possible to discuss the report.
Vitalo returned to Dr. Bub in early August 1997,
presenting both Dr. Gaziano’s report and the June 1997 x-ray
films. During this consultation, Vitalo complained that he
had been coughing up mucus for the past seven to ten days
and explained that “he had worked around asbestos in the

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remote past, also around beryllium.” According to Dr. Bub,
he and Vitalo discussed the possibility that Vitalo was
suffering from occupational lung disease. As a result of this
consultation, Dr. Bub referred Vitalo to Dr. Joseph Mariglio,
a pulmonary specialist.
Vitalo met with Dr. Mariglio shortly thereafter, noting
his concern about the June 1997 x-ray and the possible lung
mass it disclosed. At the time, Vitalo was asymptomatic. Dr.
Mariglio performed several tests, including a CAT scan of the
chest and a pulmonary function study. His notes recorded
Vitalo’s diagnosis with berylliosis when he worked at the
Reading Plant in 1959. In a letter to Dr. Bub, Dr. Mariglio
reported that, though he doubted Vitalo had a lung mass, he
diagnosed him with “[p]robable occupational Lung Disease[,]
i[.]e., berylliosis [;] doubt asbestosis.”
Dr. Mariglio testified at his deposition that in
September 1997 he discussed these conclusions with Vitalo,
explained that Vitalo had “[o]ccupational-related lung
disease,” and informed Vitalo that “there was some scarring
in the lungs” believed to be “industry-related.” When Vitalo
was questioned at his deposition about this conversation with
Dr. Mariglio, the following exchange occurred:
Q. When [Dr. Mariglio] said you had some
scarring in the lungs, and . . . he thought it was
industry-related, did he explain what he meant
by that?

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A. No, sir, he did not.
Q. Did you ask him for any information on that,
what he meant by it or why he thought that?
A. No, sir.
Q. What industry was he talking about?
A. I--he didn't say. He just said it was
industry-related.
Q. At that time, when he told you it was
industry-related, did he mention your work with
the railroad and any asbestos exposure?
A. No, he did not.
Q. Did he mention work at the Beryllium
Corporation and any beryllium exposure?
A. No, he did not.
Q. What happened after you saw Dr. Mariglio
and he told you that, that it was industry-related
and you had scarring on your lungs?
A. Nothing.

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Q. Did you ever see him again?
A. No.
Vitalo maintains that neither Dr. Mariglio nor Dr. Bub ever
told him that his lung condition was caused by beryllium.
Because Vitalo was asymptomatic at the time of his visit, Dr.
Mariglio did not recommend that he obtain further testing.
In August 1998 Dr. Kenneth Rosenman of Michigan
State University sent Vitalo a packet of information soliciting
his participation in a beryllium worker study of the National
Institute for Occupational Safety and Health (“NIOSH”). Dr.
Rosenman’s cover letter explained: “Our records show that at
some time in your life, you worked at a beryllium production
facility in Reading, Pennsylvania. Some workers from these
plants have been exposed to beryllium, a substance that can
cause lung disease.” The letter offered Vitalo free medical
testing to determine whether he was suffering from any
beryllium-related lung condition, providing instructions as to
which forms to fill out and return in order to participate in the
study and receive the free medical screening. The packet of
information also included a fact sheet about beryllium and
CBD which listed the major health problems that beryllium
can cause and CBD’s symptoms. Vitalo claims he does not
remember receiving this packet from Dr. Rosenman, yet he
does not refute the evidence presented that he signed and
returned the enclosed medical records release forms in August
and October 1998 and the beryllium screening consent form

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10
in October.
In early December 1998 Vitalo was once again
examined for possible signs of asbestosis at the request of the
Moody law firm. Dr. Alvin Schonfeld sent a report of this
examination directly to the firm. In the report, he concluded
that “[g]iven [Vitalo]’s history of significant exposure to
aerosolized asbestos associated with an appropriate latency
and given the roentgenographic and pulmonary functions
findings described above, I feel with a reasonable degree of
medical certainty that Mr. Vitalo is diagnosed as having
interstitial fibrosis caused by pulmonary asbestosis.” The
report included no reference to any occupational or other
exposure to beryllium, but it did discuss Vitalo’s history of
work for the Reading Company. The report stated that Vitalo
had complained of shortness of breath after climbing stairs,
wheezing and coughing up yellow mucus. Dr. Schonfeld
noted that he had advised Vitalo “to seek medical follow up
for” these symptoms. There is no evidence in the record that
Vitalo sought further medical care as a result. In any event,
Vitalo thereafter became a class member in an asbestos
lawsuit brought by the Moody firm against various asbestos
companies.
In late M ay 1999 Dr. Rosenman sent a letter to Vitalo
detailing the results of his medical testing as follows:
Your blood test was normal. Your blood did
not react to beryllium. Your breathing test was

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abnormal. Your x-ray showed scarring in your
lung which may be caused by beryllium.
[B]ecause of the scarring in your lung, we
would recommend you have further testing to
determine if you have chronic beryllium
disease. We are offering this testing at the
University of Pennsylvania in Philadelphia.
There is no charge to you for the testing. . . .
Milton Rossman, M.D., a lung specialist at the
University of Pennsylvania, will be performing
the testing. He will be calling you in the next
couple of weeks to discuss the testing with you.
(Emphasis added.) Vitalo was also advised that transportation
costs to and from Philadelphia and a room at a local hotel for
a companion would be provided. Dr. Rossman’s research
coordinator, Joaquina Regovich, sent a follow-up letter to
encourage Vitalo to undergo the additional testing. She
explained that it was her usual practice to follow up further
with a telephone call. Vitalo did not respond to these requests
for additional testing.
Dr. Rosenman sent out two follow-up letters—the first
in November 2000 and the second in June 2001—to
encourage certain participants in the NIOSH study to undergo
additional testing at the University of Pennsylvania. These
letters informed participants of a federal compensation fund
that would provide medical care costs and a $150,000
payment to qualifying individuals with beryllium disease.

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2The District Court had jurisdiction over this case
pursuant to 28 U.S.C. § 1332. Our Court has appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
12
Vitalo spoke with Dr. Rosenman’s office in December
2000 to schedule the follow-up testing with Dr. Rossman at
Penn. Vitalo underwent this additional testing in January
2001 and was diagnosed that same month with CBD.
The Vitalos filed this action on December 20, 2001.
Daniel asserted claims of negligence, strict liability for
abnormally dangerous activity, strict liability for
ultrahazardous activity, fraudulent concealment or
nondisclosure, and civil conspiracy. Diane asserted a
derivative claim for loss of consortium.
Cabot Corporation and NGK M etals Corporation
moved for summary judgment, arguing that all of the Vitalos’
claims are barred by the two-year Pennsylvania statute of
limitations. The Vitalos argued that they did not discover the
cause of Daniel’s disease until the definitive diagnosis of
CBD in January 2001. The District Court, however, believed
that, based on the uncontested facts, the Vitalos’ complaint
fell outside the statute of limitations and thus entered
summary judgment against them. This appeal follows.2
II. Standard of Review
“We exercise plenary review over a district court’s

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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 plaintiffs.” Debiec, 352 F.3d at 128 n.3 (citing Fed .R.
Civ. P. 56(c); McNulty v. Citadel Broad. Co., 58 Fed. Appx.
556 (3d Cir. 2003)). We are required to view the record and
draw inferences in the light most favorable to the non-moving
party, id., yet the non-moving party must produce admissible
evidence containing “specific facts showing that there is a
genuine issue for trial.” Fed. R. Civ. P. 56(e); see Pamintuan
v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 n.13 (3d Cir.
1999); Wetzel v. Tucker, 139 F.3d 380, 383 n.2 (3d Cir.
1998).
III. Applicable Law
Our opinion in Debiec described the applicable
Pennsylvania state law at issue here, namely, Pennsylvania’s
two-year statute of limitations for personal injury and
wrongful death actions, 42 Pa. Cons. Stat. § 5524(2), and its
associated “discovery rule,” which delays the running of the
limitations period when “a party, through no fault of his or her
own, does not discover her injury until after the statute of
limitations normally would have run.” 352 F.3d at 129. In a
typical case, a person is injured and suspects a cause. That
person has two years to sue after the injury. If, however, an
injury is undiscovered (that is, it is hidden and therefore
unknown or latent), the time within which to sue does not
begin to run until the plaintiff first knows, or reasonably

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should know, that s/he has been injured and that her/his injury
has been caused by another party's conduct. Bohus v. Beloff,
950 F.2d 919, 924 (3d Cir. 1991) (citing Cathcart v. Keene
Indus. Insulation, 471 A.2d 493, 500 (1984)). We have
construed this objective reasonableness requirement to mean
that the statute of limitations begins to run when plaintiffs
come to possess “sufficient critical facts to put [them] on
notice that a wrong has been committed and that [they] need
to investigate to determine whether [they are] entitled to
redress.” Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.
1985).
A plaintiff seeking the shelter of the discovery rule
bears “a duty to exercise ‘reasonable diligence’ in
ascertaining the existence of the injury and its cause.” Bohus,
950 F.2d at 925. What does reasonable diligence require? It
requires that putative plaintiffs “exhibit[] those qualities of
attention, knowledge, intelligence and judgment which
society requires of its members for the protection of their own
interests and the interests of others.” Cochran v. GAF Corp.,
666 A.2d 245, 249 (Pa. 1995). Proof of a plaintiff’s
subjective knowledge is insufficient to invoke the discovery
rule; a defendant can inquire what a reasonable plaintiff
should know or should know to check. See id. (explaining
that reasonable diligence is an objective, rather than a
subjective, standard). Put simply, clues indicating to a
reasonable person an injury or its cause cannot be ignored.
If a person knows of an injury but is given an incorrect,

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but nevertheless reasonable, diagnosis, that person may be
misdirected as to the injury’s cause. In that case, the statute
of limitations might not begin to run until the injured person
is given a correct diagnosis or should otherwise know the true
cause (in light of the totality of the circumstances). DeBiec,
352 F.3d at 132. This special case is evaluated under the
same, general rubric. In light of the incorrect diagnosis, we
inquire whether a reasonable person should have known the
true cause of her/his injury and whether that person exercised
reasonable diligence.
Plaintiffs seeking the benefit of the discovery rule bear
the burden of establishing its applicability. Dalrymple v.
Brown, 701 A.2d 164, 167 (Pa. 1997) (as to the injury);
Cochran, 666 A.2d at 250 (as to the cause of the injury). In
Debiec, we explained that, while “the question whether a
plaintiff has exercised reasonable diligence is usually a jury
question[,] . . . [t]he Pennsylvania Supreme Court has
cautioned . . . that where the facts are so clear that reasonable
minds cannot differ, the commencement period may be
determined as a matter of law.” Debiec, 352 F.3d at 129
(quotation marks and citation omitted).
IV. Analysis
We do not believe, as a matter of law, that Vitalo
pursued the cause of his injury with reasonable diligence
through December 1999. We agree with the District Court
that “[g]iving plaintiffs the benefit of all doubt, the time for

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commencing this action began to run at the latest in May,
1999.” Vitalo v. Cabot Corp., 2003 WL 22999240, *8 (E.D.
Pa. Feb. 25, 2003). The Vitalos did not file their lawsuit until
December 20, 2001–at least seven months after
Pennsylvania’s two-year statute of limitations had run. For
this reason, we affirm the District Court’s order granting the
defendants summary judgment.
By May 1999 Vitalo was aware of sufficient critical
facts to put him on notice that he had been injured and that he
needed to investigate his health problem and its cause. To
begin, Vitalo had direct experience with beryllium toxicity in
1959. Admittedly, as he points out, acute beryllium poisoning
is distinct from chronic beryllium disease, and approximately
thirty years time separates his acute beryllium toxicity episode
from the later onset of CBD symptoms. Yet Vitalo’s early
experience with beryllium toxicity is nonetheless relevant.
Certainly he must have (or should have) reflected on his 1959
experience with beryllium in the many conversations he had
with various doctors in which potential “occupational lung
disease” was discussed. Indeed there is evidence to suggest
that Vitalo did consider the 1959 episode in the context of his
later health problems. Dr. Mariglio, for example, was made
aware of the 1959 episode when he evaluated Vitalo in
August of 1997, ultimately diagnosing Vitalo with
“[p]robable occupational Lung Disease i[.]e., berylliosis [;]
doubt asbestosis.”
Vitalo received unsolicited literature informing him of

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the health risks posed by his exposure to beryllium and
encouraging him to investigate diligently this possibility.
Because Vitalo does not remember receiving the HHS
information packet purportedly sent to him in 1995, and no
evidence undisputably shows that he did, we shall not
comment on its contents given the posture of this appeal.
But the 1998 NIOSH beryllium worker study is
different. While Vitalo might not remember receiving the
informational packet, the several forms he endorsed and
returned—the authenticity of which Vitalo does not
dispute—make clear that he received and reviewed the
packet. Quite simply, the NIOSH packet made obvious that
Vitalo’s health problems could be related to beryllium
exposure. The letter explicitly explained that Vitalo had been
targeted to receive the correspondence because of his
potential exposure to beryllium. Moreover, the packet
described the symptoms of beryllium-related disease, some of
which Vitalo had complained of approximately one year
before receiving the packet when he visited Dr. Bub and was
referred to Dr. Mariglio (after receiving Dr. Gaziano’s
troubling report indicating lung disease).
Most significantly, Vitalo received a series of medical
test results and diagnoses that, taken as a whole and together
with the other information discussed already, put him on
notice of his potential claim by May 1999 at the latest.
Putting aside the 1959 beryllium poisoning diagnosis, in June
of 1996 Vitalo underwent a lung x-ray that indicated chronic

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18
obstructive pulmonary disease. A follow-up x-ray in January,
1997 revealed “increased interstitial lung markings due to
chronic process.” Dr. Gaziano’s June 1997 report, on the
basis of yet another chest x-ray, disclosed “evidence of an
occupational lung disease.” Dr. Mariglio’s subsequent CAT
scan of the chest and pulmonary function study confirmed
these earlier diagnoses and led Dr. Mariglio to explain to
Vitalo that he had “[o]ccupational-related lung disease.” In
December 1998 Vitalo received Dr. Schonfeld’s advice to
seek additional medical testing. Finally, in May 1999 Vitalo
received Dr. Rosenman’s NIOSH study test results, which
explained that Vitalo’s “x-ray showed scarring in [his] lung
which may be caused by beryllium” and “recommend[ed] . . .
further testing [offered free of charge] to determine if [Vitalo
had] chronic beryllium disease.”
We need not here determine the precise time Vitalo
gained awareness of sufficient critical facts to put him on
notice of his potential claim. We conclude only that as a
matter of law Vitalo was on notice by May 1999 at the latest
that he was injured, it might be CBD, and his injury was
occupationally related.
Vitalo advances a single argument to justify his delay
in seeking additional testing and treatment — that “he
reasonably relied on the definitive diagnosis of asbestosis.”
Appellants’ Brief at 18. After consenting to participate in Dr.
Rosenman’s NIOSH study, but before receiving Dr.
Rosenman’s results, Vitalo was examined by Dr. Schonfeld

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(on behalf of the Moody firm) for potential asbestos-related
injury. Construing the facts in the light most favorable to
Vitalo, he “[w]as definitively diagnosed with asbestosis by
Dr. Schonfeld on December 16, 1998.” Id. at 17. Vitalo
argues that this misdiagnosis trumps his awareness of facts
tending to put him on notice of the beryllium-related wrong
committed against him. That is, by the time he received Dr.
Rosenman’s report, he argues, he already knew the cause of
his lung scarring and thus reasonably disregarded information
suggesting another cause and advice to seek additional
testing.
In support of this argument, Vitalo relies on our
decision in Debiec. In broad terms, Debiec took up the
question of “how to measure the impact of a professional
medical diagnosis on a court’s evaluation of whether a
plaintiff has exercised reasonable diligence in investigating
her condition.” Debiec, 352 F.3d at 130. But in Debiec we
examined whether, and to what extent, a plaintiff can
reasonably rely on a doctor’s conclusion that she does not
have a certain condition, notwithstanding suspicions to the
contrary. Id. at 132. In that context, we explained that “a
definitive negative diagnosis may be sufficient in some cases
to overcome the fact that the claimant harbored suspicions
that she had a particular injury.” Id. (emphasis added).
Debiec was diagnosed as having sarcoidosis. In making this
diagnosis, her doctor explicitly ruled out beryllium-related
disease. As the majority stressed, her doctor “did not alter his
diagnosis of Debiec's condition, that she had sarcoidosis[,] not

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CBD, during her lifetime.” Id. at 124. The majority
ultimately held that a reasonable jury could conclude that
Debiec reasonably relied on the negative diagnosis, and thus
the statute of limitations did not begin for her despite the
indicators of CBD. Id. at 136 (“[R]easonable minds could
differ on the question whether Debiec employed reasonable
diligence in pursuing the cause of her injury.”).
Vitalo’s effort to stretch our holding in Debiec to
accommodate the facts of his case is unavailing. Quite
simply, Vitalo was never told that he did not have beryllium-
related lung disease. In fact, even the “definitive” diagnosis
of asbestosis by Moody’s Dr. Schonfeld—prepared in aid of
asbestos-claim litigation— was accompanied by a
recommendation that Vitalo seek additional testing, a
recommendation Vitalo failed to heed. Moreover, less than
six months after receiving this diagnosis, Vitalo heard back
from Dr. Rosenman, who informed him: “Your x-ray showed
scarring in your lung which may be caused by beryllium.
[B]ecause of the scarring in your lung, we would recommend
you have further testing to determine if you have chronic
beryllium disease.” Thus, by May 1999 Vitalo had been
diagnosed with asbestosis by Dr. Schonfeld, who
recommended further testing, and informed by Dr. Rosenman
that he should undergo further testing to determine if he had
CBD. His clock to check this out and determine the correct
cause of his condition had begun. By the time he filed — two
years and seven months later — the limitation period had

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3Interestingly, once CBD was definitively diagnosed in
Vitalo’s case in January 2001, he still had approximately four
months to sue before the expiration of the limitations period.
21
expired.3
In this context, we have no option but to conclude that
by failing to seek additional medical testing after May 1999 at
the latest, Vitalo failed to exercise reasonable diligence and
thus cannot invoke the safe harbor provided by the discovery
rule.
* * * * *
We conclude as a matter of law that (1) by May 1999
Vitalo was on notice that he was occupationally injured and
might well have CBD, yet (2) he failed to exercise reasonable
diligence in investigating his potential claim. Having reached
these conclusions, we affirm the District Court’s grant of
summary judgment to the defendants in this case.

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