Statute of Limitations in Asbestos Cases

Decisions in our library in which the court ruled on statute of limitations: 381 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

About this issue

A statute of limitations sets how long someone has to file a lawsuit after a claim arises. For personal injury claims under state law, deadlines generally range from one to six years. Federal claims have their own deadlines: a railroad worker's claim under FELA, for example, has three years. Wrongful death claims usually have a separate deadline that runs from the date of death, though in some states a death claim is allowed only if the person's own claim was still timely when they died.

Asbestos diseases appear 10 to 50 years after exposure, so a rule that started the clock at exposure would bar almost every claim before anyone knew they were sick. Courts and legislatures have answered with discovery rules, but the trigger differs from state to state. It may be when the person discovered the injury, when they knew or should have known its cause, when they became disabled, or another event a statute names. Some states have statutes written specifically for asbestos claims.

The cases in this section turn on questions like these:

• When did the clock start? An earlier X-ray, symptoms, a doctor's comment, or a workers' compensation claim may be argued as the starting point, sometimes before a formal diagnosis.
• Does an earlier, milder disease such as asbestosis or pleural plaques start the clock for a cancer diagnosed years later? Many courts treat a later cancer as a separate injury with its own deadline; others do not.
• Was the deadline paused or extended? A defendant's bankruptcy does not pause deadlines in general; it stops suits against that company and has its own limited extension rules.

A separate statute of repose can bar a claim even when the limitations period has not run. Because the starting point can be argued, never count from any date later than the diagnosis. In some states the clock may already have started before it, so talk to a lawyer as soon as an asbestos disease is suspected. See your state's asbestos law page for its deadlines.

Alabama

• Corley v. Long-Lewis, Inc. (2020). An order granting a plaintiff's Rule 41(a)(2) motion to voluntarily dismiss the rest of a complaint is a final judgment for appeal, and a court may refuse to consider a new choice-of-law (maritime law) argument first raised in a motion for reconsideration after summary judgment.
• Smith v. Avon Products, Inc. (2019). Specific personal jurisdiction requires that the plaintiff's claims arise out of or relate to the defendant's own contacts with the forum, and a parent company's jurisdiction cannot rest on its subsidiary's contacts unless the veil is pierced by showing complete control and domination. Oversight, shared branding and public defense of a product did not meet that standard.
• Holland v. Airco, Inc. (2016). Under Alabama law a plaintiff must first prove exposure to an asbestos-containing product for which the defendant is responsible. Evidence that a defendant's equipment sometimes contained asbestos parts, without proof that the specific parts the worker encountered were the defendant's, is not enough.
• Bobo v. Tennessee Valley Authority (2015). Applying Alabama law as it predicted, the court held that an employer owes a duty of reasonable care to an employee's household member exposed to asbestos carried home on work clothes, and that substantial factor causation applies to asbestos negligence claims involving multiple exposures. It also held that TVA was not shielded by the discretionary function doctrine because it violated mandatory rules.
• McGUFFIE v. Mead Corporation (2014). Predicting Alabama law, the court applied a two-injury rule so the mesothelioma claim was not time-barred by an earlier asbestosis diagnosis, but an unambiguous release of a company's former parents, stockholders and successors from future asbestos claims bars the suit, because inadequate consideration alone does not invalidate a written release.
• Morgan v. Bill Vann Company, Inc. (2013). In an asbestos case, exposure to a defendant's product does not require the plaintiff to have handled it; working in close enough proximity to the release of dust or fibers that he likely inhaled them is enough. Under Alabama's discovery rule, a claim based on exposure after the 1979-1980 cutoff accrues when the injury is or should be discovered.
• Morgan v. Bill Vann Company, Inc. (2013). Under Alabama law, asbestos personal injury claims based on last exposure before May 19, 1979 were barred under the last-exposure rule and were not revived by the later discovery-rule statute. A plaintiff must also show post-1979 exposure to the specific defendant's product with evidence beyond speculation to benefit from the discovery rule.
• Morgan v. Bill Vann Company, Inc. (2013). Under Alabama law, asbestos claims based on last exposure before May 19, 1979 were time-barred and not revived by the later discovery-rule statute. A plaintiff cannot create a fact dispute by relying on evidence that contradicts his own sworn testimony.
• Morgan v. Bill Vann Company, Inc. (2013). Under Alabama law, asbestos claims based on last exposure before May 19, 1979 are time-barred. The court predicted Alabama would adopt the bare metal defense, under which a pump maker is not liable for third-party asbestos gaskets and packing it did not make, sell or distribute.
• Morgan v. Bill Vann Company, Inc. (2013). Under Alabama law, asbestos claims based on last exposure before May 19, 1979 were time-barred under the old last-exposure rule and were not revived by the later discovery statute. To use the discovery rule, a plaintiff must show post-1979 exposure to the specific defendant's product, and speculation about brand does not suffice.
• Morgan v. Bill Vann Company, Inc. (2013). Under Alabama law, asbestos claims based on a last exposure before May 19, 1979 are time-barred and not revived by the later discovery-rule statute. A plaintiff relying on the discovery rule must show post-1979 exposure to the specific defendant's asbestos-containing product, and speculation or guesswork does not meet that burden.
• Brown v. the Boeing Company (2012). Under Rule 41(a)(2) in the Eleventh Circuit, voluntary dismissal without prejudice should generally be granted absent clear legal prejudice to the defendant, and losing a statute of limitations defense by refiling elsewhere is not such prejudice. The court may condition dismissal on payment of costs that will not benefit defendants in later litigation.
• Patterson v. Consolidated Aluminum Corporation (2012). To use Rule 9(h) and 15(c) relation back to substitute a named defendant for a fictitious one after limitations has run, the plaintiff must have exercised due diligence and promptly amended once the defendant's identity was known or should have been known; failure of any one requirement defeats substitution.
• Henderson v. MeadWESTVACO Corporation (2009). Under Alabama's wrongful-death statute, a personal representative suing in Alabama must show the decedent could have brought a personal-injury action had he lived, and that is judged by Alabama's statute of limitations under the lex fori rule, not another state's longer period.
• Greene v. CSX Transp., Inc. (2002). The Urie-Kubrick latent-injury discovery rule applies only to discovery by railroad employees themselves, not to personal representatives bringing 45 U.S.C. § 59 personal-injury survival claims; such a claim accrues no later than the employee's death.
• Southern Bakeries, Inc. v. Knipp (2002). Alabama requires a manifest, present injury before a plaintiff can recover in tort, including on fraud and suppression claims. Fear of developing cancer from asbestos exposure, without a physical injury or proof that cancer is likely, is not a legally cognizable present injury on this record.
• Ex parte Wilkerson (2000). A FELA claim accrues when the plaintiff has sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known; when the evidence on that date is disputed, accrual is a question of fact for the jury.
• Wilkerson v. Burlington Northern RR Company (1999). A FELA claim accrues when the worker knows or reasonably should know of the injury and that it is work-related; a final or confirmed diagnosis is not required to start the limitations period.
• Hogland v. Celotex Corp. (1993). Under King v. National Spa & Pool Institute, which overruled Elam, a personal injury action does not abate when the plaintiff dies as a result of the defendant's alleged wrongful act, so the personal representative could amend to add a wrongful death claim.

Arizona

• Leabo v. Allied Signal, Inc. (2011). Under Arizona law, which a federal court must apply to a state judgment, a state court's dismissal with prejudice of a second, identical action as time-barred is a judgment on the merits that bars the first-filed action by claim preclusion, even though the first action was begun earlier.
• Burns v. Jaquays Min. Corp. (2nd Division, Dept. A, 1987). Subclinical asbestos-related injury, with no manifest disease or physical injury, is not the actual loss or damage needed for a tort claim, and the statute of limitations does not run until the disease manifests. Fear and enhanced-risk damages therefore fail without bodily injury, but residents may still recover nuisance damages and the cost of reasonably necessary medical surveillance, preferably through a court-supervised fund.
• Nelson v. Industrial Com'n of Arizona (1982). The one-year deadline for filing a workers' compensation claim is not jurisdictional, and the Commission may waive a late filing when the ends of justice require. Waiver is judged by the Parsons test: a meritorious excuse, no excessive delay, and no prejudice to the carrier.

California

• Perez v. Century Indemnity Co. (1st Appellate District, 2nd Division, 2024). A suspended corporation's incapacity to sue passes to its assignee, so assigned claims filed while the corporation was suspended could not avoid expired limitations periods. Policy exclusions for products and for vehicle use or loading and unloading barred coverage because the alleged negligence was not independent of the van's use.
• Hahn v. New York Air Brake LLC (1st Appellate District, 5th Division, 2022). Under Code of Civil Procedure section 474, whether a plaintiff may substitute a Doe defendant depends on the facts the plaintiff actually knew when filing the complaint, not facts the plaintiff should have known; there is no duty of reasonable diligence.
• Darden v. Western Asbestos Settlement Trust (In re Western Asbestos Co.) (2021). Under California law a third party may enforce a general release if the contracting parties intended to benefit it, and a release of a successor's 'predecessor entity' covered the predecessor's negligence liability. A dismissal with prejudice of the same primary right in the earlier suit also barred the later claim by claim preclusion.
• Krueger v. Csaa Insurance Services, Inc. (5th Appellate District, 2021). A one-year suit limitation period in a homeowner's insurance policy is valid and enforceable. Delayed discovery, equitable tolling and equitable estoppel did not excuse the late filing where the insured showed no link between the later-discovered asbestos and the insurer's handling of her claims.
• Anderson v. Johnson & Johnson (2020). The court approved the parties' stipulation dismissing the wrongful death action against Johnson & Johnson and Johnson & Johnson Consumer Inc. without prejudice, with the limitations period tolled until after the state appeal ends.
• Hart v. Special Electric Company, Inc. (1st Appellate District, 5th Division, 2018). A Chapter 11 plan that allows insurers to defend claims under applicable state law does not preempt Wisconsin's two-year claims period for dissolved corporations. A dissolution notice that omits the required description of claim information has only a technical defect, which does not bar the limitations period absent prejudice to the claimant.
• Williams v. the Pep Boys Manny Moe & Jack OF California (1st Appellate District, 4th Division, 2018). Damages in a survival action by a decedent's personal representative or successor in interest are limited to loss the decedent sustained or incurred before death and exclude 'lost years' damages. A Doe amendment relates back only if the plaintiff was actually ignorant of the facts establishing a claim against the defendant when the original complaint was filed.
• City of Pasadena v. Superior Court of Los Angeles County (2nd Appellate District, 4th Division, 2017). Under Government Code section 901, a cause of action accrues for the six-month claim presentation deadline when the plaintiff discovers or should reasonably have discovered a compensable injury, not when the Code of Civil Procedure section 340.2 limitations period begins (disability). Section 340.2 does not alter the claim presentation deadline.
• Vos v. Calhoon (3rd Appellate District, 2014). An appellant must provide a record that affirmatively shows error, and self-represented parties get no special treatment. Without the operative complaint, the court could not find error in sustaining the demurrer without leave to amend.
• Leonard v. John Crane, Inc. (1st Appellate District, 5th Division, 2012). A spouse has a valid loss of consortium claim where the other spouse's injury was not discovered or discoverable until after the marriage and so accrued during the marriage, even if the defendant's negligent conduct (such as asbestos exposure) occurred before the marriage.
• Belvedere v. GS Blodgett Corporation (2nd Appellate District, 5th Division, 2011). Under the asbestos statute of limitations, the limitations period runs separately against each wrongful death heir, so one heir's knowledge does not start the clock for the others. A Doe amendment relates back only if the plaintiff was genuinely ignorant of the defendant's identity or the facts of its liability.
• McCann v. Foster Wheeler, LLC (2010). Section 361 does not require California's statute of limitations to be applied without choice-of-law analysis, so the governmental interest test governs. Under that test, Oklahoma's interest in applying its statute of repose to out-of-state designers of Oklahoma improvements would be more impaired than California's interest in a remedy for a current resident.
• McCann v. Foster Wheeler (2nd Appellate District, 8th Division, 2008). Under California's governmental interest choice-of-law analysis, California law applied rather than Oklahoma's statute of repose, because California's interest in giving its long-term resident a remedy for asbestos injury would be more impaired than Oklahoma's interest in protecting a non-resident defendant.
• Brumley v. Fdcc California, Inc. (1st Appellate District, 1st Division, 2007). The relation-back doctrine applies to the five-year trial rule (section 583.310), so claims added by amendment that do not relate back to the original complaint are not dismissed for failure to reach trial within five years of the original filing. Wrongful death and loss of consortium claims by heirs, and a later-arising cancer claim, do not relate back.
• Slaughter v. Union Carbide Corp. (2nd Appellate District, 7th Division, 2007). A suitable alternative forum for forum non conveniens is one where all named defendants can be sued, so an action may be dismissed only if all defendants are shown to be subject to jurisdiction there. Otherwise it may only be stayed, and if the alternative forum's limitations period has run, the stay must be conditioned on defendants waiving that defense.
• Cossman v. DaimlerChrysler Corp. (1st Appellate District, 1st Division, 2003). Under California's borrowing statute (Code Civ. Proc. § 361), a nonresident's claim that arose in another state is barred in California if it is time-barred there, and the exception for California citizens requires citizenship at the time the claim accrued.
• Ashdown v. Ameron International Corp. (1st Appellate District, 3rd Division, 2000). A latent asbestos-disease claim accrues, for deciding whether the 1982 amendment to Labor Code section 3602 applies, when the employee was diagnosed or discovered the disease, not at first exposure. The pre-1982 dual capacity exception therefore did not apply, and the fraudulent concealment exception requires the employer's actual knowledge of the injury.
• Hamilton v. Asbestos Corp., Ltd. (2000). Under Code Civ. Proc. § 340.2, the one-year limitations period runs from 'disability' (loss of work due to asbestos preventing the regular occupation), so a worker who retired for unrelated reasons had not started the clock, and filing an earlier action for a different disease does not start it; the rule against splitting a cause of action is not a limitations rule.
• Wagner v. Apex Marine Ship Management Corp. (1st Appellate District, 2nd Division, 2000). Under the Jones Act and federal maritime law, the limitations period for a separate and distinct asbestos-related disease begins to run when that disease becomes manifest, not when an earlier asbestos-related disease was diagnosed.
• Anderson v. Metalclad Insulation Corp. (1st Appellate District, 1st Division, 1999). A defendant seeking summary judgment on the asbestos limitations defense must present evidence that the plaintiff was disabled, meaning lost work time that precludes his regular occupation. Filing a workers' compensation claim for disability benefits does not by itself support that inference.
• Barr v. ACandS, Inc. (1st Appellate District, 2nd Division, 1997). Under Code Civ. Proc. section 340.2, a plaintiff who voluntarily files an asbestos injury suit starts the one-year limitations period running as to all potentially responsible defendants, whether or not they were named or served, so a later second suit is untimely. A plaintiff is also bound by injuries alleged in the first complaint as judicial admissions.
• Buttram v. Owens-Corning Fiberglas Corp. (1997). For deciding whether Proposition 51 can be applied prospectively, a cause of action for a latent disease like mesothelioma accrues when the plaintiff is diagnosed or otherwise discovers the illness or injury, not when undetected cellular changes began.
• Williamson v. Plant Insulation Co. (1st Appellate District, 3rd Division, 1994). Under former Probate Code section 573(c), pain and suffering damages and unincurred future economic losses do not survive a plaintiff's death before judgment, and neither section 669 nor nunc pro tunc entry applies when the plaintiff dies during trial before the case is ready for judgment. Under Code of Civil Procedure section 340.2, substantial evidence supported the jury's finding that the asbestosis claim was timely.
• Clark v. Workers'comp. Appeals BD. (2nd Appellate District, 7th Division, 1991). The limitations period in Labor Code section 5406.5 for an asbestos worker's death benefits is tolled until the dependent knows, or reasonably should know, that the death was work-related. A dependent's death benefits claim is independent of the worker's own claim, not an amendment to it.
• Uram v. Abex Corp. (1st Appellate District, 1st Division, 1990). Under Code of Civil Procedure section 340.2, the limitations period runs from disability or from when the plaintiff knew or should have known asbestos exposure caused it, under the Jolly inquiry-notice standard. A loss of consortium claim based on asbestos exposure is governed by the one-year period of section 340(3), subject to the discovery rule.
• General Foundry Service v. Workers'comp. Appeals BD. (1986). For an employee with a progressive occupational disease, the Board may tentatively rate permanent disability, order advances, and reserve jurisdiction for a final rating until the condition is permanent and stationary or the disability is total. Vocational rehabilitation should be considered before the final permanent disability rating, rather than applying the odd lot doctrine.
• Arndt v. Workers'comp. Appeals BD. (1st Appellate District, 1st Division, 1976). A dependent's workers' compensation death claim for a worker's death from an industrially caused disease must be filed within one year of the date of death or of the date the applicant knew, or reasonably should have known, that the death was industrially caused. The 240-week limit runs from the date of injury, which is when the disease was discovered or should have been discovered as work-related, not from the last exposure.

Colorado

• Miller v. Armstrong World Industries (1991). Under Colorado's discovery rule, learning of benign pleural thickening and calcification does not start the limitations period for a separate, distinct, later-manifested disease such as asbestosis. The court assumed asbestosis was a separate disease because the certified question said so.