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.

Colorado

• Miller v. Celotex Corp. (1989). Under Colorado's products liability statute, a claim arises when the plaintiff knows or should know the facts of his injury and its wrongful cause, not when he learns of a specific legal theory such as failure to warn.

Connecticut

• In re Nash Engineering Company (2024). A bankruptcy trustee suing under Connecticut's fraudulent transfer act stands in a creditor's shoes, and a tort claimant's claim arises on the date of injury, so she can be a creditor before any transfer even if her claim was not yet actionable. The two-year period in Bankruptcy Code section 548 is a statutory element not subject to equitable tolling.
• BellSouth Telecommunications v. WR Grace (1996). Under the Connecticut Product Liability Act, an asbestos abatement claim accrues when the plaintiff knows or should know of actual contamination and of the causal link between the defendant's product and that contamination; it does not wait until the full extent of the loss is known.
• Bauer v. Johns-Manville Corp. (1984). The Connecticut products liability limitations statute (three years), amended to cover wrongful death, applies to products liability suits brought after October 1, 1979, so it governs this suit. A spouse cannot recover consortium damages for the death itself, but can recover for consortium loss caused by the decedent's injuries before he died.

Delaware

• Burhenn v. Celotex Asbestos Settlement Trust (2024). A claim against an asbestos settlement trust is governed by the trust plan's own filing deadline (three years from first diagnosis), and tolling under the plan applies only if the trust claim was timely filed. Even under ordinary limitations law, via Delaware's borrowing statute, the claim was time-barred, and cross-jurisdictional tolling does not apply where the original foreign filing was untimely.
• Braxton v. J-M Mfg. Co. (In re Asbestos Litigation) (2024). Under Texas Civil Practice and Remedies Code § 33.004, a defendant need only plead a factual basis showing a third party's potential responsibility to designate it. A bankruptcy proof of claim can support that pleading, and a designation after limitations has run is not barred where the defendant timely disclosed the third parties.
• Weddle v. BP Amoco Chemical Company (2019). Delaware treats each asbestos-related disease as a separate accident, so a workers' compensation settlement of an earlier disease cannot waive compensation for a different disease that had not yet manifested; such a waiver is void.
• Kivell v. Georgia Pacific Consumer Prods. LP (In re Asbestos Litigation) (2018). Under 10 Del. C. § 8121 the shorter Louisiana one-year limit applied, and wrongful death and survival claims filed after that period are supplemental rather than amended pleadings, so under Delaware procedural rules they do not relate back to the original complaint.
• Dabaldo v. Urs Energy & Construction (2014). Delaware treats each asbestos-related disease as a separate claim with its own two-year limitations period. The period for asbestosis began only when the plaintiff was actually diagnosed with it, not when he was diagnosed with pleural disease or when a report loosely used the word asbestosis.
• Clineff v. BP Amoco Chemical Co. (In re Asbestos Litigation) (2011). In an asbestos case the limitations period begins when the plaintiff is chargeable with knowledge that the condition is attributable to asbestos exposure; reviewing a death certificate listing mesothelioma put the plaintiffs on inquiry notice, so the discovery rule tolled the period only until December 1997.
• Ashworth v. Pneumo Abex (In re Asbestos Litigation) (2011). Under Delaware's borrowing statute the shorter Delaware limitations period applied to the survival claim. A wrongful death claim accrues no earlier than the decedent's death. In a multi-defendant asbestos case, but-for causation does not apply, and the Utah Supreme Court was not expected to apply it.
• In re Grossman's, Inc. (2009). Under Third Circuit precedent (Frenville and Schweitzer), a bankruptcy claim arises when the underlying state-law cause of action accrues, and asbestos injury claims do not arise until the injury manifests. Warranty claims accruing at delivery in 1977 under N.Y. UCC § 2-725 accrued prepetition and were discharged.
• In re WR Grace & Co. (2009). Under California law, and as the court predicted for Delaware, an asbestos-in-building property damage tort claim does not accrue until physical injury from contamination (release of fibers) occurs, not on mere knowledge of asbestos's presence; the discovery rule only delays accrual, and the defendant bears the burden of proving contamination outside the limitations period.
• In re Grossman's Inc. (2008). Under Third Circuit law (Frenville, Schweitzer) and New York law, an asbestos personal injury claim arises when the injury manifests, so a claim that manifested years after plan confirmation was not discharged by the plan or barred by the confirmation injunction.
• Sheppard v. AC & S. Co. (1985). Under Delaware's discovery rule, the two-year limitations period starts when the plaintiff is chargeable with knowledge that his physical condition is attributable to asbestos exposure. Separate asbestos-related diseases, such as pleural thickening and pulmonary asbestosis, can be treated as separate causes of action with separate accrual dates.

District of Columbia

• Rocha v. Brown & Gould, LLP (2015). Under D.C. law, the continuous representation rule tolls the limitations period on a legal malpractice claim only until the particular matter in issue ends, and a retainer limited to trial-level work defines that matter. A malpractice claim also fails where the alleged error was a reasonable professional judgment on unsettled law.
• Washington Hospital Center v. District of Columbia Department of Employment Services (2004). The 30-day notice period under the D.C. Compensation Act begins when the employee is aware, or with reasonable diligence should have been aware, of a relationship between the injury and the employment; a mere possibility of a connection does not trigger it. The agency's finding of timely notice was upheld because substantial evidence supported it.
• Owens-Corning Fiberglas Corp. v. Henkel (1997). A Batson objection must be raised before the jury is sworn or it is waived; state-of-the-art evidence of what the industry knew is admissible to show what a manufacturer should have known; and the new one-year asbestos limitations statute (D.C. Code § 12-311) cannot be applied to bar a claim already accrued and timely under the prior three-year statute.
• District of Columbia v. Owens-Corning Fiberglas Corporation (1989). The District of Columbia, when suing in its municipal capacity to vindicate public rights and perform public functions, enjoys a common-law immunity (nullum tempus) from the statutes of limitations and repose. Removing widespread asbestos contamination from public buildings is such a public function.
• Fearson v. Johns-Manville Sales Corp. (1981). A claim for lung cancer accrues when the cancer is diagnosed, not when earlier, separate asbestosis was diagnosed. A voluntary compensation settlement never approved by a deputy commissioner, judge or board is not an "award in a compensation order" that assigns the claimant's third-party rights to the employer under § 33(b).

Florida

• Israel v. John Crane, Inc. (2022). Under the maritime three-year statute of limitations, a claim accrues when the plaintiff knew or should have known of the injury and its cause, which does not require actual knowledge or a physician's confirmation. Deposition testimony that irreconcilably contradicts an earlier interrogatory response may be disregarded under the sham affidavit rule.
• Flomenhoft v. Georgia-Pacific LLC (2013). Under Florida law, a spouse can recover for loss of consortium only if married to the injured person at the time of the injury, and this rule applies to latent asbestos disease, so the marriage must predate the exposure.
• American Optical Corporation v. Spiewak (2011). A cause of action for asbestos-related disease accrues on diagnosis without any threshold of physical impairment, so it is a vested right; applying the Act's new impairment requirement to pending accrued claims destroys vested rights and violates the Florida due process clause.
• Celotex Corp. v. Meehan (1988). Florida's borrowing statute applies only if the significant-relationships test shows the cause of action arose in another state, and the place where the disease was discovered or diagnosed is just one factor. A wrongful death action is derivative of the injured person's own right to recover.
• Celotex Corp. v. Copeland (1985). Market share liability is not needed, and the court did not adopt it, where the plaintiff can identify at least some manufacturers of the products that injured him. When a progressive asbestos disease manifested itself is a fact question that summary judgment cannot resolve.
• Eagle-Picher Industries, Inc. v. Cox (3rd District, 1985). A plaintiff with asbestosis cannot recover damages for an enhanced risk of future cancer, but keeps the right to sue later if cancer develops, and that later suit is not barred by the rule against splitting causes of action. Evidence of the cancer risk is admissible to prove present fear-of-cancer distress, because inhaling asbestos counts as a physical impact and asbestosis supplies the required physical injury.
• Keene Corp. v. Bahl (1st District, 1985). Under Florida's occupational disease statute, the employer in whose employment the worker was last injuriously exposed is solely liable, and the 350-week limit after last exposure applies only to death claims, not disability claims.
• Meehan v. Celotex Corp. (3rd District, 1985). For Florida's borrowing statute, a tort cause of action arises when the plaintiff knew or should have known of the cause of action or the invasion of his legal rights, not at the time of exposure; the prior Marano holding to the contrary was overruled.
• Nance v. Johns-Manville Sales Corp. (3rd District, 1985). Under Florida's borrowing statute, a tort claim arises where the last act necessary to establish liability occurs, which is where the plaintiff knew or should have known of the right to sue. Whether Florida's or Virginia's limitations period applies therefore turns on where that knowledge arose.

Georgia

• Union Carbide Corp. v. Brannan (2021). A plaintiff may voluntarily dismiss and refile under OCGA § 9-11-41(a) even though no proper substitution of a deceased party's representative was made within 180 days, so the prior pending action doctrine did not bar the refiled claims.
• Putzel Elect. Contractors v. Jones (2006). Under OCGA § 34-9-281(b)(2), the one-year filing period was met whichever way it was measured, because the worker learned of the link to asbestos and was definitively diagnosed in the same year. The Board's findings on injurious exposure stand if any evidence supports them.

Illinois

• Smith v. Crane Co. (2014). Under Illinois appellate decisions (Monroe and Gillenwater), a defendant owes no duty to a spouse for loss of consortium if the couple was not married when the exposure or injury occurred, and the discovery rule does not change this.
• King v. Paul J. Krez Co. (1st District, 5th Division, 2001). Installing insulation, including sales incidental to installation, is an activity protected by the construction statute of repose (735 ILCS 5/13-214(b)), and the discovery rule does not extend that repose period.
• Westinghouse Airbrake Co. v. Indus. Com'n (3rd District, Industrial Commission Division, 1999). The Workers' Compensation Act, as amended in 1984, covers asbestos-caused injury and resulting death, but a claimant whose last exposure predated those amendments has no claim under it, and disease claims belong under the Occupational Diseases Act, whose section 1(f) limit does not apply to Workers' Compensation Act claims. A survivor's death-benefit claim is governed by the law in effect on the date of death.
• Betts v. Manville Personal Injury Trust (4th District, 1992). A new trial was required because of plaintiffs' counsel's prejudicial tactics, an undisclosed expert, speculative cancer-risk evidence, evidence from another plant not shown to be similar, and over-broad collateral estoppel against Grefco. A prior finding fixing when a plaintiff learned of her injury can bar a later suit on limitations grounds, and a plaintiff who gets no allocation of an earlier settlement bears the burden on the setoff.
• Whitney v. Industrial Com'n (4th District, Industrial Commission Division, 1992). Section 1(f) of the Workers' Occupational Diseases Act acts as a statute of repose requiring disablement within three years of last asbestos exposure, and the 1984 extension of the death-claim filing period in section 6(c) did not displace that requirement.
• Board of Education v. A, C & S, Inc. (1989). Friable asbestos-containing material contaminating a building can be pleaded as physical damage to other property, so tort claims are not barred by the economic loss doctrine. School districts suing to recover abatement costs assert a public right and are not subject to the statutes of limitations.
• Blazek v. Nicolet, Inc. (1st District, 1988). A statute of repose cannot be applied retroactively to end a cause of action unless the plaintiff had a reasonable time after its effective date to sue. A strict liability suit filed about seven years after the effective date, and over 32 years after exposure, was not filed within a reasonable time.
• VaSalle v. Celotex Corp. (1st District, 1987). Under the discovery rule, asbestos-related lung cancer is a legal injury separate and distinct from earlier-diagnosed asbestosis, so its limitations period begins when the plaintiff knows or should know of the cancer and its wrongful cause, not at the asbestosis diagnosis.
• Costello v. Unarco Industries, Inc. (1986). Where a cause of action was inchoate when the 1979 statute of repose took effect and accrued after that date, the plaintiff gets a reasonable time after the effective date to sue, and a suit filed within three years of that date and two years of discovery is timely.
• Costello v. Unarco Industries, Inc. (4th District, 1984). Under the Illinois product liability statute of repose, which applies to causes of action accruing on or after January 1, 1979, an asbestos strict liability claim accrues on discovery of the injury, and the statute is constitutional. A negligence complaint in an asbestos case must plead the specific disease and each defendant's place in the chain of production.
• Hobby v. Johns-Manville Sales Corp. (1983). Under Illinois law, survival-type and Family Expense Act claims are derivative and subject to the two-year personal injury limitations period running from the decedent's diagnosis, while loss of consortium in a wrongful death action is governed by the Wrongful Death Act's limitations period. The products liability repose period turns on when the disease manifested, a question for trial.
• Nolan v. Johns-Manville Asbestos (1981). A cause of action accrues when the plaintiff knows or reasonably should know both that an injury occurred and that it was wrongfully caused by another; when that knowledge was acquired is a question of fact unless the facts are undisputed.
• Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1st District, 1979). In a case involving a disease that develops slowly over many years, the limitations period begins when the plaintiff knew or reasonably should have known he was injured by the defendant's wrongful conduct or defective product. When the evidence conflicts about that date, it is a fact question that cannot be resolved on summary judgment.

Indiana

• Hostetler v. Johnson Controls, Inc. (2021). A trespass claim over asbestos fails where there is no evidence that the debris moved actually contained asbestos or that asbestos reached the plaintiffs' homes, because a jury would have to speculate. Under Indiana's modified impact rule, plaintiffs without a manifest injury cannot recover for fear of future illness without admissible evidence of increased health risk.
• TH Agriculture and Nutrition, LLC. v. Akaiwa (2007). The asbestos-specific accrual rule in Indiana Code 34-20-3-2 applies only to persons who mined and sold commercial asbestos, so a mere distributor is subject to the ten-year statute of repose in Section 1. The principal-distributor provision in 34-20-2-4 does not make a distributor a miner for this purpose.
• Jurich v. John Crane, Inc. (2005). Under the Indiana Supreme Court's Ott test, the repose statute's exception applies only if a reasonably experienced physician could have diagnosed a clinically recognized, symptomatic or routinely detectable asbestos-related disease within the ten-year period; asymptomatic cellular damage detectable only by unethical invasive testing does not qualify.
• Harris v. AC & S., Inc. (2002). The asbestos exception to the product liability statute of repose, which gives two years from knowledge of an asbestos-related disease, does not require a defendant to have both mined and sold commercial asbestos. A claim filed within two years of diagnosis is therefore timely.
• Allied Signal, Inc. v. Herring (2001). The asbestos exception to Indiana's ten-year products liability statute of repose applies to persons who mined and persons who sold commercial asbestos, not only to those who did both. Whether defendants sold "commercial asbestos" was waived because it was not raised in the trial court.
• Parks v. AP Green Industries, Inc. (2001). A plaintiff must produce evidence supporting a non-speculative inference that he inhaled asbestos dust from the defendant's product. Indiana's asbestos exception to the ten-year statute of repose reaches those who mine or sell commercial asbestos, and a later-developed asbestos disease such as lung cancer is a new injury with its own two-year period.