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.

Indiana

• Holmes v. ACandS, Inc. (1999). A product liability claim for wrongful death resulting from an asbestos-related disease or injury accrues on the date of the decedent's death, so it is timely if filed within two years of death even if more than two years after diagnosis.
• Novicki v. Rapid-American Corp. (1999). Section 5.5 of the Indiana Product Liability Act, with its two-year discovery rule for asbestos claims, applies only to defendants that both mined and sold commercial asbestos; all other defendants are governed by the limitation and repose periods of Section 5. A defendant that concedes it did not both mine and sell asbestos cannot invoke Section 5.5 merely for argument's sake.
• Sears Roebuck and Co. v. Noppert (1999). A motion to correct errors cannot be treated as a T.R. 60(B) motion to substitute for a timely appeal absent extraordinary factors. The asbestos discovery-rule exception to the product liability limitations statute applies only to persons who mined and sold commercial asbestos, not to a seller of boilers containing some asbestos components.
• Knox v. AC & S, Inc. (1988). CERCLA § 9658's discovery rule applies only where a state claim accompanies an underlying CERCLA action for a release into the environment, so it does not preempt Indiana's products liability statute of repose, which bars asbestos claims based on products delivered more than the repose period before suit.
• Bunker v. National Gypsum Co. (1982). The three-year-from-last-exposure limitation for asbestos-related disability claims in the Occupational Diseases Act is constitutional, because the legislature determines what time period is reasonable and courts may not rely on medical evidence outside the record to strike it down.
• Bunker v. National Gypsum Co. (3rd District, 1981). The statute requiring asbestos disablement within three years after last exposure is unconstitutional as applied to asbestosis claimants, because the disease's long latency makes the limit a practical denial of the right to recover.

Iowa

• Ganske v. Spahn & Rose Lumber Co. (1998). Where an occupational disease is covered by the workers' compensation and occupational disease statutes, those statutes are the exclusive remedy against the employer even if the worker cannot recover benefits because the disease appeared after the statutory time period.
• Meyer v. Iowa State Penitentiary (1991). Iowa Code section 85A.12 states conditions that must exist before a right of compensation arises rather than a statute of limitations, so the discovery rule cannot be used to extend its time periods.
• Wilber v. Owens-Corning Fiberglass Corp. (1991). Diagnosis of asbestosis does not start the statute of limitations running on a separate, distinct, later-manifested disease such as mesothelioma that stems from the same asbestos exposure.

Kansas

• Harding v. KC Wall Products, Inc. (1992). The legislature may constitutionally revive claims barred by a statute of limitations if it expressly says so, but it cannot revive claims barred by a statute of repose. The 1990 revival provision in K.S.A. 60-3303(e) applies only to the two-year limitation period, so it did not violate the Kansas or U.S. Constitution.
• Menne v. Celotex Corp. (1989). The ten-year provision in K.S.A. 60-513(b) is a statute of repose, and therefore substantive rather than procedural. Defendants' stipulation to apply Nebraska substantive law waived it as a defense.

Kentucky

• Letcher County Board OF Education v. Hall (2019). Where an employer asserts the statute of limitations, it bears the burden of proving the defense, and the ALJ's finding is reversible if clearly erroneous under the evidence. The statute requires only that exposure could independently cause the disease, not that it did, and asbestos tile remaining in the school until 2003 compelled a finding that the 20-year filing period had not run.
• Letcher County Board OF Education v. Hall (2018). Under KRS 342.0011(4), an exposure is injurious if it could independently cause the disease. Where the evidence compelled a finding that asbestos exposure continued until retirement in 2003, the 20-year limit for asbestos-related disease claims was met, and the Board did not exceed its review authority in so finding.
• Bruszewski v. Motley Rice, LLC (2012). Under Kentucky law, a malpractice claim for failing to file suit before the limitations period ran accrues when that period expires, even if the client could still recover from bankruptcy trusts. Kentucky law does not allow recovery of "lost" punitive damages in a legal malpractice action.
• RT Vanderbilt Company, Inc. v. Franklin (2009). Under the discovery rule, a claim does not accrue until the plaintiff knows or reasonably should know of the injury and who may have caused it. A jury may decide reasonable diligence when the facts are disputed, and a defendant's misrepresentation about its product bears on that question. A trial court may strike a party's defenses as a discovery sanction after willful violations, if it considers willfulness, prejudice, warnings, lesser sanctions and proportionality and makes findings.
• Fleischman v. CSX Transportation, Inc. (2007). Under Babbitt, a FELA release that settles a specific, pending asbestos claim for payment can bar a later mesothelioma claim when mesothelioma was a known possible result of asbestos exposure at signing. Under FELA's discovery rule, a claim accrues when the plaintiff knows or reasonably should know both the injury and its cause.
• Combs v. Albert Kahn Associates, Inc. (2006). Under Kentucky's one-disease approach, a plaintiff with asbestosis who already sued and claimed increased cancer risk must sue within one year of the first diagnosis; Carroll's later-accrual rule for lung cancer is a narrow exception that did not apply here.
• Heizer v. New Orleans and Pacific Railway Co. (2004). A FELA survival claim accrues when the worker knew or should have known of both the injury and its cause, and the three-year period is not extended here by mental incapacity. A FELA wrongful death claim is extinguished only if the survival claim's limitations period expired during the worker's lifetime; otherwise it runs three years from death.
• Carroll v. Owens-Corning Fiberglas Corp. (2000). Asbestosis and lung cancer are separate and distinct diseases, so a cause of action for lung cancer accrues on the date of the cancer diagnosis rather than the earlier asbestosis diagnosis.
• Capital Holding Corp. v. Bailey (1994). A negligence claim for asbestos exposure does not accrue, and no damages for increased risk or fear of cancer are available, until the plaintiff shows some harmful result from the exposure. The tort of outrageous conduct is intentional, needs no physical contact or injury, and a failure to comply strictly with the prehearing statement rule (CR 76.03) is not grounds to withdraw a decided issue.
• Louisville Trust Co. v. Johns-Manville Products (1979). The discovery rule used in Kentucky medical malpractice cases also applies to tort actions for injury from latent disease caused by exposure to a harmful substance, so a claim accrues when the plaintiff knew or should have known of the injury and its possible cause in the defendant's conduct. Columbus Mining Co. v. Walker was overruled.

Louisiana

• Ragusa v. Louisiana Insurance Guaranty Association (2024). Claims against LIGA vest when the insurer is declared insolvent, so the liquidator's claim-filing deadline applies. A wrongful death claim is a separate cause of action from the survival action, so a timely survival action does not save a wrongful death claim filed after the deadline.
• Del Vescovo v. Air & Liquid Systems Corporation (4th Circuit, 2023). Under both the federal discovery rule and Louisiana's contra non valentem, the limitations period in a latent disease case starts when the plaintiff discovers or reasonably should have discovered the injury and its cause. The plaintiff must show a reasonable inquiry was made or would have been futile.
• Ragusa v. Louisiana Guaranty Insurance Association (2023). The LHWCA applies as it existed when the disease manifested, and its exclusivity provision preempts a covered worker's state negligence and intentional tort claims against his employer. Awareness of asbestos risk does not show that mesothelioma was substantially certain to result.
• Williams v. Boeing Company (2022). Under Louisiana law, a plaintiff need only show a reasonable jury could find it more likely than not that he inhaled the defendant's asbestos fibers, and a court may not draw inferences against the non-movant on summary judgment. Wrongful death and survival actions are separate causes of action, so a late wrongful death claim by new plaintiffs does not relate back to the decedent's original suit.
• Sentilles v. Huntington Ingalls Inc. (2021). Under Louisiana's significant tortious exposure theory, a long-latency disease claim is a single cause of action. If it accrued before September 1, 1975, the Louisiana Workers' Compensation Act does not bar it, even if exposure continued after that date.
• Williams v. Lockheed Martin Corporation (2021). A defendant may remove under the federal officer statute based on the full state-court record if it raises a colorable government contractor defense. Mesothelioma claims accruing after the 1975 Louisiana workers' compensation amendment are barred by the exclusive remedy provision, and plaintiffs needed evidence of significant asbestos exposure before that date to avoid the bar.
• Calamia v. Parish of Jefferson (5th Circuit, 2020). A suit filed in an improper venue interrupts prescription only as to a defendant properly served within the prescriptive period. Plaintiffs did not show proper venue or proper service on the Parish in the earlier Orleans Parish suit, so prescription was not interrupted.
• Calamia v. Parish of Jefferson (5th Circuit, 2019). Documents merely attached to memoranda are not evidence, and a trial court cannot grant an exception of prescription based on pleadings that were not properly offered and admitted into evidence.
• Lee v. American Supply Co. (3rd Circuit, 2019). A claim prescribes only from when damage has manifested itself with enough certainty to support a cause of action, judged by what the plaintiff was reasonably told and knew. A patient told his condition was benign and needed only monitoring was not charged with knowledge of an asbestos-caused mesothelioma until a malignancy was diagnosed.
• Rivera v. Huntington Ingalls, Inc. (2018). Under Louisiana law, wrongful death and survival claims prescribe one year from death. The discovery rule and the concealment rule of contra non valentem did not save the claims, because the facts needed to sue were known or reasonably knowable more than a year before suit was filed.
• Boyd v. Boeing Company (2016). A successor judge may reconsider an interlocutory order, but a late amendment of pleadings is judged under Rule 16(b) good cause, and an order allowing it was not a manifest error of law where plaintiffs gave a reasonable explanation for the delay in a latent disease case and no substantial prejudice was shown.
• Davidson v. Georgia Pacific LLC (2014). An expert's "every exposure" theory of asbestos causation is inadmissible under Rule 702 and Daubert and conflicts with Louisiana's substantial factor test; without other expert causation testimony, plaintiffs cannot create a genuine dispute on causation.
• Davidson v. Georgia Pacific LLC (2014). Under Louisiana law, a voluntary dismissal of an earlier suit erases any interruption of prescription it caused, so a claim that prescribed before the decedent's death cannot support a survival action. A dismissal filed by the decedent's counsel after his death still counted as voluntary.
• Luna v. AW Chesterton Company (1st Circuit, 2014). Prescription on an asbestos survival claim began when mesothelioma was diagnosed, and a remaining tortfeasor must prove the other defendants' products were a substantial cause of the injury to obtain a virile share reduction.
• Phillips v. Abb Combustion Engineering, Inc. (2013). Where the nonmovant first raises a serious choice-of-law question in her opposition, so that the law governing the time bar is in dispute, summary judgment on prescription and peremption is not well suited until the movants adequately brief the issue and support it with competent evidence.
• Watts v. Georgia-Pacific Corp. (1st Circuit, 2013). Prescription interrupted against a timely sued solidary obligor (here the premises owner Dow, whose liability was proven) is effective against all solidary obligors, and under pre-comparative-fault law a proven co-obligor's virile share reduces the recoverable award. Awards of general damages are not disturbed absent an abuse of the jury's great discretion.
• Marcel v. Delta Shipbuilding Co. (4th Circuit, 2010). Under the law in effect when Delta dissolved in 1946, dissolution did not extinguish an accrued cause of action, so it did not bar a direct action against the dissolved corporation's insurer. The 1988 direct action amendments apply only to causes of action accruing on or after January 1, 1989.
• Marchand v. Asbestos Defendants (4th Circuit, 2010). Under Cole v. Celotex's significant exposure test, a long-latency asbestos claim accrues when the repeated exposure occurs, so the survival claim accrued in 1943-45, before the 1989 Direct Action Statute amendments and the 1969 corporate-law cutoff. The wrongful death claim accrues at death and is subject to the peremptive bar on claims against dissolved corporations.
• DiBenedetto v. Noble Drilling Company (4th Circuit, 2009). A plaintiff with mesothelioma whose first significant exposure predated 1975 (when Louisiana's compensation act began covering the disease) is not limited to LHWCA benefits and may bring a state tort suit against employers and their executive officers. A plaintiff may also dismiss defendants with prejudice, and article 1671 does not give the trial court discretion to refuse.
• Spillman v. Anco Insulations, Inc. (1st Circuit, 2008). A cause of action for a long-latency occupational disease accrues once there has been a significant tortious exposure, not at diagnosis. Under this circuit's precedent, mesothelioma was not covered by workers' compensation before the 1975 amendment, so the employer's immunity defense, on which the employer bears the burden, failed for a claim that accrued before 1952.
• Graves v. Riverwood International Corp. (2nd Circuit, 2007). A worker's tort claim against his employer vests when significant asbestos exposures occur. Exposures before Louisiana's 1952 occupational disease coverage therefore left the claim outside the later workers' compensation scheme. A JNOV or new trial is denied where reasonable minds could differ and the verdict is supportable by a fair interpretation of the evidence.
• Adams v. Owens-Corning Fiberglas Corp. (1st Circuit, 2005). A tort claim against an employer for asbestos exposure accrues under the law in force at the time of significant exposure, so exposure before the 1972 LHWCA extension to land-based work and before workers' compensation covered a disease does not bar a tort suit. The exception of no cause of action based on an affirmative defense is sustained only if the petition excludes every reasonable hypothesis other than the defense.
• Cichirillo v. Avondale Industries, Inc. (2005). A suit filed before a tort claim becomes actionable is premature and cannot interrupt Louisiana prescription. A 1992 Mississippi asbestosis suit therefore did not interrupt prescription on a mesothelioma claim that was not diagnosed until 1999.
• Cichirillo v. Avondale Industries (4th Circuit, 2004). A timely suit in a court of competent jurisdiction and venue in another state interrupts Louisiana prescription, including as to solidary obligors, and the plaintiff's Mississippi complaint listing mesothelioma among the conditions claimed gave fair notice to interrupt it.
• Hughes v. Olin Corporation (2nd Circuit, 2003). Under Louisiana's one-year prescription and the discovery rule, prescription on an asbestos-related mesothelioma claim began only when the plaintiff learned of a definitive mesothelioma diagnosis, not when cancer was suspected or probable.
• Landry v. Avondale Industries, Inc. (2003). A loss of consortium claim accrues only when the injured person's condition deteriorates enough that the family is actually deprived of consortium, but applying the 1982 amendment to art. 2315 to pre-1982 conduct is an impermissible retroactive application of a substantive law. Because the claim arose after 1975-1976, employers and executive officers are also immune under La. R.S. 23:1032.
• Austin v. Abney Mills, Inc. (2002). In a long-latency occupational disease case where the plaintiff has the disease, a tort cause of action accrues, for purposes of determining the applicable law, when asbestos exposures are significant and later result in manifestation of damages (the significant tortious exposure theory), not at manifestation or disability.
• Hoerner v. Anco Insulations, Inc. (4th Circuit, 2002). In Louisiana asbestos cases a defendant is liable only if the plaintiff's exposure to its products was a substantial factor, shown by frequent and regular exposure. An executive officer is liable only with a personal duty to provide a safe workplace, including some control over purchasing equipment and supplies.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). In a long-latency asbestos case, a cause of action accrues, for choosing between pre- and post-1976 law, when exposures were significant enough to start a disease process that progresses independently of further exposure. Under pre-comparative-fault Louisiana law, a settling or bankrupt solidary obligor found liable counts as a virile (pro rata) share, and co-employee safety officers are liable only for a personal breach of a delegated duty.