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.

Louisiana

• Austin v. Abney Mills, Inc. (2nd Circuit, 2001). A tort cause of action for a long-latency asbestos disease does not accrue on mere exposure, because damage is required; under either the manifestation or contraction theory Hogue showed no injury before mesothelioma was covered by workers' compensation in 1975, so compensation was his exclusive remedy for negligence claims. Intentional tort claims not raised in the summary judgment motion cannot be dismissed on it.
• Emery v. Owens-Corporation (1st Circuit, 2001). Where the substantial injury-producing asbestos exposures occurred before Louisiana's comparative fault law took effect, pre-comparative-fault virile share principles apply rather than jury-assigned percentages. Under the pre-1976 statutes, a premises owner was not a statutory employer entitled to tort immunity, and the statutory employer question is for the court rather than the jury.
• Lilley v. Board OF Sup'rs OF State Univ. (3rd Circuit, 1999). A defendant that knows a building contains asbestos and lets people work there without warning them owes a duty to warn, and mental anguish damages can be awarded for asbestos exposure without proven physical injury. Medical monitoring costs require a significantly increased risk of serious latent disease, and a slight increase does not meet that test.
• Asbestos v. Bordelon, Inc. (4th Circuit, 1998). Where significant asbestos exposure occurred before the Louisiana Products Liability Act, pre-Act law governs, including strict liability for products unreasonably dangerous per se, by design or for failure to warn, and pre-comparative-fault virile share rules. A manufacturer is liable only if plaintiffs show frequent, regular exposure to its product, and prescription runs from the time a plaintiff has actual or constructive knowledge of an asbestos-related injury.
• Gauthe v. Asbestos Corp. Ltd. (5th Circuit, 1998). A wrongful death claim is governed by the law in effect when it accrued at the decedent's death, not at the time of exposure. Under either the Louisiana Workers' Compensation Act or the LHWCA, an employer is liable in tort only for an intentional tort, which requires intent to cause the harm.
• Scott v. Metropolitan Life Ins. Co. (4th Circuit, 1998). Asbestos claims in Louisiana are subject to a one-year prescriptive period that runs once the disease manifests with enough certainty to support a cause of action. Prescription was not suspended where the plaintiff was diagnosed with mesothelioma and was told it is caused by asbestos more than a year before suit.
• Bergeron v. Celotex Corp. (1991). Under Louisiana law a wrongful death action arises at the decedent's death, so the post-1976 workers' compensation exclusivity statute barred tort claims against the employer even though the exposure came earlier. A post-prescription amendment adding a new plaintiff does not relate back where the defendant had no notice of that plaintiff and no duty to look for her.

Maryland

• Curtin v. Cyprus Amax Minerals Co. (2020). A court lacking personal jurisdiction dismisses without prejudice, and under Rule 41(a)(2) a voluntary dismissal without prejudice should not be denied absent substantial prejudice to the defendant; loss of a statute of limitations defense does not by itself bar it.
• In re RailWORKS Corporation (2020). Under the Fourth Circuit's conduct test, a bankruptcy claim arises upon exposure, not manifestation, so an asbestos claim based on prepetition exposure is a dischargeable claim. A debtor that used reasonably diligent efforts to identify creditors may give unknown creditors publication notice of the bar date, which satisfies due process.
• Duffy v. CBS Corporation (2018). For asbestos-related claims, an injury arises at the time of last exposure to the asbestos product (the exposure approach), while a cause of action accrues on discovery of the disease. The 1970 statute of repose therefore does not bar claims based on exposure that ended before its effective date.
• Rockman v. Union Carbide Corp. (2017). Where a plaintiff offers no opposition and no supporting evidence, Maryland law bars these claims: warranty claims accrue on tender of delivery, market share liability is not recognized, and punitive damages require clear and convincing proof of actual malice.
• Arbogast v. AW Chesterton Co. (2016). Under Maryland law a plaintiff must show exposure to respirable fibers from a specific defendant's asbestos-containing product with frequency, regularity and proximity. A manufacturer is liable for third-party asbestos used with its product only in the narrow circumstances described in May. A strict liability claim for a product sold before Phipps (1976) may proceed because the claim accrues at diagnosis.
• RJ Reynolds Tobacco v. Stidham (2016). An order dismissing defendants with the right to refile, followed by resolution of all other claims, produces a final judgment. An appeal seeking joinder of tobacco and asbestos defendants is moot once no asbestos defendants remain in the case, though the court may comment on a recurring issue that evades review.
• Burns v. Bechtel Corp. (2013). Under CJ § 5-108, the exception for those in actual possession and control of the property requires a proprietary interest, not just control of a construction project. Asbestos dust shed during installation is not excluded from 'improvements' protected by repose; the (d)(2)(ii) exception applies only to manufacturers and suppliers.
• Wallace & Gale Asbestos Settlement Trust v. Carter (2013). Use plaintiffs in a Maryland wrongful death action must timely join the action to recover, and relation back cannot save their claims once the limitations period has run. Damages for a single harm such as lung cancer may be apportioned between asbestos and smoking where there is a reasonable basis for determining each cause's contribution, and apportionment is a causation question distinct from comparative fault.
• Georgia-Pacific Corporation v. Benjamin (2006). The discovery rule applies to wrongful death actions for occupational disease under § 3-904(g)(2). A claimant is on inquiry notice once they know the person was diagnosed with mesothelioma and was exposed to asbestos at work. In a survival action, the decedent's own knowledge can start the limitations period.
• Benjamin v. Union Carbide Corporation (2005). In a survival action the decedent's own knowledge governs inquiry notice, and knowing of a mesothelioma diagnosis plus asbestos exposure suffices. In a wrongful death action each beneficiary's own knowledge governs, and knowledge of the disease alone ordinarily does not give inquiry notice.
• Owens-Illinois, Inc. v. Cook (2005). Under the exposure approach, the noneconomic damages cap does not apply when the last asbestos exposure was before July 1, 1986, and this also covers a derivative loss of consortium claim. A premarital latent injury does not bar a consortium claim if neither spouse knew or could reasonably have known of it at marriage.
• Knauer v. Johns-Manville Corp. (1986). Maryland's three-year filing period in its Wrongful Death Act is a condition precedent to the claim, so federal Rule 15(c) relation back cannot save a late wrongful death claim in a diversity case. The general three-year limitations period for survival claims is an ordinary statute of limitations, so the survival claims relate back to the original filing.
• Smith v. Bethlehem Steel Corp. (1985). The second paragraph of § 58 tolls limitations only during the two months after a compensation award when the employer alone may sue a third party, not from accrual until an award. Under Pierce, a claim for a latent cancer medically separate and distinct from asbestosis accrues on discovery of the cancer, even if the worker has already sued in tort for asbestosis.
• Trimper v. Porter-Hayden (1985). The Maryland wrongful death limitation period runs three years from death with no discovery rule. For survival actions on latent disease, a cause of action accrues at discovery or at death, whichever comes first.
• Weinberg v. Johns-Manville Sales Corp. (1984). Under full faith and credit, a sister-state judgment has the effect it has in the rendering state. Under New York law, a dismissal because the decedent could not have sued at death (barred by limitations) is a failure to state a cause of action that bars a later suit, so it also bars a Maryland wrongful death action.
• Pierce v. Johns-Manville Sales Corp. (1983). When asbestos exposure first causes asbestosis and later causes lung cancer, a separate latent disease, and no tort recovery was sought for the asbestosis, the lung cancer cause of action accrues when the cancer is or reasonably should have been discovered.
• Harig v. Johns-Manville Products (1978). In latent disease cases, a cause of action in negligence or strict liability accrues when the plaintiff discovers, or through reasonable care and diligence should have discovered, the nature and cause of the injury.

Massachusetts

• Barraford v. T & N Limited (2014). A Chapter 11 plan confirmation with a discharge and channeling injunction lifts the automatic stay, so 11 U.S.C. § 108(c) gave only 30 days to sue after that. A tolling letter between class counsel and the CCR did not cover plaintiffs who were not that firm's clients, and equitable tolling did not apply.

Michigan

• Pyscher v. US (2017). Under Michigan law, which applies to an FTCA claim, both negligence and medical malpractice require an actual present injury, and exposure, increased risk or emotional distress without physical harm is not enough. The FTCA's six-month limit after denial of the administrative claim also barred any refiling.
• Larson v. Johns-Manville Sales Corp. (1986). A Michigan asbestosis claim accrues when the claimant knew or should have known of the disease (the discovery rule), and a claimant who did not sue for asbestosis may sue for a later cancer within three years of discovering the cancer.
• Larson v. Johns-Manville Sales Corp. (1985). A wrongful death action is governed by the limitation period and accrual rules of the underlying liability theory, so a decedent's time-barred personal injury claim bars the wrongful death claim. The court also declined to adopt a discovery rule for latent-disease products liability claims, holding that the claim accrues when the wrongful act occurs.
• Ins. Co. of No. Am. v. Forty-Eight Insulations (1978). Under occurrence-based liability policies, asbestos-related bodily injury occurs when fibers injure lung tissue after exposure, not when disease manifests, so every insurer on the risk during the exposure period must defend and indemnify, with costs apportioned by years of coverage.

Minnesota

• Palmer v. Walker Jamar Company (2020). An asbestos-related wrongful death claim accrues when the fatal disease manifests in a way causally linked to asbestos, or on the date of death, whichever is earlier. Minnesota does not apply a discovery rule requiring the plaintiff to know which product or defendant caused the disease.
• Palmer v. Walker Jamar Company (2019). A Minnesota asbestos wrongful-death claim accrues when the disease manifests in a way causally linked to asbestos, or at death if earlier, without the plaintiff needing to identify the specific defendant. Podvin bars claims against a dissolved corporation brought more than two years after dissolution, and the 2007 amendment to section 302A.781 does not apply retroactively.
• Filipek v. the Boeing Company (2017). Under Minnesota law, a products-liability claim accrues when the plaintiff knows of an asbestos-related disease and its connection to asbestos exposure. An earlier asbestosis diagnosis therefore started the limitations period, and a later mesothelioma diagnosis did not start a new one.
• Independent School Dist. No. 197 v. WR Grace (1990). Under Minnesota law a school district's asbestos-fireproofing removal claims were not barred as a matter of law by the statute of repose or limitations, because fraud tolling and class-action tolling raised fact issues. Such claims are not barred by the economic loss doctrine, and the state revival statute is constitutional. Federal asbestos regulation does not preempt the state-law claims.
• DeCosse v. Armstrong Cork Co. (1982). The Minnesota wrongful death statute's limitation period is subject to common-law tolling for fraudulent concealment, but not to a discovery rule. Asbestos-related wrongful death claims accrue on manifestation of the fatal disease causally linked to asbestos or on the date of death, whichever is earlier.

Mississippi

• City of Jackson v. Sandifer (2013). For a latent disease, the two-year workers' compensation limitations period runs from when the compensable injury becomes reasonably apparent, which is a fact question for the Commission. The Commission's causation finding stands if substantial, credible medical evidence supports it, and it resolves conflicts between medical experts.
• Garlock Sealing Technologies, LLC v. Pittman (2010). A complaint filed in the name of a person who died before filing is a nullity, so Rule 17(a) substitution is unavailable and an amended complaint cannot relate back to it. The limitations defense was not waived because the defendants had not actively participated in the litigation.
• Everitt v. Pneumo Abex, LLC (2009). A settlement agreement that set no express claim deadline implicitly required claims to be submitted by the date set for determining the total payable. The bankruptcy automatic stay does not automatically extend to a non-debtor co-defendant, so it did not suspend that deadline or the non-debtor's obligations.
• Owens-Illinois, Inc. v. Edwards (1990). In negligence or products liability actions involving latent disease, a cause of action under Miss. Code Ann. § 15-1-49 (1972) accrues when the plaintiff can reasonably be held to have knowledge of the injury or disease, not at the time of last exposure.

Missouri

• Hayden v. Cut-Zaven, Ltd. (Eastern District, 4th Division, 2020). A Commission finding that rejects a claimant's causation expert for lacking epidemiological studies misapplies Missouri law, which requires only medical evidence showing a probability that working conditions caused the disease. For occupational disease claims, the date of injury is when it becomes reasonably discoverable and apparent that an injury related to the exposure has been sustained.
• Clayton Center Assoc. v. WR Grace & Co. (Eastern District, 2nd Division, 1993). A building owner may recover in strict liability and negligence for asbestos contamination of the building from a fireproofing product. A claim accrues when asbestos fibers are released and a substantial, unreasonable risk of harm can be ascertained, and the economic loss doctrine does not bar recovery for damage to property other than the product itself.

Montana

• Rosling v. Associated Loggers Exchange (2019). Whether a condition is an occupational disease is decided by the claimant's lifetime of employment under the major contributing cause standard, and liability then falls on the employer, and its insurer, of last injurious exposure under a 'potentially causal' standard, even if the disease was diagnosed before that employment.
• Wommack v. National Farmers Union Property & Casualty Co. (2017). Under Montana's last injurious exposure rule and the 'potentially causal' standard, once a claimant proves an occupational disease, liability falls on the last insurer at risk when his working conditions were of the type and kind that could have caused the disease. That insurer carries the burden of proving it is not liable.
• Monroe v. Maco Workers Comp Trust (2014). Where an occupational disease has not previously been adjudicated against any employer, the "potentially causal" standard applies, so liability falls on the employer of the last employment with exposure of the type and kind that could have caused the disease. The one-year claim period for an occupational disease runs from when the claimant knew or should have known the condition resulted from that employment.
• Peterson v. Liberty NW Ins. Corp. (2013). Under § 39-72-403, MCA, an occupational disease claim must be filed within one year of when the claimant knew or should have known the condition resulted from an occupational disease; the period began when Peterson was diagnosed with asbestos-related disease and knew of his asbestos exposure at work.
• US v. WR Grace (2006). Knowing endangerment under the Clean Air Act is not a continuing offense, so conduct completed outside the five-year limitations period is time-barred. The statute requires only a knowing release and knowing endangerment, not knowledge of unlawfulness, and the emissions-standard clause is an affirmative defense rather than an element.
• Orr v. State (2004). State health and industrial hygiene statutes imposed a duty on the State to protect workers by warning them of known workplace dangers, and a special relationship took the case outside the public duty doctrine. Neither federal mine-safety law nor pre-1973 sovereign immunity barred the claims, because the claims accrued only when the injuries became manifest, after immunity was abolished.

Nebraska

• Osteen v. AC & S., Inc. (1981). Where an asbestos-related occupational disease develops over successive employments and its onset cannot be pinpointed, the employer of the last injurious exposure pays the entire award. That exposure need only be of a kind that could cause the disease, and the limitations period and benefit rate run from the date disability is first incurred.

Nevada

• State Indus. Ins. System v. Jesch (1985). Nevada's occupational disease time limits for dust diseases do not bar compensation for latent asbestos-related mesothelioma, and the last injurious exposure rule applies to successive-employer claims, so the claimant need not prove which one employment caused the disease.

New Jersey

• Hernandez v. Brenntag North America, Inc. (2016). Under the forum-defendant rule, removal is barred unless forum-state defendants were fraudulently joined, which requires claims against them to be wholly insubstantial and frivolous, without a reasonable basis in fact or colorable ground; the court may not reach the merits of the claims.
• In re GI Holdings, Inc. (2016). A building owner could not recover asbestos abatement costs from the former manufacturer in equitable indemnity or restitution where the manufacturer owed no duty to the tenants and the owner's abatement was routine maintenance rather than an immediately necessary response to a present hazard. The claims were also treated as recast time-barred tort claims.