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.

Ohio

• Greenburg v. Hiner (2005). A securities fraud limitations period begins when investors are on inquiry notice, meaning they have seen "storm warnings" suggesting the possibility of fraud, even if they do not know the full extent of the fraud or the defendants' state of mind. Claims filed more than one or two years after that point are time-barred.
• Anderson v. AC & S., Inc. (8th Appellate District, 2003). Under FELA, a release is valid only if it settles an accrued claim for a known injury; a 1986 release for asbestosis could not bar a later-diagnosed mesothelioma claim that had not yet accrued, and Section 55 voids such a release to that extent.
• Heard v. Conrad (7th Appellate District, 2000). Under R.C. 4123.85 and the White v. Mayfield guideline, a retiree who was diagnosed and treated after voluntarily retiring must file within two years of treatment or diagnosis, whichever is later. The 'quit work' element does not apply to such a retiree, so the filing period cannot remain open indefinitely.
• Owens-Corning Fiberglas Corp. v. Am. Centennial Ins. (1995). Under Ohio law, a continuous-injury trigger applies to asbestos claims under these excess policies, and the insured may recover in full from any one triggered insurer. The court also declined to adopt a separate known loss doctrine and held that Ohio law bars insuring punitive damages.
• Columbus Bd. of Edn. v. Armstrong World (1993). The discovery rule applies to asbestos property damage claims, and the claim accrues when the owner knew or should have known its property was damaged, here at the first abatement. An amendment adding a new defendant relates back only if there was a mistake about identity, not mere lack of knowledge.
• Gradwell v. AS Helbig Constr. Co. (1989). Under State ex rel. Burnett v. Indus. Comm., a claimant in a de novo workers' compensation appeal may add additional employers as parties at the trial court level, even after the two-year limitations period has expired.
• O'stricker v. Jim Walter Corp. (1983). When an injury does not manifest itself immediately, a bodily injury claim under R.C. 2305.10 arises when the plaintiff is informed by competent medical authority of the injury, or should have become aware of it through reasonable diligence, whichever is first.

Oklahoma

• Fautheree v. McCaffrey (3rd Division, 2005). Oklahoma's workers' compensation limitations exception for asbestosis, silicosis and nuclear radiation exposure does not extend to mesothelioma or other asbestos-related diseases, so a claim not filed within two years of last exposure is barred.

Oregon

• Mason v. Mt. St. Joseph, Inc. (2009). A 'product liability civil action' under ORS 30.900 lies only against a manufacturer, distributor or seller of the defective product that caused the harm. A party that only directed or reused asbestos products occasionally and noncommercially is not such a defendant, so the asbestos-specific limitations period in ORS 30.907 does not apply.
• Matter of Fossum (1980). A widow's claim for death benefits under ORS 656.807(2) is an independent claim that may be filed within 180 days after the worker's death, and it is not barred because the worker did not file within five years after his last exposure. Any ambiguity in the statute is resolved in favor of compensation.
• Matter of Fossum (1980). Under ORS 656.807, an occupational disease claim must be filed within five years after last exposure in covered employment. The 180-day death-claim provision only extends that period by 180 days from death and does not revive an already barred claim.

Other federal courts

• Barraford v. T&N Limited (2015). A bankruptcy reorganization plan that unconditionally allows a trust to sue the debtor in the ordinary course terminates the automatic stay for those claims, which starts the thirty-day window under Code § 108(c)(2). Without plan language that tolls limitations periods, the claims are time-barred once that window closes.
• Anderson v. Bondex International, Inc. (2014). An amended complaint relates back under Fed. R. Civ. P. 15(c)(1)(B) only if it shares a common core of operative facts with the original pleading, and the original pleading must give defendants fair notice of the amended claim.
• Bath Iron Works Corp. v. US Dept. of Labor (2003). Whether a claimant became aware, or with reasonable diligence should have become aware, of the link between employment, disease and death under 33 U.S.C. § 913(b)(2) is a fact-intensive question reviewed only for substantial evidence. If the ALJ found the claimant had no reason to suspect a link, no separate diligence findings are needed.
• Blanding v. Director, Owcp (1999). An employer or carrier that fails to rebut the 33 U.S.C. § 920(b) presumption of notice is treated as having notice, so its failure to file the required § 930(a) report tolls the limitations period under § 930(f). The Board may not substitute its own factual findings for the ALJ's findings supported by substantial evidence.
• Cochran v. EI DuPont de Nemours (1991). Admiralty tort jurisdiction requires both navigable-waters locality and a nexus to traditional maritime activity, and a sailor's exposure to dust from a land-usable nonskid deck coating lacked that nexus. Under Virginia law the claim accrued when the damage occurred, and the 1985 asbestos-diagnosis accrual provision was not applied retroactively to a claim that accrued earlier.
• O'brien v. National Gypsum Co. (1991). Circumstantial evidence can suffice to prove exposure to a particular defendant's asbestos product. A very rare disease with asbestos as its only known cause, plus testimony that products were used interchangeably at the only exposure site, supports a jury finding of liability.
• Slaughter v. Southern Talc Co. (1991). Under Texas law a plaintiff must show that he more probably than not breathed asbestos fibers from the defendant's product, which can be shown circumstantially by frequent, regular work near where the product was likely installed. Wrongful death substitution by spouses already in the suit relates back to the original complaint and is not barred by limitations.
• Howell v. Celotex Corp. (1990). Because medical experts disagreed about whether asbestos-related pleural thickening is an injury, it is not a compensable injury as a matter of law under predicted Pennsylvania law and is a question of fact for the jury. Treating pleural thickening as an injury for limitations purposes does not require treating it as one for liability.
• Kraciun v. Owens-Corning Fiberglas Corp. (1990). Under Iowa's discovery rule, a plaintiff is on inquiry notice only on gaining knowledge sufficient to suggest a problem. General awareness of asbestos hazards or of exposure does not by itself show knowledge of an asbestos-related injury, and where physicians gave reassuring or unrelated explanations, when the plaintiff should have known is a fact question.
• Kaiser v. Armstrong World Industries, Inc. (1989). Under Puerto Rico's one-year limitations period, the claim begins to run when the plaintiff knows of the injury and of who caused it, and a plaintiff need not know the full extent of the injury or the exact identity of each tortfeasor. A plaintiff who sues late bears the burden of proving he lacked that knowledge.
• Smith v. US (1989). The two-year limit in the Suits in Admiralty Act is jurisdictional and cannot be extended or tolled, and the Clarification Act bars suit by a seaman's survivor until the administrative claim is disallowed, so a premature first suit and a late second suit were both properly dismissed.
• Joyce v. AC and S., Inc. (1986). Under Virginia law a personal injury plaintiff has a single, indivisible cause of action that accrues at the first injury, so later distinct asbestos-related diseases do not restart the two-year limitations period. The Workers' Compensation Act's exclusivity provision bars an employee's claim against his employer unless the employer intended to injure him, and knowingly exposing him to a hazard is not enough.
• Rosenberg v. Celotex Corp. (1985). Under New York law a representative may bring a wrongful death action only if the decedent could still have sued at the time of death, so a time-barred underlying injury claim defeats it. Texas's foreign wrongful death statute requires an existing right of action under the foreign state's law, which was lacking here.
• Adams v. Johns-Manville Sales Corp. (1984). Under Louisiana law, a cause of action for cancer does not arise from asbestos exposure until cancer manifests, so evidence of increased risk of future cancer is properly excluded. A court need not instruct on future damages for which there is no proof, and a jury's findings with a reasonable evidentiary basis need not be consistent across products.
• Jackson v. Johns-Manville Sales Corp. (1984). A plaintiff with asbestosis cannot recover for, or offer proof of, a probable future cancer, because cancer is a separate disease whose cause of action accrues only when it develops. Under Mississippi law, punitive damages were disallowed in this strict liability asbestos litigation because of the extraordinary circumstances of mass asbestos litigation.
• Large v. Bucyrus-Erie Co. (1983). Under Virginia law as stated in Locke v. Johns-Manville, a personal injury claim accrues when the plaintiff is injured, as shown by competent medical evidence, not at last exposure. A brief later exposure that caused no new injury, and no continuing service relationship, does not extend the limitations period.
• Murphree v. Raybestos-Manhattan, Inc. (1982). Under Tennessee law the vested rights doctrine no longer bars application of the 1979 amendment exempting asbestos-related disease actions from the ten-year sale-based limitations ceiling. Proximate cause requires only that the defendant's product be a substantial factor, not the sole cause.
• Neubauer v. Owens-Corning Fiberglas Corp. (1982). Under Wisconsin law, a cause of action for an asbestos-caused disease accrues when the disease becomes medically diagnosable (provable in court). Accrual is not tied to exposure, and it does not depend on the plaintiff's knowledge of the injury or its cause.
• Wilson v. Johns-Manville Sales Corp. (1982). Under the discovery rule, a diagnosis of one asbestos-related disease (asbestosis) does not start the limitations period for a separate and distinct disease (mesothelioma) from the same exposure until that second disease becomes manifest.
• Clutter v. Johns-Manville Sales Corp. (1981). Under Ohio law, a claim for an insidious disease caused by asbestos exposure accrues when the disease manifests, not at the date of last exposure.
• Fusco v. Johns-Manville Products Corp. (1981). Under Texas law, the two-year limitations period for products liability personal injury claims begins when the plaintiff discovers, or with ordinary care should have discovered, the injury; a pending federal compensation claim neither delays accrual nor tolls the period, and there is no fraudulent concealment of facts the plaintiff knew.
• Vaughan v. Johns-Manville Corp. (1981). Under the Executive Jet criteria admiralty jurisdiction is present over asbestos product claims by a Navy boiler tender, and the limitation period is governed by the doctrine of laches rather than a strict application of the state statute of limitations.
• White v. Johns-Manville Corp. (1981). Asbestos products liability claims by shipyard workers satisfy the Executive Jet locality and maritime-nexus tests when the products were designed, advertised and marketed as maritime asbestos products, so admiralty jurisdiction applies. Laches, not the state statute of limitations, then governs timeliness.
• Ins. Co. North America v. Forty-Eight Insulations (1980). Under standard comprehensive general liability policies, 'bodily injury' from asbestosis occurs when tissue damage begins on inhalation of fibers, not at manifestation, so every insurer on the risk during exposure is liable pro rata for indemnity and defense costs. The insured is treated as self-insured for uninsured years.
• Karjala v. Johns-Manville Products Corp. (1975). Under Minnesota law a manufacturer is held to the knowledge of an expert and must warn of dangers it knew or could have discovered through reasonable care. The six-year limitations period for a product injury begins when some harm or impairment manifests itself that can be shown to have been caused by the defendant's product.
• Borel v. Fibreboard Paper Products Corporation (1973). Under Texas law and section 402A of the Restatement (Second) of Torts, a manufacturer of asbestos insulation can be strictly liable for failing to warn insulation workers of foreseeable dangers, and a warning given only to intermediary contractors does not by itself end that duty. Defendants whose products each caused some indivisible injury are jointly and severally liable, and assumption of risk is a defense only if the plaintiff's conduct was both voluntary and unreasonable.

Pennsylvania

• Anderson v. Consolidated Rail Corporation (2023). In a FELA case, which applies a relaxed causation standard, an expert report should not be rejected on summary judgment over methodology concerns. If the trial court questions the expert's methodology, the proper step is a Frye hearing. A statute of limitations defense turns on fact questions that are ordinarily for the jury.
• Vitcavich v. Owens Corning/fibreboard Asbestos Personal Injury Trust (2023). Claimants against a Section 524(g) asbestos trust may litigate only the tort claims the trust distribution procedures authorize. Those claims accrue when the trust issues its authorization letter and are subject to the two-year Pennsylvania limitations period.
• Smith v. Wenerowicz (2017). A prisoner states an Eighth Amendment claim by alleging that officials who knew of a known carcinogen like asbestos in the prison were deliberately indifferent to his exposure to unreasonably high levels of it. Allegations of delayed care or a missed diagnosis against medical providers sound in negligence or malpractice, not a constitutional violation.
• Herbert v. American Biltrite (2016). Under Virginia law, an asbestos cause of action accrues once, when a physician first communicates a diagnosis of asbestosis or another listed disease, and a later mesothelioma diagnosis does not start a new limitations period. The accuracy of the first diagnosis does not matter, and the diagnosis need not be of a 'disabling' disease.
• Wygant v. General Electric Company (2015). After Neiman struck down Act 152, 42 Pa.C.S. § 5524(8) remained operative, and its two-year limitations period for asbestos injury or death claims runs from the physician's diagnosis of the afflicted person, including for wrongful death actions.
• Graver v. Foster Wheeler Corp. (2014). The 12-year statute of repose for improvements to real property (42 Pa.C.S. § 5536) applies to asbestos personal injury claims against those who design or construct such improvements; the Abrams dictum that no repose exists in asbestos cases does not displace it.
• In re Pittsburgh Corning Corporation (2013). A plan that creates an asbestos personal injury trust and channeling injunction can be confirmed under §524(g) and §1129 when the trust is adequately funded, treats present and future claims equitably, and covers non-debtor parties only for claims derivative of the debtor. A plan that is "insurance neutral" and leaves coverage rights to non-bankruptcy proceedings does not harm non-settling insurers.
• Daley v. AW Chesterton, Inc. (2012). Under Pennsylvania's separate disease rule, a plaintiff who previously sued for one malignant asbestos-related disease may bring a later action for a separate and distinct malignant asbestos-related disease from the same exposure that was unknown at the time of the first suit, if filed within the limitations period.
• Corley v. Bill Vann Co. (In re Liability Litigation) (2011). Under Alabama law, asbestos exposures before May 19, 1979 are governed by the one-year limitations period running from last exposure, and Griffin v. Unocal did not displace the line of cases applying the asbestos discovery rule only prospectively. Because Alabama law is unsettled on whether asbestosis and mesothelioma are one disease or two, the MDL court deferred that question to the transferor court.
• Kiser v. AW Chesterton Co. (2011). Virginia follows the indivisible cause of action theory, so the limitations period for all asbestos-related claims begins at the first physician diagnosis of any asbestos-related disease. The 1985 amendment, Va. Code § 8.01-249(4), did not abolish that theory.
• Kiser v. AW Chesterton Co. (2011). Virginia follows the indivisible cause of action rule, and the 1985 amendment (Va. Code § 8.01-249(4)) did not replace it with the separate disease rule. The limitations period for all asbestos-related claims therefore begins at the first physician diagnosis of any asbestos-related disease.
• Abrams v. Pneumo Abex Corporation (Eastern District, 2009). A plaintiff's earlier recovery from other defendants for increased risk and fear of cancer under the one-disease rule does not bar a later suit against a new defendant for lung cancer. Each cause of action against each defendant is separate, and the lung cancer claim accrued at diagnosis.
• Daley v. AW Chesterton, Inc. (2009). Under Pennsylvania's Marinari separate disease rule, a plaintiff who earlier sued over asbestosis and lung cancer may bring a new action for mesothelioma, a distinct disease, within two years of its diagnosis. The rule is not limited to one suit for a malignant disease and one for a non-malignant disease.