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.

Virginia

• Roller v. Basic Const. Co. (1989). In an occupational disease case, the employer's and employee's rights under the Workers' Compensation Act become fixed when the diagnosis is first communicated to the employee, so the statute in effect on that date governs. A repealed five-year limit from last injurious exposure therefore created no vested right of repose and the 1983 amendment applied without unconstitutional retroactivity.
• Saunders v. HK Porter Co., Inc. (1986). The Fourth Circuit's Oman decision, which rejected admiralty jurisdiction in land-based shipyard worker asbestos cases, applies retroactively, so Virginia's two-year personal injury limitations period governs. Virginia Code § 8.01-249(4), under which asbestos claims accrue when diagnosis is communicated, applies only prospectively to cases filed after July 1, 1985.
• Joyce v. AC & s., Inc. (1984). Under Virginia law as stated in Locke, a personal injury is a single indivisible cause of action that accrues when the plaintiff was first hurt, so an earlier asbestos-related injury starts the limitations period for later-developing asbestos diseases.
• Large v. Bucyrus-Erie Co. (1981). Under Virginia law as stated in Locke v. Johns-Manville, a claim accrues when the plaintiff was physically hurt, as shown by medical evidence. If the injury was complete more than two years before suit, later exposure that caused no new injury does not extend the limitations period.
• Locke v. Johns-Manville (1981). A personal injury claim accrues under Virginia's statute when the plaintiff is physically hurt, not at the time of the wrongful exposure. For mesothelioma, accrual is when the disease injury occurred, shown by competent medical evidence, rather than at the last asbestos exposure.

Washington

• Deem v. Air & Liquid Systems Corporation (2023). Under maritime law a plaintiff must show actual exposure to the defendant's asbestos and that it was a substantial contributing factor, which requires substantial exposure for a substantial period when direct evidence is absent. The presence of a defendant's product at a shipyard is not enough.
• Deem v. William Powell Co. (2022). A wrongful death claim under maritime law cannot accrue before the decedent's death, so the three-year limitations period under 46 U.S.C. § 30106 starts on the date of death (or later if the cause of death is not then known), not when the seaman learned of his illness.
• Deem v. Air & Liquid Systems Corporation (2019). Under maritime law, the three-year limitations period for a wrongful death claim runs from when the decedent knew or should have known of his injury and its cause, not from the date of death.
• Deem v. Air & Liquid Systems Corporation (2019). Under the law of the case doctrine, the court would not reconsider its earlier decision granting summary judgment on Washington statute of limitations grounds to similarly situated defendants, and applied it to Cleaver-Brooks.
• Deem v. Air & Liquid Systems Corporation (2019). Under Deggs, a wrongful death claim against a defendant is barred when the decedent's personal injury claim against that defendant was not filed within the three-year limitations period, even if that period ran after his death.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington law (Lockwood), a plaintiff must show a reasonable connection between the injury and the particular defendant's product, and general evidence of asbestos on ships does not suffice. A defendant that files its answer after discovery closes, causing prejudice, waives an affirmative limitations defense.
• Leren v. Kaiser Gypsum Company, Inc. (1st Division, 2019). The product line doctrine of successor liability can apply to a distributor of raw asbestos, not only to manufacturers, where the successor acquired the distributor's assets and goodwill and held itself out as its continuation. The dissolved-corporation limitations statute (RCW 23B.14.340) does not bar such a successor liability claim.
• Brandes v. Brand Insulations, Inc. (1st Division, 2018). A wrongful death claim is barred where the decedent, after injury, pursued prior litigation to judgment against the same defendant, but not against defendants who were not parties to or in privity with parties in that litigation. Res judicata, double recovery and joinder concerns did not bar the claims against the non-party defendants.
• Clayton v. Air & Liquid Systems Corporation (2018). Under Washington law (RCW 23B.14.340), a claim against a dissolved corporation is barred if suit is filed more than three years after dissolution, and equitable remedies, tolling for known claimants, or receivership did not allow a claim against the dissolved corporation itself.
• Barabin v. AstenJOHNSON, Inc. (2014). A non-diverse defendant is fraudulently joined on a limitations ground only if the bar is obvious under settled state law. Under Washington law, it is unsettled whether a wrongful death claim is barred when the decedent's personal injury limitations period ran before death, so that showing was not made.
• Clare v. Saberhagen Holdings, Inc. (1st Division, 2005). Under Washington's discovery rule, a claim accrues when the plaintiff knew or should have known the essential elements of the claim. A plaintiff on notice of harm and its likely cause must make reasonable inquiry and is charged with what that inquiry would have revealed.
• Miller v. Foster Wheeler Co. (1st Division, 1999). Under the Jones Act/FELA, a personal injury survival claim accrues at the time of injury and is barred if not filed within three years of that date, even if the separate wrongful death claim, filed within three years of death, is timely.
• Niven v. EJ Bartells Co. (1st Division, 1999). A release of one successor to a tortfeasor's liabilities that reserves the right to sue unnamed parties does not discharge a separate successor. Under the traditional discovery rule, a defendant claiming a lung cancer claim is time-barred must show with competent medical evidence that the cancer could have been diagnosed more than three years before suit.
• Koker v. Armstrong Cork, Inc. (1st Division, 1991). Claims from continuous asbestos exposure that occurred before July 26, 1981 'arose' before the 1981 tort reform act, so pre-Act law governs; when the claim accrued is a jury question. A plaintiff with no present cancer cannot recover for increased risk or lost chance of survival, only for a reasonable present fear of cancer.
• White v. Johns-Manville Corp. (1985). The discovery rule applies to wrongful death and survival actions, so a claim accrues when the personal representative (or the decedent, for survival claims) knew or should have known the causal link between asbestos exposure and the death or disease; the date of death does not fix accrual as a matter of law.

Wisconsin

• Nooyen v. Wisconsin Elec. Power Co. (2020). Under Mair, the construction statute of repose bars safe place claims resulting from structural defects, including airborne asbestos released during original construction. The statute applied to a mesothelioma claim that arose on diagnosis after 1994 without improper retroactivity, and it did not violate the constitutional right to a remedy.
• Kappel v. Weyerhaeuser Company (2018). Wisconsin's Workers' Compensation Act does not bar claims based on community or environmental asbestos exposure, and a complaint that alleges the specific diagnosis and date of death need not be dismissed for lack of specificity. The nuisance claims were time-barred, as the court had held in the related Kilty and Spatz cases.
• Kilty v. Weyerhaeuser Company (2018). Wisconsin's Workers' Compensation Act exclusivity provision does not bar claims based on community (non-workplace) asbestos exposure distinct from the employment exposure, and at the pleading stage plaintiffs need only allege that this exposure on its own substantially contributed to the injury. Nuisance claims based on emissions that ended in 1979 are barred by the statute of limitations.
• Pecher v. Owens-Illinois, Inc. (2017). Claims by employees whose asbestos injuries arose from their plant work are barred by Wisconsin's workers' compensation exclusive remedy, and plaintiffs cannot avoid it by recasting the injuries as off-the-job nuisance harms. Product liability does not attach to a patent holder that merely licenses a patent to a manufacturer.
• Ahnert v. Brand Insulation Inc. (2015). Under Wisconsin claim preclusion law, a prior dismissal with prejudice of an asbestosis suit bars a later mesothelioma suit against the same defendants where the plaintiff knew of the mesothelioma diagnosis before the earlier dismissal and could have added it; the Sopha exception did not apply.
• Arendt v. Owens-Illinois, Inc. (2015). A dismissal with prejudice of an earlier suit, in which the plaintiff conceded that a non-malignant asbestos claim was time-barred, can be given preclusive effect. Under Wisconsin's two-disease rule, a non-malignant diagnosis starts the three-year limitations period for non-malignant claims, so a later suit for non-malignant disease is barred where no malignancy ever developed.
• Ahnert v. Brand Insulation Inc. (2014). Under Wisconsin law, claim preclusion barred the later suit. The Sopha exception for a later-diagnosed malignancy did not apply, because the plaintiff knew of the mesothelioma diagnosis for about three years before she stipulated to dismissal with prejudice.
• Delsart v. Albany Felt Company, Inc. (3rd District, 2012). When leave to amend is sought after summary judgment, there is no presumption favoring amendment; the movant must give a reason sufficient to overcome the value of finality of judgment, and a court may correct a manifest error of law by reconsidering its earlier use of the 'freely given' standard.
• International Paper Co. v. Labour & Indus. Rev. Com'n (2001). Under the statutes in effect in 1983, the twelve-year limit for a dependent's death benefit claim runs from the worker's death, not the injury. The earlier Kohler and Weissgerber decisions no longer control because the statute they relied on was amended.
• Sopha v. Owens-Corning Fiberglas Corp. (1999). A diagnosis of a non-malignant asbestos-related condition does not start the statute of limitations for a later diagnosed, distinct malignant asbestos-related condition. Claim preclusion also does not bar the second action, because asbestos cases present a special circumstance justifying an exception.
• Neubauer v. Owens-Corning Fiberglas (1981). Wisconsin law does not apply a discovery rule to the three-year personal injury statute of limitations, so for progressive asbestos diseases the cause of action accrues on the date of last exposure to any asbestos-containing product, not the date of discovery. That date applies to claims against all manufacturers of asbestos products to which the plaintiff was exposed.