Statute of Repose in Asbestos Cases

Decisions in our library in which the court ruled on statute of repose (including improvements to real property): 141 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

• Spoonamore v. Armstrong World Industries, Inc. (1998). Indiana's asbestos exception to the ten-year product liability statute of repose applies only to defendants that both mined and sold commercial asbestos. Where the exception does not apply and the repose period has run, the underlying product claims and the wrongful death claim based on them are barred.
• 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.

Iowa

• Kinseth v. Weil-McLain (2018). A new trial is warranted when counsel's closing argument, viewed as a whole, repeatedly and deliberately violates an in-limine order and likely changed the result. Punitive damages under Beeman do not require proof that the defendant's conduct differed from its peers if the defendant had specific knowledge of the hazard.
• Kinseth v. WEIL-McLAIN Company (2017). A trial court abuses its discretion by denying a mistrial when counsel persistently violates in limine rulings in closing argument, such as references to defense spending, corporate wealth, sending a message and other lawsuits, so that a different result was probable. Fault may be allocated only to released parties against whom the plaintiff has a viable claim, which excludes exposures barred by the statute of repose.
• Harder v. ACandS, Inc. (1998). Under Iowa Code § 614.1(11), physical attachment to real property at the time of exposure is the key requirement for a product to be an improvement to real property; blankets detached from a turbine at the time of exposure are not improvements, whatever the intent to reattach them.
• Tallman v. WR Grace & Co.-Conn. (1997). Under Iowa Code 614.1(11), a product becomes an improvement to real property once it is physically attached to the real estate, regardless of intent or enhancement of value, and the statute applies to manufacturers. A product merely delivered to the job site with intent to attach it is not yet an improvement.

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.
• Harding v. Proko Industries, Inc. (1991). Applying the Texas choice-of-law rules (Restatement (Second) most significant relationship test), the law of the state where the exposure and the defendants' conduct occurred governs, not the state where the disease was later discovered or where the plaintiff later lived.
• 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.

Louisiana

• Ragusa v. Louisiana Guaranty Insurance Association (2023). Under Louisiana law, a plaintiff opposing summary judgment need only show a reasonable jury could find it more likely than not that he inhaled the defendant's asbestos fibers. A medical expert who weighs qualitative exposure factors, rather than just reciting an 'every exposure' theory, can raise a fact issue on causation. Contracts to sell custom-built turbines and boilers are sales contracts, not construction contracts, so the peremptive period for construction work does not apply.
• Cortez v. Lamorak Insurance Company (2022). A defendant asserting the Louisiana statute of repose, La. Rev. Stat. § 9:2772, bears the burden of showing it was a contractor rather than a seller, with specific record citations. Under Louisiana law, even a short exposure can be a substantial factor in causing mesothelioma if a jury could find the plaintiff inhaled the defendant's asbestos fibers.
• Berry v. Anco Insulations (2nd Circuit, 2019). Under pre-comparative fault Louisiana law, a defendant who blames settled nonparties must prove their fault by a preponderance of the evidence, and a midtrial settlement does not automatically give the remaining defendant a virile share credit; the test is fairness to that defendant. Future medical expenses can be awarded where the record shows they will probably be incurred, even when the cost estimates are rough.
• 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.
• Rando v. Anco Insulations Inc. (2009). Mesothelioma from asbestos contact was not a covered occupational disease under the 1952 version of La.Rev.Stat. 23:1031.1, so the Workers' Compensation Act's exclusive remedy provision did not bar a tort suit against the employer for it.
• Rando v. Anco Insulations, Inc. (1st Circuit, 2008). The 1952 version of the Louisiana workers' compensation statute did not cover mesothelioma, so exclusivity did not bar a tort suit against the employer. The peremption exception for those in possession or control of an improvement applies to a contractor that controlled the construction, not just to owners, lessors and tenants.
• Chaisson v. Avondale Industries, Inc. (4th Circuit, 2006). A contractor that knew its job site contained asbestos and knew of the 1972 OSHA standards owed a fact-specific duty to protect an employee's household member from exposure to asbestos carried home on work clothes. The court stated this was not a categorical duty rule.

Maine

• Godbout v. WLB Holding, Inc. (2010). The three-year repose period for claims against a voluntarily dissolved corporation (13-C M.R.S. § 1408(3)) is a reasonable procedural limit that does not violate the Maine Constitution's open courts provision, and it bars claims regardless of any remaining insurance proceeds.

Maryland

• 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.
• Vitale v. Burnham, LLC (2018). Summary judgment is improper where the record shows a genuine dispute of material fact about whether boilers were products that contain asbestos, which would bring the case within an exception to Maryland's statute of repose for manufacturers of asbestos-containing products. A denial of reconsideration that rests on legal principles is reviewed without special deference.
• Duffy v. CBS Corporation (2017). Under CJP § 5-108, a cause of action accrues when the injury is discovered, so a mesothelioma claim discovered more than 20 years after the improvement became usable is barred. Applying the 1991 asbestos-manufacturer exemption to revive a claim already barred would unconstitutionally take the defendant's vested right.
• 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.

Massachusetts

• Stearns v. Metropolitan Life Insurance Co. (2018). The Massachusetts six-year statute of repose for improvements to real property does not bar asbestos claims against a contractor like GE, given the long latency of asbestos disease, known risks and GE's continuing control of the site. A premises owner is not liable to an independent contractor's employee for asbestos hazards the contractor's own work created, or for a contractor's negligence where the owner kept no real control over the work.
• Stearns v. Metropolitan Life Insurance Company (2018). The six-year statute of repose in G. L. c. 260, § 2B completely eliminates tort claims arising from deficiency or neglect in the design, planning, construction or administration of an improvement to real property once the period has run, with no exception for long-latency diseases or for a defendant with knowing control of the injurious instrumentality.

Minnesota

• 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.

New Jersey

• McDERMID v. 3M Company (2023). A turbine maker whose engineers only gave technical advice, with no contractual duty over worker safety, owed no duty of care to supervise or warn the owner's employees; the employer had the non-delegable duty. Asbestos blankets and components that were part of the original design of the turbines remained improvements to real property during later overhauls, so the ten-year statute of repose barred the claims.
• Barile v. 3M Company, Inc. (2013). A builder of a custom boiler that is an improvement to real property is protected by the ten-year statute of repose, including for follow-up repairs and for strict liability claims based on standard asbestos insulation made by others. A landowner owes no duty to protect an independent contractor's workers from hazards inherent in the contracted work unless it controls the means and methods of that work.

New York

• Erickson v. Air & Liquid Sys. Corp. (2015). Montana's ten-year statute of repose for improvements to real property protects architects, engineers, surveyors and contractors, not manufacturers and suppliers of products such as asbestos-containing turbines.
• Voelker v. John Crane (Matter of Eighth Jud. Dist. Asbestos Litig.) (Erie, 2015). A trial court may set aside a damages award that deviates materially from reasonable compensation and order a new trial unless the defendant stipulates to a higher award. The jury's allocation of 100% fault to the defendant was a fair reading of the evidence, and New York law applied because the plaintiff lived in New York when first exposed.
• Crowder V AW Chesterton Co. (2009). A foreign statute of repose is substantive, so New York courts apply a choice-of-law analysis rather than automatically applying CPLR 202. Under the Neumeier rules, the law of the locus state (Indiana) governed, and applying its repose statute did not violate New York public policy.

North Carolina

• Finch v. Covil Corporation (2020). A non-party insurer that knew of its insured's receivership for decades but did not examine public court records cannot timely intervene or obtain Rule 60(b)(2) relief after judgment. A Rule 60(b)(4) motion based on a claimed statute-of-repose jurisdictional bar fails where there was at least an arguable basis for diversity jurisdiction.
• Logan v. Air Products and Chemicals, Inc. (2014). A plaintiff meets the Lohrmann frequency, regularity and proximity test with evidence of repeated work on or near the defendant's asbestos-containing products over an extended period. North Carolina's products liability statute of repose does not apply to disease claims, under Hyer.
• Payne v. Charlotte Heating & Air Cond. (2005). The time limit in the fourth paragraph of N.C. Gen. Stat. § 97-61.6, which gave asbestosis and silicosis death claims a shorter period than other latent occupational diseases, violates the Equal Protection Clause under rational basis review. The Commission's findings on asbestosis, causation and last injurious exposure were supported by competent evidence and so were binding.
• Gardner v. Asbestos Corp., Ltd. (1986). Forecasting North Carolina law from Wilder v. Amatex, the court held that the six-year products liability statute of repose, N.C.G.S. § 1-50(6), does not apply to asbestos disease cases, and that the three-year limitations period runs from diagnosis of the disease.
• Wilder v. Amatex Corp. (1985). The former ten-year statute of repose in N.C.G.S. § 1-15(b) does not apply to claims arising from disease. A disease claim accrues when the disease is diagnosed, and the three-year limitations period runs from that date. On product exposure, plaintiff must show actual exposure to the defendant's product, not just shipment of products to job sites where he worked.

Oklahoma

• Olsen v. Oklahoma Gas and Elec. Co. (4th Division, 2012). Oklahoma's 10-year statute of repose for improvements to real property (12 O.S. § 109) does not apply where the worker was exposed to asbestos insulation on pipes before they were installed, because the item was still personal property. Section 109 also does not bar premises liability or negligent-supply-without-warning claims.

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.
• Purcell v. Asbestos Corp., Ltd. (1998). In a mesothelioma case with exposure to several makers' products, Oregon's substantial factor test applies rather than a stricter 'frequency, regularity, and proximity' test. The asbestos-disease limitation statute, ORS 30.907, not the construction-improvement repose statute, ORS 12.135, governs claims based on manufacture, distribution and sale, even if the defendant also installed the products.
• 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.

Other federal courts

• Harder v. ACandS (1999). Under Iowa law, asbestos insulation blankets attached to power plant turbines became improvements to real property and kept that status when temporarily detached for maintenance, so Iowa's fifteen-year repose statute for improvements barred claims against their supplier.
• Silver v. Johns-Manville Corp. (1986). N.C.G.S. § 1-50(6), insofar as it is a statute of repose, has no application to claims arising out of a disease, so it does not bar a wrongful death action alleged to result from asbestos-related disease.
• 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.

Pennsylvania

• 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.
• Groover v. CBS Corporation (2014). Under the frequency, regularity and proximity standard, a plaintiff must make some affirmative showing that the plaintiff or decedent breathed dust from the particular defendant's product; working with or around the product is not enough.
• Cardaro v. General Electric Co. (In re Asbestos Products Liability Litigation (VI)) (2013). The 1990 amendment to Louisiana's statute of repose (La. R.S. 9:2772), which removed the failure-to-warn exception, is substantive and applies only prospectively, so it does not retroactively bar earlier failure-to-warn claims. Whether the premises owner knew or should have known of the asbestos hazard is a question of fact.
• Tooey v. AK Steel Corporation (Western District, 2012). Claims for an occupational disease that manifests more than 300 weeks after the last exposure fall outside the Workers' Compensation Act, so the Act's exclusivity provision does not bar a common law action against the employer.
• Rabatin v. Allied Glove Corp. (2011). A manufacturer that designs and builds a large permanent turbine installed as an improvement to real property can invoke the § 5536 statute of repose. The 'control' exception in § 5536(b)(2) applies only to an owner, tenant or other holder of a possessory interest in the real property, not to a manufacturer that merely supervises or repairs.
• 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.
• Anderson v. Bondex Int'l (In re Asbestos Products Liability Litigation) (2009). Under Virginia's statute of repose, an ordinary building material such as joint compound is "incorporated" into an improvement to real property only when its installation is complete. Exposures during the sanding and cleanup phases of installation therefore fall outside the statute.
• Sedlacek v. AO Smith Corp. (2008). Mesothelioma is an occupational disease covered by the Workers' Compensation Act and Occupational Disease Act, so the exclusivity provisions bar a common-law suit against the employer even though the time limits in the Acts leave the claimant with no compensation. Applying the exclusivity provisions this way does not violate the Pennsylvania Remedies Clause or due process.
• Chenot v. AP Green Services, Inc. (2006). A landowner that possesses superior knowledge of asbestos hazards owes a duty to warn an independent contractor's employees, and the landowner bears the burden of showing the contractor or employee knew as much or more. A peculiar-risk theory may also present a triable issue.