Louisville Trust Co. v. Johns-Manville Products (1979)

Our plain-English summary of Louisville Trust Co. v. Johns-Manville Products (Kentucky Supreme Court, April 10, 1979).

William Sampson worked for Queen Products Company from 1957 to 1967, and from 1962 on he sawed and planed asbestos boards made by Johns-Manville. He left the job in October 1967. Lung cancer, described as mesothelioma, was diagnosed in August 1971, and he died in February 1972. His estate's administrator sued Johns-Manville for failing to warn adequately of asbestos dangers, and Queen Products joined to recover workers' compensation benefits it had paid. A jury awarded $10,000 for pain and suffering and $80,000 for wrongful death. The Court of Appeals held the claim barred by the one-year limitations period, which it counted from his last exposure, because earlier Kentucky precedent required that result. The Kentucky Supreme Court overruled that precedent. It extended the discovery rule used in malpractice cases to latent diseases caused by exposure to harmful substances, so the period runs from when the person knew or should have known of the injury and its possible cause. The suit was timely. The case went back to the Court of Appeals to consider Johns-Manville's other claimed errors.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Kentucky Supreme Court
• Decided: April 10, 1979
• Citation: 580 S.W.2d 497
• Stage: Appeal from judgment after trial
• State: Kentucky

Outcome. The Kentucky Supreme Court reversed the Court of Appeals' ruling that the limitations period barred the claim, held the Sampson estate's suit against Johns-Manville timely, and remanded for the Court of Appeals to consider Johns-Manville's other assignments of error.

What the court held. 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.

Issues decided: Wrongful Death and Survival, Statute of Limitations.

Why this case is relevant

In this decision the Kentucky Supreme Court overruled its own 1954 precedent, which had started the one-year limitations period on the date of a worker's last exposure. It extended the discovery rule already used in Kentucky medical malpractice cases to tort claims for latent disease caused by exposure to a harmful substance, whether based on negligence or products liability. Under that rule, a claim accrues when the plaintiff knew or should have known both of the injury and that it may have been caused by the defendant's conduct. Applying it, the court held the Sampson estate's suit timely as a matter of law.

Later decisions in our library cite it mainly for that accrual rule. The Kentucky Court of Appeals and a federal district court in Kentucky quoted its formulation of when a claim accrues, and the Kentucky Supreme Court later named it as one of three cases at the center of any discussion of negligence liability for asbestos exposure. Courts elsewhere, including the Ohio Supreme Court and the Sixth Circuit, cited it alongside other decisions applying a discovery rule to latent-disease claims.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• William Virgil Sampson: mesothelioma; died

Who	Work	Where	When	Products
William Virgil Sampson	asbestos worker	Queen Products Company	1957-1967	Marinite board, Johns-Manville asbestos boards

The defendants

• Johns-Manville Products Corporation (manufacturer)
• Queen Products Company, Inc. (employer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Harig v. Johns-Manville Products (Maryland Court of Appeals, 1978). The Maryland Court of Appeals answered certified questions from the federal district court, holding that Mrs. Harig's negligence and strict liability claims accrued on discovery of her latent disease, a ruling that favored her over Johns-Manville.
• Karjala v. Johns-Manville Products Corp. (U.S. Court of Appeals, Eighth Circuit, 1975). The Eighth Circuit affirmed the $200,000 jury judgment for plaintiff Karjala against Johns-Manville, finding the jury instructions on strict liability/duty to warn and on the statute of limitations consistent with Minnesota law.

Later decisions citing this one

14 later decisions in our library cite this one:

• Carroll v. Owens-Corning Fiberglas Corp. (Kentucky Supreme Court, 2000). Answering a question certified by the Sixth Circuit, the Kentucky Supreme Court held that Geraldine Carroll's lung cancer claim was not time-barred, which favors the plaintiff over the asbestos defendants (Owens-Corning and others).
• Capital Holding Corp. v. Bailey (Kentucky Supreme Court, 1994). The Kentucky Supreme Court reversed the Court of Appeals on the negligence claims, upholding summary judgment for Capital Holding because no cause of action had accrued without a present harmful change. It reversed the dismissal of the Baileys' outrageous conduct claim and sent it back for trial.
• Bernier v. Raymark Industries, Inc. (Maine Supreme Judicial Court, 1986). Answering questions certified by the federal district court, the Maine court held that state-of-the-art evidence is admissible in a failure-to-warn claim under section 221, that wrongful death damages are recoverable in a section 221 action, and that section 221 applies to pre-1973 inhalation only if the disease manifested after October 3, 1973; this was a partial win for each side, with two justices dissenting on the third question.
• Larson v. Johns-Manville Sales Corp. (Michigan Supreme Court, 1986). The Michigan Supreme Court affirmed the dismissal of all four wrongful death suits to the extent they rested on asbestosis, because they were filed too late, but held that the Glazier and Revard cancer claims against the asbestos manufacturers could proceed.
• Celotex Corp. v. Copeland (Florida Supreme Court, 1985). The Florida Supreme Court quashed the Third District's approval of market share liability (reinstating dismissal of that theory but allowing Copeland to amend his complaint), and approved the Third District's ruling that the statute of limitations could not be decided by summary judgment, so the Copelands may proceed against the asbestos manufacturers.
• O'stricker v. Jim Walter Corp. (Ohio Supreme Court, 1983). The Ohio Supreme Court ruled for the plaintiff, holding the action timely under a discovery rule, and remanded to the trial court for further proceedings on the merits against the asbestos-product defendants.
• Bunker v. National Gypsum Co. (Indiana Supreme Court, 1982). The Indiana Supreme Court vacated the Court of Appeals' opinion and affirmed the Industrial Board's denial of asbestosis benefits to Richard Bunker, holding the three-year limitation period constitutional and National Gypsum the winner.
• Wilson v. Johns-Manville Sales Corp. (U.S. Court of Appeals, District of Columbia Circuit, 1982). The D.C. Circuit reversed the district court's summary judgment for Johns-Manville and the other asbestos defendants, which had dismissed Blannie Wilson's survival and wrongful death claims as time-barred, and remanded for further proceedings.
• Ins. Co. North America v. Forty-Eight Insulations (U.S. Court of Appeals, Sixth Circuit, 1980). The Sixth Circuit affirmed the district court's judgment adopting the exposure theory, so all of Forty-Eight Insulations' insurers on the risk during the exposure years share defense and indemnity costs pro rata, with Forty-Eight bearing the share for uninsured years; INA, Affiliated FM, Illinois National and Liberty Mutual lost, and Forty-Eight and Travelers largely won.
• RT Vanderbilt Company, Inc. v. Franklin (Kentucky Court of Appeals, 2009). The Kentucky Court of Appeals affirmed the $4,090,000 judgment for Johnny Franklin and Flora Franklin's estate against R.T. Vanderbilt Company, rejecting all of Vanderbilt's claims of error.
• Combs v. Albert Kahn Associates, Inc. (Kentucky Court of Appeals, 2006). The Kentucky Court of Appeals affirmed summary judgment for Albert Kahn & Associates and Turner Construction, holding the Combses' lung cancer claims against them were time-barred.
• Staiano v. Johns-Manville Corp. (Pennsylvania Superior Court, 1982). Affirmed summary judgment for the asbestos product manufacturer defendants, holding the Staianos' claims were barred by the two-year statute of limitations.
• Fleischman v. CSX Transportation, Inc. (U.S. District Court, Western District of Kentucky, 2007). The court granted CSX Transportation summary judgment against Pauline Fleischman, holding that the 1986 release barred the claims and that FELA's three-year limitations period barred the personal injury claim, and dismissed all claims.
• In re Johns-Manville Corp. (U.S. Bankruptcy Court, Southern District of New York, 1984). The bankruptcy court granted Keene Corp.'s motion to appoint a legal representative for future asbestos claimants in the Manville reorganization, holding that those claimants are parties in interest, and set a later hearing on the representative's form and function.

Amounts in the opinion

• $10,000 (compensatory)
• $80,000 (compensatory)

On our site

• Kentucky Mesothelioma Lawyer: Asbestos Claims, Deadlines & Compensation
• Reading Castleman, Chapter 9: Company Knowledge

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

580 S.W.2d 497 (1979)

The LOUISVILLE TRUST COMPANY, Ancillary Administrator of the Estate of William Virgil

Sampson, Deceased, and Queen Products Company, Inc., Movants,

v.

JOHNS-MANVILLE PRODUCTS CORPORATION, Respondent.

April 10, 1979.

Supreme Court of Kentucky.

[*498] Allen Schmitt, James M. Graves, Boehl, Stopher, Graves & Deindoerfer, Louisville, Thomas W. Henderson, Pittsburgh, Pa., for movants.

Lively M. Wilson, Stites, McElwain & Fowler, Louisville, for respondent.

REED, Justice.

The issue presented is whether this court should extend the so-called "discovery" rule applicable to malpractice cases in this jurisdiction to actions for personal injury from a latent disease caused by exposure to a harmful substance so far as computing the proper commencement date of the statute of limitations is concerned.

I

William Sampson died from malignant mesothelomia, a rare type of lung cancer, caused by breathing asbestos dust and fibers. Sampson had been an asbestos worker at Queen Products Company from 1957 to 1967 during which years he was exposed to asbestos fiber dust. In 1962 Queen Products became the exclusive agent of Johns-Manville and fabricated asbestos boards purchased from Johns-Manville, the manufacturer. From 1962 until he voluntarily terminated his employment with Queen in October 1967, he was exposed to asbestos fiber dust which resulted from sawing and planing Johns-Manville asbestos boards.

From October 1967 until his death in February, 1972, Sampson was not exposed to asbestos dust. He did not become ill until 1971 and lung cancer was not diagnosed until August 26, 1971. Sampson was told of the diagnosis in September 1971.

He was again hospitalized on February 5, 1972 and died later that day. Louisville Trust was appointed his administrator on August 24, 1972 and an action for personal injuries and wrongful death was commenced August 25, 1972. The administrator's suit sought recovery from Johns-Manville on a theory of products liability arising from an alleged failure to adequately warn of known dangers associated with the inhalation of asbestos dust. Queen Products intervened as a plaintiff to secure reimbursement for workmen's compensation benefits paid to Sampson. The suit was tried. The jury verdict was in favor of Sampson's estate. The jury awarded $10,000 for pain and suffering and $80,000 as damages for wrongful death. From a judgment in conformity with this [*499] verdict, Johns-Manville appealed to the Court of Appeals. Although several grounds of error were asserted, the Court of Appeals found it necessary to deal with only one. It held that our decision in Columbus Mining Co. v. Walker, Ky., 271 S.W.2d 276 (1954), required the dismissal of the action as barred by the applicable one-year statute of limitations.[1] Sampson's estate moved this court for discretionary review which we granted. Our review is limited, of course, to the limitations issue which is the only assignment of error discussed and decided by the Court of Appeals.[2]

II

The Court of Appeals had no alternative but to decide the case as it did. Columbus Mining Co. v. Walker, supra, is directly controlling unless we decide to overrule it. The Court of Appeals noted:

"The disease which caused Sampson's death is one which develops only after long exposure and he did not and could not have known of his illness until a year from the date of his last exposure had already passed. The logic of the decisions cited by [Sampson's estate] is therefore appealing."

The opinion concluded:

"In our opinion the resolution of the issue presented here is a matter of policy. It is the function of this court to follow the decisions of the highest court of the state and not to attempt to make new policy by overruling those decisions. This is especially true when the policy established by the highest court is of such recent vintage."

We agree that these statements correctly reflect the proper role of the Court of Appeals in our judicial system. We have concluded to extend the discovery rule of our medical malpractice cases to tort actions for injury resulting from a latent disease caused by exposure to a harmful substance.

III

Columbis Mining Co. v. Walker, supra, was decided by this court in 1954. In that case a worker contract silicosis which was not diagnosed until four years after his last exposure to silica dust. The worker could not be compensated under the Workmen's Compensation Act then in effect because neither he nor his employer had accepted coverage of the Act. He sued his employer in a common law action for failure to provide a safe place to work. This court held that ". . . since the basis of the action is the employer's wrongful conduct in not maintaining a safe place of employment, the commencement of the running of the statute should not be delayed beyond the date upon which the employee was last exposed. To hold otherwise would promote the prosecution of stale claims

against the intent and spirit of statutes of limitations." Id. at 278.

This disposition was not in accord with the analysis adopted by the United States Supreme Court in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). Urie involved a locomotive fireman who contracted silicosis from inhalation of silica dust over a thirty-year period. The defendant argued that the action was barred by the three-year statute of limitations prescribed in the Federal Employers' Liability Act. In considering the limitations issue the Supreme Court held that the cause of action did not accrue until the plaintiff either knew or had reason to know of the disease. The adoption of any other rule, the court stated

"would mean that at some past moment in time, unknown and inherently unknowable [*500] even in

retrospect, Urie was charged with knowledge of the slow and tragic disintegration of the lungs; under this view Urie's failure to diagnose within the applicable statute of limitations a disease whose symptoms had not yet obtruded on his consciousness would constitute a waiver of his right to compensation at the ultimate day of discovery and disability." Id. 337 U.S. at 169, 69 S.Ct. at 1024, 93 L.Ed. at 1292.

The thrust of Urie is that when an injury does not manifest itself immediately the cause of action should accrue not when the injury was initially inflicted, but when the plaintiff knew or should have known that he had been injured by the conduct of the tortfeasor. An action accrues only at the time the plaintiff suffers an actionable wrong. In Saylor v. Hall, Ky., 497 S.W.2d 218, 225 (1973) we stated: "A cause of action does not exist until the conduct causes injury that produces loss or damage." We followed the rationale just stated in concluding to reject previous case law and to apply the so-called "discovery" rule to actions for medical malpractice when in 1970 we decided Tomlinson v. Siehl, Ky., 459 S.W.2d 166, and in 1971 when we decided Hackworth v. Hart, Ky., 474 S.W.2d 377. These cases announced a discovery rule in medical malpractice cases in these terms: An action for medical malpractice accrues, and begins the running of the limitations period "on the date of the discovery of the injury, or from the date it should, in light of ordinary care and diligence, have been discovered." Hackworth v. Hart, supra, at 379 (italics omitted).

The requirement of discovery of injury by a plaintiff is no stranger to Kentucky law. "It has long been a part of our workmen's compensation law, and it is applied, subject to a ten-year limitations period, to actions based on fraud or mistake."[3] Caudill v. Arnett, Ky., 481 S.W.2d 668 (1972) contains language which the Court of Appeals noted in its opinion. In Caudill the plaintiff was injured when a school bus in which he was passenger left the highway and overturned. Although his injuries

appeared to be minor, from that time on he complained of continuous chest and back pain. Plaintiff was a minor at the time of the accident and failed to commence his action within the required time after he reached his majority. He contended that the rule of Tomlinson should be applied so that limitations did not start to run until the diagnosis derived from an exploratory operation was communicated to him. We held: "The appellant's cause of action came into existence or accrued on the day he was injured in the school-bus [sic] accident, and limitations began to run from that date even though he was not made fully aware of the extent of his injury until several years later"[4] The opinion went on to add this gratuitous statement: "Appellant insists that the rule of Tomlinson v. Siehl [citation omitted] is controlling and, therefore, the date of the exploratory operation is the date of discovery of the cause of action from which event limitations begin to run. The rule of Tomlinson is an exception to the general rule with its limitation being limited to malpractice cases.[5]

The extent of the application of Tomlinson was irrelevant to the decision. It was undisputed that on the occasion of the accident plaintiff knew that he was injured as a result of the conduct of the defendant's employee, the school bus driver. Plaintiff's lack of knowledge of the extent of his injury does not toll a statute of limitations to which the discovery rule is applied. We, therefore, regard this statement in Caudill concerning the extent of applicability of Tomlinson as obiter dictum. IV

We see no compelling policy-based reason for a distinction between when a plaintiff [*501] injured by medical malpractice and when a plaintiff injured by latent disease caused by exposure to a harmful substance must bring a lawsuit or be barred by limitations.

Our own review of foreign authorities convinces us that this statement in Birnbaum's article in Forum[6] is correct: "The clear trend, in most jurisdictions in cases dealing with drugs, chemicals and asbestos has been to apply some variation of the discovery rule which is based on equitable considerations. Courts have felt that the injured party should be allowed to have his day in court when his injury was of an inherently unknowable nature."[7]

The New Hampshire Supreme Court in an exhaustive opinion rendered in 1977[8] explained its concept of the discovery rule's application to a case where the plaintiff ingested an oral contraceptive which caused hemorrhages in her optic nerves causing her to become legally blind. In this diversity action the federal court asked the Supreme Court of New Hampshire whether its discovery rule applicable to medical malpractice based on leaving a foreign object in a patient's body should apply to a case where injury was caused by a drug and the plaintiff, exercising reasonable diligence, did not learn of the possible causal connection between the drug and her injury until two or three years after her injury occurred. The New Hampshire court replied that the discovery rule did apply to this case based on a products liability theory. The court said:

"In a case, such as the one before us, in which the injury and the discovery of the causal relationship do not occur simultaneously, it is important to articulate exactly what the discovery rule means. We believe that the proper formulation of the rule and the one that will cause the least confusion is the one adopted by the majority of courts: A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant's conduct."[9]

We think that declaration is a workable and just application of our Tomlinson rule.[10] We find support that this is the just result in a products liability case involving exposure to asbestos in Karjala v. Johns-Manville Products Corp., 523 F.2d 155 (8th Cir. 1975) (construing Minnesota law) and in Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978) (certifying the law of Maryland in a diversity action).

We therefore overrule Columbus Mining Co. v. Walker, Ky., 271 S.W.2d 276 (1954) and extend the Tomlinson rule as explicated herein to tort actions for injury from latent disease caused by exposure to a harmful substance whether the action be based on negligence or on a products liability theory. As there is no dispute concerning the operative facts concerning the time elements involved, we conclude as a matter of law that the Sampson estate's action was timely filed and not barred by limitations.

V

Although Johns-Manville concedes that the component claim for recovery for wrongful death was filed within one year from the date of death as required by statute, it asserts that it is a prerequisite to a wrongful death action that the decedent would have been able to sue for his personal injuries had he lived. (brief for respondent p. 16). We need not either consider or decide the contention because it is premised on the proposition that the decedent's claim for personal injuries was barred by limitations [*502] at the time of his death. Our decision that it was not so barred renders Johns-Manville's contention in this respect purely academic.

VI

We intimate no opinion on other claims of error by Johns-Manville. Those assignments of error properly presented will be considered by the Court of Appeals on remand.

The decision of the Court of Appeals on the issue of limitations is reversed, and the cause is remanded to the Court of Appeals for its consideration of such other assignments of error as are properly presented.

All concur.

[1] KRS 413.140(1).

[2] The three-judge panel was unanimous in holding that the recovery for personal injuries was barred by limitations. One judge, however, dissented from that part of the decision which operated to deny recovery for wrongful death as also barred by limitations. The dissenting judge concluded that the claim for wrongful death was timely in his view because it was filed within one year from the date of death which was when the cause of action accrued.

[3] Cooper, Kentucky Law Survey — Civil Procedure, 66 Ky.L.J. 531, 534-35 (1978) (footnotes omitted). [4] Caudill v. Arnett, Ky., 481 S.W.2d 668, 669 (1972).

[5] Id. at 670.

[6] Birnbaum, "First Breath's" Last Gasp: The Discovery Rule in Products Liability Cases, 13 FORUM 279 (1977). [7] Id. at 285 (footnote omitted).

[8] Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170.

[9] Id. 371 A.2d at 174 (italics supplied).

[10] Cf. Hall v. Musgrave, 517 F.2d 1163 (6th Cir. 1975) (construing the Ky. Tomlinson rule in a diversity action).

Sources

• The opinion on Google Scholar
• Kentucky asbestos laws
• Kentucky asbestos exposure sites