VaSalle v. Celotex Corp. (1987)

Our plain-English summary of VaSalle v. Celotex Corp. (Illinois Appellate Court, September 24, 1987).

Ruby VaSalle, administrator of her husband Charles VaSalle's estate, sued Celotex and other makers and sellers of asbestos insulation. Charles VaSalle worked as an insulator from 1941 to 1973 and was told in 1972 that he had asbestosis. In September 1979 he was diagnosed with lung cancer caused by asbestos, and he died a month later. The suit was filed in May 1980. The trial court granted summary judgment to certain defendants, ruling the claims accrued in 1972 with the asbestosis diagnosis and were barred by the two-year limitations period. The Illinois appellate court reversed. Applying the discovery rule from Nolan v. Johns-Manville Asbestos, it found no evidence VaSalle knew before 1979 that he had asbestos-caused lung cancer. Defendants did not dispute that asbestosis and lung cancer are separate diseases, so the court treated them as separate injuries. It rejected the argument that this improperly split one cause of action. One justice dissented, reasoning the claim accrued in 1972 when he learned of asbestosis.

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: Illinois Appellate Court, 1st District
• Decided: September 24, 1987
• Citation: 161 Ill. App.3d 808
• Docket: No. 86-1683
• Stage: Appeal from summary judgment
• State: Illinois

Outcome. The appellate court reversed the trial court's summary judgment for the defendant asbestos-insulation companies and remanded, holding the estate's lung cancer claim was not shown to be time-barred.

What the court held. Under the discovery rule, asbestos-related lung cancer is a legal injury separate and distinct from earlier-diagnosed asbestosis, so its limitations period begins when the plaintiff knows or should know of the cancer and its wrongful cause, not at the asbestosis diagnosis.

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

The people and their exposure

• Charles VaSalle: lung cancer, asbestosis; died

Who	Work	Where	When	Products
Charles VaSalle	insulator		1941-1973	pipe and block insulation

The defendants

• The Celotex Corporation (manufacturer) · its asbestos trust
• Numerous other manufacturers, distributors or sellers of asbestos-containing insulation (certain defendants who moved for summary judgment) (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Zurich Insurance Co. v. Raymark Industries, Inc. (Illinois Supreme Court, 1987). The Illinois Supreme Court affirmed the appellate court: coverage is triggered by bodily injury, sickness or disease during a policy period; insurers need not defend after exhausting limits; no pro rata allocation; no jury right. Zurich, Federal and Commercial Union won on the defense-duty issues, and Raymark won on the trigger and allocation issues.
• Costello v. Unarco Industries, Inc. (Illinois Supreme Court, 1986). The Illinois Supreme Court reversed the lower courts' dismissal of the strict liability counts against H.K. Porter and remanded, holding Marion Costello's suit was timely under section 13-213.
• 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.
• Smith v. Bethlehem Steel Corp. (Maryland Court of Appeals, 1985). The Court of Appeals of Maryland answered two certified questions: workers' compensation § 58 does not toll limitations until an award is made, and a later colon cancer claim can be a separate cause of action accruing on discovery if the cancer is a latent disease distinct from asbestosis. Appellee asbestos suppliers prevailed on the first question and the Smiths on the second.
• Trimper v. Porter-Hayden (Maryland Court of Appeals, 1985). The Court of Appeals of Maryland affirmed the Baltimore City circuit court's judgments for all defendants, holding that the widows' wrongful death and survival claims were time barred because suit was filed more than three years after each husband's death.
• White v. Johns-Manville Corp. (Washington Supreme Court, 1985). The Washington Supreme Court answered the federal court's certified question yes, holding the discovery rule applies to wrongful death and survival actions, so the widow's claims against the asbestos defendants were not barred as a matter of law.
• Pierce v. Johns-Manville Sales Corp. (Maryland Court of Appeals, 1983). The Court of Appeals of Maryland reversed the summary judgment for Johns-Manville and the other defendants and remanded, holding the estate's survival and wrongful death actions for lung cancer were not time-barred.
• Nolan v. Johns-Manville Asbestos (Illinois Supreme Court, 1981). The Illinois Supreme Court affirmed the appellate court's reversal of summary judgment for the defendants (Johns-Manville and others) and remanded to the circuit court, so the plaintiff's estate may proceed on the asbestosis claim.
• Joyce v. AC and S., Inc. (U.S. Court of Appeals, Fourth Circuit, 1986). The Fourth Circuit affirmed the dismissal of Joyce's claims against the asbestos manufacturers as time-barred, the dismissal of his intentional failure-to-warn claim against DuPont under workers' compensation exclusivity, and summary judgment for DuPont on his fraudulent concealment claim.
• 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.
• Eagle-Picher Industries, Inc. v. Cox (Florida District Court of Appeal, 3rd District, 1985). The appeals court affirmed the money judgment for plaintiff Milton Cox against Eagle-Picher Industries, rejecting Eagle-Picher's challenge to the admission of cancer-risk evidence and its other claimed errors.
• Fearson v. Johns-Manville Sales Corp. (U.S. District Court, District of Columbia, 1981). The court denied the joint motion for summary judgment by Johns-Manville and the other asbestos defendants, holding the widow's claims were neither time-barred nor barred by the workers' compensation settlement.
• Lavelle v. Owens-Corning Fiberglas Corp. (Ohio Court of Common Pleas, 1987). The trial court granted the defendants' motion in limine to exclude evidence of increased risk of cancer and denied it as to evidence of the asbestosis-afflicted plaintiff's increased fear of cancer, so each side won in part.
• Devlin v. Johns-Manville Corp. (New Jersey Superior Court, Law Division, 1985). On a defense motion in seven asbestosis cases, the trial court held that plaintiffs could not recover for the enhanced risk of cancer standing alone, but could seek damages for fear of cancer and for future medical surveillance, with evidence of the increased risk going to the jury on those items.
• Sheppard v. AC & S. Co. (Delaware Superior Court, 1985). The court granted the defendants' summary judgment motion on the statute of limitations as to Sheppard's pleural thickening claim, and denied it as to his pulmonary asbestosis claim, so he lost on one claim and won on the other.

Later decisions citing this one

10 later decisions in our library cite this one:

• Kiser v. AW Chesterton Co. (Virginia Supreme Court, 2013). Answering a question certified by the Third Circuit, the Supreme Court of Virginia held that the executrix's mesothelioma wrongful death claim accrued at the earlier asbestosis diagnosis, not the mesothelioma diagnosis, which favored the defendants (two justices dissented).
• Hamilton v. Asbestos Corp., Ltd. (California Supreme Court, 2000). The California Supreme Court reversed the Court of Appeal, holding that Mitchell's second action (for mesothelioma) was not time-barred and that Asbestos Corporation made a general appearance in the first action, so the plaintiffs prevailed on both issues; remanded to resolve remaining issues.
• Pustejovsky v. Rapid-American Corp. (Texas Supreme Court, 2000). The Texas Supreme Court reversed the court of appeals' affirmance of summary judgment for Rapid-American on limitations grounds and remanded to the trial court, so Pustejovsky's mesothelioma suit may proceed.
• Sopha v. Owens-Corning Fiberglas Corp. (Wisconsin Supreme Court, 1999). The Wisconsin Supreme Court reversed the circuit court's order dismissing the Sophas' mesothelioma action against Owens-Corning and the other defendants as time-barred, and remanded for further proceedings.
• Miller v. Armstrong World Industries (Colorado Supreme Court, 1991). The Colorado Supreme Court answered the Tenth Circuit's certified question no: discovering pleural thickening and calcification did not start the limitations period on a later asbestosis claim, which favored plaintiff Miller over the defendant manufacturers.
• Wilber v. Owens-Corning Fiberglass Corp. (Iowa Supreme Court, 1991). The Iowa Supreme Court reversed the summary judgment for the defendants (Owens-Corning and others) and remanded, holding the widow's mesothelioma suit was not time barred by the earlier asbestosis diagnosis.
• Potts v. Celotex Corp. (Tennessee Supreme Court, 1990). Answering questions certified by the Sixth Circuit, the Tennessee Supreme Court held that the one-year limitations period did not bar Elizabeth Potts's mesothelioma claim against Celotex and the other asbestos product defendants, so the plaintiff prevailed on the limitations question.
• Marinari v. Asbestos Corp., Ltd. (Pennsylvania Superior Court, 1992). The en banc Superior Court reversed summary judgment for the defendants, holding that Marinari's lung cancer action was not time-barred by the earlier discovery of pleural thickening.
• 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.
• Fusaro v. Porter-Hayden Co. (New York Supreme Court, 1989). The trial court denied the motions by newly added defendants Asbestospray, APM, ACOA and Dana to dismiss the amended complaint as untimely, and denied the motions by H & A, Spraycraft, National Gypsum and Armstrong to strike the successor-liability allegations, so the plaintiff estate won and the amended complaint was deemed served.

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.

161 Ill. App.3d 808 (1987)

515 N.E.2d 684

RUBY VaSALLE, Adm'r of the Estate of Charles VaSalle, Deceased, Plaintiff-Appellant,

v.

THE CELOTEX CORPORATION et al., Defendants-Appellees.

No. 86-1683.

Opinion filed September 24, 1987.

Illinois Appellate Court — First District (4th Division).

[*809] William R. Fahey and Robert N. Wadington, both of Robert J. Cooney & Associates, of Chicago, for appellant. Francis D. Morrissey, Daniel J. Cheely, Paul B. O'Flaherty, Jr., and Luke L. Dauchot, all of Baker & McKenzie, and Michael W. Rathsack, both of Chicago, for appellees.

Reversed and remanded.

PRESIDING JUSTICE McMORROW delivered the opinion of the court:

Plaintiff Ruby VaSalle (plaintiff), administrator of the estate of her husband Charles VaSalle (VaSalle), filed a complaint against numerous manufacturers, distributors, or sellers of asbestos-containing insulation. The complaint sought damages resulting from VaSalle's adenocarcinoma of the lungs (lung cancer), caused by his exposure to defendants' asbestos products when he was employed as an insulator. Certain defendants filed a motion for summary judgment, claiming that plaintiff's causes of action were barred by the statute of limitations because they accrued when VaSalle discovered that he was suffering from asbestosis, seven years before the instant suit was filed. The trial court allowed defendants' summary judgment motion, and plaintiff appeals.

We reverse and remand.

BACKGROUND

From 1941 to 1973, VaSalle worked as an insulator and was exposed to defendants' asbestos insulation products. He was notified that he had contracted asbestosis in 1972. In 1976, he filled out and signed a disability insurance claim in which he named "asbestosis" as the cause of his disability, and stated that his asbestosis condition was "due to employment." He apparently did not file any tort action for damages arising from the asbestosis. In September 1979, VaSalle was diagnosed as suffering from lung cancer caused by his exposure to asbestos. He died from the lung cancer a month later. In May 1980, [*810] plaintiff filed a tort action seeking damages relating to VaSalle's asbestos-originating lung cancer. Certain defendants (who are appellees herein) filed a motion for summary judgment, claiming that the plaintiff's causes of action were barred by the statute of limitations. Following briefing and argument, the trial court found that plaintiff's claims accrued in 1972 when VaSalle was diagnosed as suffering from asbestosis, were therefore barred by the statute of limitations, and entered an order allowing defendants' summary judgment motion. Plaintiff appeals.

OPINION

The question presented for review is whether defendants established as a matter of law that plaintiff's lawsuit was not timely filed within the two-year statute of limitations. (See Ill. Rev. Stat. 1985, ch. 110, pars. 13-202, 13-213; Costello v. Unarco Industries, Inc. (1986), 111 Ill.2d 476, 490 N.E.2d 675; Mega v. Holy Cross Hospital (1986), 111 Ill.2d 416, 424-25, 490 N.E.2d 665.) Plaintiff maintains that the statute of limitations commenced in 1979 when VaSalle learned that he had contracted lung cancer caused by his exposure to asbestos contained in defendants' insulation products. Defendants assert that plaintiff's causes of action accrued in 1972 when VaSalle discovered that he was suffering from asbestosis.

• 1, 2 As a general rule, when a plaintiff suffers an obvious injury from a single, traumatic event, the statute begins to run when that event occurs. (See, e.g., Saunders v. Klungboonkrong (1986), 150 Ill. App.3d 56, 60, 501 N.E.2d 882.) However, where a plaintiff's injury is latent, that is, does not manifest itself until some time after defendant's wrongful act occurred, the plaintiff's cause of action is said to accrue when plaintiff knows or reasonably should know he has been injured by the wrongful conduct of another. This "discovery rule" obtains with respect to latent physical injuries regardless of whether the plaintiff's injury is sustained as the result of a single traumatic event or several ostensibly innocuous circumstances. See, e.g., Costello v. Unarco Industries, Inc. (1985), 111 Ill.2d 476, 490 N.E.2d 675; Nolan v. Johns-Manville Asbestos (1981), 85 Ill.2d 161, 421 N.E.2d 864; Witherell v. Weimer (1981), 85 Ill.2d 146, 421 N.E.2d 869; Berry v. G.D. Searle & Co. (1974), 56 Ill.2d 548, 309 N.E.2d 550; Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305. In Nolan v. Johns-Manville Asbestos (1981), 85 Ill.2d 161, 421 N.E.2d 864, the Illinois Supreme Court held the "discovery rule" applicable to a tort claim brought by an individual suffering from asbestosis. [*811] The supreme court found that the factual setting of a person who worked for several years while exposed to asbestos, and only later learned that this exposure caused him to contract asbestosis, presented "a prime example of where, though the passage of time does create problems of proof, those problems are outweighed by the hardship to the plaintiff who neither knows or reasonably should know that he is being injured." (85 Ill.2d 161, 168, 421 N.E.2d 864, 867.) The court found particularly persuasive that "in a case such as this, it is difficult to pinpoint a precise time when an injury occurred." (85 Ill.2d 161, 168, 421 N.E.2d 864, 867.) It further determined that to refuse application of the discovery rule to tort claims arising from asbestos injuries would work an unconscionable hardship upon a plaintiff suffering from such an illness. 85 Ill.2d 161, 168, 421 N.E.2d 864. • 3 We find that a straightforward application of Nolan disposes of the question raised in this appeal. Defendants have presented no evidence that VaSalle knew any earlier than 1979 that he had asbestos-originating lung cancer and that this condition had been caused by exposure to asbestos products manufactured by defendants. Nor is there any evidence to suggest that VaSalle "would have had sufficient information to reach such a conclusion earlier [than 1979]." (85 Ill.2d 161, 171-72, 421 N.E.2d 864, 869.) Defendants have offered no evidence to show that plaintiff's causes of action for damages relating to VaSalle's lung cancer accrued in 1972, when VaSalle was diagnosed as suffering from asbestosis. Defendants also offered no proof that VaSalle learned in 1972 that the asbestosis was caused by defendants' wrongful acts. Accordingly, based on the discovery rule as enunciated in Nolan, it was error to enter summary judgment in defendants' favor on the premise that plaintiff's complaint was time barred.

Defendants assert that the discovery rule applies to VaSalle's earlier discovery of asbestosis in 1972 rather than his subsequent discovery of lung cancer in 1979. Consequently, defendants contend, plaintiff's causes of action ripened in 1972 for all then current and prospective damages resulting from VaSalle's exposure to defendants' asbestos products, including damages relating to his later contraction of lung cancer in 1979. Defendants claim that this reasoning is founded upon the supreme court's decision in Nolan.

We do not read Nolan as narrowly as defendants' argument suggests. In Nolan, the plaintiff suffered a progressive deterioration of pulmonary capacities. As the facts there demonstrated, Nolan first "knew he had lung problems in 1957, and he knew he had pulmonary fibrosis in 1965. It was not until May 15, 1973, that he was told by a [*812] doctor that he had asbestosis and that his condition was caused by exposure to asbestos materials at work." (85 Ill.2d 161, 171, 421 N.E.2d 864, 869.) The supreme court determined that the question of whether a person in Nolan's position would reasonably have known, either in 1957, in 1965, or in 1973, that he had asbestosis caused by his exposure to asbestos products was a disputed factual issue not properly resolved upon summary judgment motion. 85 Ill.2d 161, 169, 421 N.E.2d 864. Here, plaintiff claims that asbestos-originating lung cancer and asbestosis are two separate, independent, asbestos-originating diseases. Plaintiff asserts that lung cancer caused by asbestos exposure is not a complication or progressive worsening of asbestosis. Defendants do not dispute plaintiff's position that the two diseases are separate and distinct, and presented no evidentiary basis in their summary judgment motion to contradict that position. Under these circumstances, we find that the legal injury VaSalle discovered upon diagnosis of asbestosis is separate and distinct from the legal injury he discovered upon diagnosis of lung cancer caused by asbestos exposure, and that the two disease processes are not "the product of the same chain of causality." (Goodman v. Mead Johnson & Co. (3d Cir.1976), 534 F.2d 566, 574; cf. Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill.2d 23, 29-37; Snyder v. Judar (1985), 132 Ill. App.3d 116, 477 N.E.2d 47.) Accordingly, on this record, defendants did not establish as a matter of law that plaintiff's causes of action accrued in 1972 when VaSalle discovered that he was suffering from asbestosis.

Defendants argue that this holding is erroneous because it permits plaintiff to "split" her causes of action. They maintain that plaintiff has but one indivisible claim for all of VaSalle's asbestos-originating diseases, and that VaSalle first discovered his asbestos diseases in 1972. The legal principle upon which defendants' position relies has no application to the facts and issues presented in the case at bar. In the cases relied upon by defendants for the proposition that a plaintiff may not "split" causes of action among several lawsuits (Reat v. Illinois Central R.R. Co. (1964), 47 Ill. App.2d 267, 197 N.E.2d 860; Melohn v. Ganley (1951), 344 Ill. App. 316, 100 N.E.2d 780; Deer v. New York Central R.R. Co. (7th Cir.1953), 202 F.2d 625), the plaintiffs attempted tardy recovery for complications arising from obvious physical injuries originally sustained as a result of a single traumatic event. We assume, as we must upon this record, that asbestos-originating lung cancer is not a complication of asbestosis. Furthermore, asbestos-originating diseases are latent, caused by what was originally considered harmless exposure to the irritating agent ultimately leading to [*813] physical harm, and are therefore not the result of a single, traumatic event. See Nolan v. Johns-Manville Asbestos (1981), 85 Ill.2d 161, 167, 421 N.E.2d 864; cf. Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill.2d 23, 29-37.

Defendants' argument suggests a per se rule that any worker who is first diagnosed as suffering from asbestosis, and later learns that he suffers from lung cancer caused by asbestos exposure, is forever barred from tort recovery unless his cause of action is filed within two years of asbestosis discovery. Based upon the principles underlying the Illinois Supreme Court's decision in Nolan, we decline to adopt defendants' view. To preclude recovery based upon the statute of limitations under these factual circumstances would afford the plaintiff "`only a delusive remedy. It would mean that at some past moment in time, unknown and inherently unknowable even in retrospect, [plaintiff] was charged with knowledge of [asbestos-originating lung cancer]; under this view [plaintiff's] failure to diagnose within the applicable statute of limitations a disease whose symptoms had not yet obtruded on his consciousness would constitute waiver of his right to compensation at the ultimate day of discovery and disability.'" Nolan v. Johns-Manville Asbestos (1981), 85 Ill.2d 161, 168, 421 N.E.2d 864, 868, quoting Urie v. Thompson (1949), 337 U.S. 163, 169, 93 L.Ed. 1282, 1292, 69 S.Ct. 1018, 1024.

Our holding herein is also in accord with the greater weight of authority in other jurisdictions. See, e.g., Wilson v. Johns-Manville Sales Corp. (D.C. Cir.1982), 684 F.2d 111; Fearson v. Johns-Manville Sales Corp. (D.D.C. 1981), 525 F. Supp. 671; Eagle-Picher Industries, Inc. v. Cox (Fla. App. 1985), 481 So.2d 517; Smith v. Bethlehem Steel Corp. (1985), 303 Md. 213, 492 A.2d 1286; Pierce v. Johns-Manville Sales Corp. (1983), 296 Md. 656, 464 A.2d 1020; Larson v. Johns-Manville Sales Corp. (1986), 427 Mich. 301, 399 N.E.2d 1; see also Goodman v. Mead Johnson & Co. (3d Cir.1976), 534 F.2d 566; Martinez-Ferrer v. Richardson-Merrell, Inc. (1980), 105 Cal. App.3d 316, 164 Cal. Rptr. 591; Sheppard v. A.C. & S. Co. (Del. App. 1985), 498 A.2d 1126; Devlin v. Johns-Manville Corp. (1985), 202 N.J. Super. 556, 495 A.2d 495; but see Ross v. Johns-Manville Corp. (3d Cir.1985), 766 F.2d 823; Joyce v. A.C. & S., Inc. (4th Cir.1986), 785 F.2d 1200; Cathcart v. Keene Industrial Insulation (1984), 324 Pa. Super. 123, 471 A.2d 493; cf. Jackson v. Johns-Manville Sales Corp. (5th Cir.1986), 781 F.2d 394; Trimper v. Porter-Hayden (1985), 305 Md. 31, 501 A.2d 446; DeCosse v. Armstrong Cork Co. (Minn. 1982), 319 N.W.2d 45; LaVelle v. Owens-Corning Fiberglass Co. (1987), 30 Ohio Misc.2d 11, 507 N.E.2d 476; White v. Johns-Manville Corp. (1985), [*814] 103 Wash.2d 344, 693 P.2d 687.

For the reasons stated, the order of the circuit court is reversed and the cause remanded for further proceedings. Reversed and remanded.

JOHNSON, J., concurs.

JUSTICE JIGANTI, dissenting:

Although I agree that under Illinois law the statute of limitations in a latent disease case begins to run on the date the injury is discovered, I do not agree that it begins to run anew for each successive injury caused by the same wrongful act. For this reason, I respectfully dissent from the majority opinion.

Illinois law imposes a two-year limitations period on a cause of action for personal injury. (Ill. Rev. Stat. 1985, ch. 110, par. 13-202.) In the case of injuries that develop over a long period of time, such as asbestos-related diseases, the cause of action does not accrue until the plaintiff knows or reasonably should know both of the injury and that it was wrongfully caused. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill.2d 161, 169, 421 N.E.2d 864.) However, once the existence of an injury and its wrongful cause are known, the fact that the full extent of the plaintiff's damages is not immediately ascertainable will not toll the limitations period. Reat v. Illinois Central R.R. Co. (1964), 47 Ill. App.2d 267, 271-72, 197 N.E.2d 860; Deer v. New York Central R.R. Co. (7th Cir.1953), 202 F.2d 625, 628; Aetna Life & Casualty Co. v. Lobianco & Son Co. (1976), 43 Ill. App.3d 765, 768, 357 N.E.2d 621, aff'd (1977), 69 Ill.2d 126; Del Bianco v. American Motorists

Insurance Co. (1979), 73 Ill. App.3d 743, 747, 392 N.E.2d 120; Austin v. House of Vision, Inc. (1968), 101 Ill. App.2d 251, 256, 243 N.E.2d 297.

In Reat v. Illinois Central R.R. Co. (1964), 47 Ill. App.2d 267, 197 N.E.2d 860, the plaintiff brought a lawsuit against his employer for damages resulting from a 1955 accident which caused an injury to his foot. A doctor took X rays and wrongfully advised the plaintiff that his foot was not damaged. In fact, the foot was fractured, causing the plaintiff to subsequently develop an infection which necessitated amputation of a portion of the leg in 1958. The court held that the plaintiff's cause of action accrued for purposes of the statute of limitations in 1955 when the injury occurred and that no new cause of action arose as a result of the subsequent infection. In support of this conclusion, the Reat court cited the Seventh Circuit Court of Appeals [*815] decision in Deer v. New York Central R.R. Co. (7th Cir.1953), 202 F.2d 625. The plaintiff in Deer was injured in 1945 when he was struck on the head by a chain hoist. Two months after the accident, his hair began to fall out and he was told by his doctor that his hair nerves were paralyzed. In 1946, the plaintiff began to suffer headaches and seizures, and in 1950 he was advised that he had developed a brain tumor as a result of the accident. The court in Deer, interpreting Illinois law, held that the cause of action accrued at the time of the initial injury in 1945 and that no new cause of action arose when the plaintiff subsequently developed a brain tumor. In line with the reasoning of Reat and Deer, I believe that the instant cause of action accrued, for purposes of the statute of limitations, in 1972 when the plaintiff discovered that he had asbestosis resulting from the defendant's wrongful conduct. At that time, he knew both that he was injured and that the injury was wrongfully caused. (See Nolan v. Johns-Manville Asbestos (1981), 85 Ill.2d 161, 169, 421 N.E.2d 864.) Given the above-cited case law, I do not believe that Illinois law can be properly interpreted to allow a personal injury plaintiff in a latent disease case to state a separate cause of action with a separate two-year limitations period for each distinct injury resulting from the same wrongful conduct.

Sources

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