Statutes of Limitation Eased to Permit Latent Disease Claims

Each year hundreds of thousands of cancer deaths in the United States are attributed to exposure to the increasing quantities and types of hazardous chemicals present in the environment, including the workplace.¹ For a variety of reasons, victims of cancer caused by these substances face great obstacles in recovering damages from manufacturers, distributors, and users of the various products. Probably the most important is that little is known about the biochemical processes that lead to the formation of cancer. Thus, a major hurdle in ensuing litigation is proving to a legal certainty that plaintiff's injury was caused by defendant. However, these difficulties are not always insurmountable, and many plaintiffs have been able to receive compensation under workers' compensation statutes or through tort actions, including negligence and strict products liability claims.

The insidious nature of cancer creates another barrier to plaintiffs exposed to carcinogens. Since the latency period for most cancers is from 10 to 35 years, a plaintiff may not become aware of the disease until long after the statute has run, thus recovery for injuries may be barred by statutes of limitation. Recognizing the problem peculiar to latent diseases, many courts have liberally interpreted ambiguous statutes of limitation or avoided them altogether to arrive at a "fair" result. In a recent products liability case, Locke v. Johns-Manville Corp.,² the Supreme Court of Virginia liberally construed a two-year personal injury statute of limitation to permit a plaintiff to recover damages despite the fact that the last exposure to defendants' asbestos products occurred six years prior to the filing of the law suit. Similarly, in Clutter v. Johns-Manville Sales Corp.,³ the Sixth Circuit Court of Appeals, in three asbestosis and mesothelioma claims, interpreted an Ohio statute of limitation liberally to allow the parties to proceed to the merits.

Statutes of limitation

Statutes of limitation conventionally require the assertion of claims within a specified period of time after an injury is sustained. The primary purpose underlying such time limitations is to compel the exercise of a right of action within a reasonable time to permit a fair opportunity for defense. Promptness in instituting actions suppresses stale or fraudulent claims and avoids inconvenience [11 ELR 10083] caused by delay, such as lost evidence, faded memories, the disappearance of witnesses, and certainty of the end to potential claims.

In traditional products liability cases, statutes of limitation create few difficulties for plaintiffs since there is rarely a significant period of time between a tortious act and the resultant damage. However, in cases involving insidious diseases such as cancer, plaintiffs are often unaware of the disease until long after exposure to disease-causing substances. Whereas the latency periods for cancer can range up to 35 years,⁴ the statutory periods of limitation range from one to six years in negligence claims for personal injury and 90 days to two years in workers' compensation claims.⁵ Thus, the question of when a cause of action accrues and the statute of limitation begins to run becomes critically significant.

Depending on the legal theories used, the language of the relevant statute, and the law of the forum, statutes of limitation have been held to run at the time of (1) the wrongful conduct, (2) the last injurious exposure, (3) the disability, and (4) the discovery of the disease.⁶ Negligence cases generally follow the rule that the cause of action accrues at the time of the wrongful conduct. For victims of cancer, this rule may lead to inequitable results since the existence of damage is usually unknown for several years after the exposure to the substance through defendant's negligence. For example, in Thornton v. Roosevelt Hospital,⁷ the New York Court of Appeals held that an injury occurs when there is a wrongful invasion of personal or property rights; at that point the cause of action accrues. Thus, a defendant's injury was found to have occurred at the time she was injected with thorium dioxide, a radioactive dye, even though her cancer was not discovered for 20 years. Following this decision, New York courts have dismissed as time barred asbestos cases where plaintiffs discovered their injuries years after initial exposure to asbestos products.⁸

Other courts have held that the statute of limitation begins to run at the time of last exposure.⁹ This approach recognizes that the latent nature of cancer makes it difficult to determine when the development of the cancer began. However, it unrealistically assumes that plaintiff's injury should be discernible at that point, because of either a lengthy exposure to a carcinogen or prompt manifestation of the disease. Garrett v. Raytheon Co., Inc.¹⁰ illustrates the inappropriateness of this strict rule when applied to cancer claims. In this radiation exposure case, the Alabama Supreme Court determined that, at the earliest, the statute of limitation should begin to run at the time of plaintiff's last exposure to the radiation. Plaintiff's ignorance of the injury, without fraudulent concealment by defendant, did not postpone the running of the statute until the injury was discovered.

An increasing number of courts have found statutes of limitation to be ambiguous and interpreted them to produce a more favorable result for plaintiffs. They have found that the public policy considerations underlying a limitation statute are frequently outweighed by the need for fairness. In Urie v. Thompson,¹¹ the Supreme Court ruled in 1949 that where the plaintiff's injury derived from an inherently unknowable source, the federal statute of limitation should not begin to run until the plaintiff, at a minimum, learns of the existence of the injury. Applying the Federal Employees' Liability Act, the Court concluded it would be unreasonable and inequitable to consider the date of last exposure as the date of accrual when a plaintiff, who contracted silicosis, was exposed to an inherently unknowable harm. It weighed the conflicting policy considerations for strictly applying the statute and determined that the legislature could not have intended such a harsh result.

Several state courts have also applied a "discovery rule" where plaintiff has been exposed to carcinogens.¹² In Nolan v. Johns-Manville Asbestos & Magnesia Materials Co.,¹³ plaintiff was employed as an asbestos insulator from 1941 to 1973. Although Nolan first began to experience lung problems in 1957, asbestosis¹⁴ was not diagnosed until he was hospitalized in 1973. Nolan then instituted a products liability action against several manufacturers of asbestos insulation. The Illinois court, finding that the desire for promptness in filing claims was outweighed by the possible injustice to victims of latent diseases, ruled that the statute of limitation began to run when plaintiff discovered or should have discovered he had the disease, that time to be determined by the trier of fact.

Although there appears to be a trend favoring adoption of a discovery rule with respect to latent disease claims, courts differ as to what constitutes the date of discovery. Some courts, as in Nolan, have held that the statute of limitation begins running when the plaintiff discovers or should have discovered the injury. However, given the difficulties of identifying the causes of such diseases, the claim may be time-barred under this approach before a plaintiff is aware that he or she may have a valid legal claim against a defendant.¹⁵ To avoid this harsh result, [11 ELR 10084] some courts have extended the discovery rule to the time when the plaintiff becomes or should become aware of a causal connection between the defendant's acts and the injury.

For example, in Roman v. A.H. Robbins Co., Inc.¹⁶ the Fifth Circuit, applying Texas law, held that the statute of limitation did not begin to run until the plaintiff was aware that there was a causal relationship between her adverse reaction and the prescription drug manufactured by the defendant. In Goodman v. Mead Johnson & Co.,¹⁷ this ruling was taken a step further. In that case the plaintiff's decedent had ingested an oral contraceptive until 1967, when she discovered that she had contracted thrombophlebitis. Following her death, a wrongful death action was instituted in 1971. Reversing the district court's dismissal of the suit, the Third Circuit Court of Appeals held that the action was not barred by the three-year statute of limitation. The court found that although Goodman knew of a possible relationship between her thrombophlebitis and her use of the pill, the statute of limitation began to run only when she was aware of not only the injury itself and the causal link between the injury and the product, but the legal causal link between the injury and the defendant's negligence. Similarly, in Raymond v. Eli Lilly & Co.¹⁸ the New Hampshire Supreme Court ruled that the statute of limitation in a drug case did not begin to run until plaintiff was aware of both the physical injury and that a legal claim could be made against the defendant.

However, these expansions of the discovery rule may be questioned in light of the Supreme Court's 1979 decision in United States v. Kubrick.¹⁹ Applying a federal statute of limitation to a medical malpractice case under the Federal Tort Claims Act, the court held that the plaintiff's cause of action accrued as soon as the plaintiff knew of the existence and the probable cause of his injury, and not when he knew that his injury was negligently inflicted.

New Twist to Ease Statutes of Limitation

Recent decisions by the Supreme Court of Virginia and the Sixth Circuit Court of Appeals illustrate how these courts have interpreted personal injury statutes of limitation to avoid harsh effects on plaintiffs. In Locke v. Johns-Manville Corp.²⁰ plaintiff brought a negligence action in 1978 to recover damages for contracting mesothelioma, a fatal form of cancer caused by inhalation of asbestos particles. During the period from 1948 to 1972, plaintiff was exposed through his occupation to various asbestos products manufactured and distributed by defendants. The date of last exposure was 1972, but plaintiff did not become aware nor was there any medical evidence that he had contracted mesothelioma until 1978.²¹

The applicable two-year statute of limitation provided that "[i]n every action for which a limitation period is prescribed, the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person."²² Applying this statute, the trial court ruled that the cause of action accrued no later than the date of last exposure in 1972 and was therefore time-barred. On appeal, plaintiff argued that his injury was sustained subsequent to the last exposure, and the cause of action did not accrue until he had a "legally provable injury." As applied to the disease of mesothelioma, he argued, there is no injury until the "cancer manifests itself with sufficient certainty to be subject to proof in court."²³

The court agreed with the plaintiff and adopted a modified version of the discovery rule. At the outset, the court found that Virginia's 1977 statute of limitation is compatible with the nature and purposes of a general limitation statute. It requires prompt assertion of an accrued right of action but does not bar such right before it has accrued. Finding that no right of action accrues without injury to a plaintiff, the court construed the word "injury" to mean a positive physical or mental hurt, not hurt in the sense that a legally protected interest has been invaded. The running of the statute is thus keyed to actual harm to the plaintiff, not the date of the wrongful act. The court found that although plaintiff was exposed to asbestos fibers between 1948 and 1972, there was no medical evidence of any lung disease and thus no injury prior to 1978.

Consequently, the court held that the cause of action accrued and the statute of limitation began to run from the time plaintiff first experienced impairment of lung function or when an x-ray taken in May 1978 revealed a lung abnormality, not from the time of last exposure. The court pointed out that under this rule, the limitation period does not necessarily begin to run at the onset of symptoms or even at the first diagnosis. In some circumstances, expert medical testimony could prove that the injury had occurred years prior to the onset of symptoms. Thus, the statute could be triggered years before litigation could be expected to begin.

The court went to great lengths to emphasize that it was not adopting the "discovery rule," and it traced a long line of Virginia cases that had rejected that rule. In those decisions, the injury existed at the time of the wrongful act, but it had not been discovered within the limitation period. For example, in Street v. Consumer Mining Corp.²⁴ plaintiff's disease had existed for 10 to 15 years, although there was no definite evidence to show when it was contracted. The court held that the injury was complete and the cause of action accrued years before the wrongful death action was instituted. In Hawks v. Dehart,²⁵ the cause of action in a medical malpractice case was deemed to have accrued in 1946 when a surgical needle was negligently left in plaintiff's neck.The court ruled that the 1963 suit was time-barred even though the needle was not discovered until 1962. Since there was no provable injury in Locke at the time of the wrongful act, [11 ELR 10085] the court found that it would be inequitable to bar a mesothelioma plaintiff's cause of action before an injury is suspected.

Recently, in Clutter v. Johns-Manville Sales Corp.,²⁶ the Sixth Circuit, applying Ohio law, ruled that claims for insidious diseases caused by exposure to asbestos accrue when the disease has manifested. The court distinguished a series of Ohio tort cases applying the two-year statute of limitation²⁷ that had rejected the discovery rule. In those cases the injury to the plaintiff had arisen contemporaneously with the tortious act, and none involved an insidious disease such as asbestosis where the damage may not be manifest until long after the exposure ceases. Moreover, other products liability cases applying Ohio law had implicitly used the date a latent defect manifests itself rather than the date of defendant's tortious conduct as the date of accrual. Finally, the court found no reason to overrule a previous Sixth Circuit decision, Brush Beryllium Co. v. Meckley,²⁸ which established the "manifestation rule." There, the court held that the statute of limitation did not bar a claim for injury from berylliosis, which became manifest ten years after plaintiff's last exposure. Following Brush, the Clutter court concluded that the manifestation rule should again be applied. The Clutter court emphasized, however, as had the Locke court, that it was not adopting a discovery rule. Although manifestation and discovery of a disease may coincide, a condition may be manifested before it has or reasonably should have been discovered.²⁹ Thus, the two rules were not necessarily the same.

Conclusion

The Virginia Supreme Court, as did the Sixth Circuit, recognized the tension between the policies underlying statutes of limitation and the need to preserve legal remedies for victims of environmentally caused cancer. However, their rejection in Locke and Clutter of the discovery rule is clearly against the great weight of authority in this country.³⁰ As had Alabama's Suprem Court when it rejected the rule,³¹ the Virginia court found that only the legislature could adopt a more equitable rule.

It is worth noting that many courts have reconciled the purposes of the statutes of limitation with the discovery rule.³² In rejecting defendants' claim of prejudice from being required to defend stale claims, courts have found that the passage of time often presents more difficulties for plaintiffs than for defendants. In addition, since the defendant employer or manufacturer is more likely than plaintiffs to have access to evidence, time delays do not necessarily lead to lost or inaccurate evidence which is often documentary in nature and maintained for long periods. Defendant manufacturers, especially in drug cases, are likely to know of the latency periods involved between exposure to their substances and manifestation of injuries and therefore would be prejudiced by a late-filed lawsuit to a lesser degree than typical tort defendants.³³

Although the Virginia court's failure to adopt the discovery rule did not bar recovery by the plaintiff, its ruling that the cause of action accrues when there is a "legally provable injury" may lead to a different result very rarely, possibly only in mesothelioma cases where the time between the exhibition of symptoms and death is quite short. The same effect can be expected of the Sixth Circuit's "manifestation rule," which appears undistinguishable from the "provable injury rule." With some cancers it may be possible for defendants to show that the cancer existed long before the plaintiff experienced any symptoms, and thus plaintiff's action would be barred.³⁴ And with other cancers it is unrealistic to assume that a plaintiff could provide evidence that "pinpoints the precise date of injury with a reasonable degree of medical certainty." Ironically, the court's valiant effort to protect the plaintiff in Locke may have made it difficult for future victims to recover in court.

1. For a discussion of cancer statistics, see Ritts, Occupational Cancer and Statutes of Limitation on Occupational Disease Claims, (forthcoming) 5 WORKMEN'S COMP. L. REV. __ (1981).

2. 11 ELR 20326 (Va. Mar. 6, 1981).

3. __ F.2d __ (6th Cir. Apr. 7, 1981).

4. Schottenfeld & Haas, Industrial Agents Associated with Cancer, 8 CLIN. BULL. 110, 116 (1978).

5. Ritts, supra note 1.

6. See Peters, Occupational Carcinogenesis and Statutes of Limitation: Resolving Relevant Policy Goals, 10 ENVT'L L. 113 (1979), Birnbaum, Statutes of Limitations in Environmental Suits: The Discovery Rule Approach, 16 TRIAL 34 (1980).

7. 47 N.Y.2d 780, 417 N.Y.S.2d 920 (1979).

8. See Rosenberg v. Johns-Manville Prods. Corp., (Sup. Ct. N.Y. Co. No. 9913/78); but see McKee v. Johns-Manville Corp., 94 Misc. 2d 327, 404 N.Y.S. 814 (1978) (claim not barred under a strict liability theory).

9. See Legate v. Bituminous Fire & Marine Ins. Co., 482 S.W.2d 488 (Tex. Civ. App. 1972) (last day of employment commences running of statute). Cf. Yocom v. Karst, 528 S.W.2d 697 (Ky. 1975) (reemployment, which aggravates a condition, does not extend the time for commencing the running of the statute).

10. 368 So. 2d 516 (Ala. 1979).

11. 337 U.S. 163 (1949).

12. Connerly v. Morris, 575 S.W.2d 633 (Tex. Civ. App. 1979); Karjala v. Johns-Manville Prods. Corp., 523 F.2d 155 (8th Cir. 1975); Louisville Trust Co. v. Johns-Manville Prods. Corp., 580 S.W.2d 497 (Ky. 1979).

13. 392 N.E.2d 1352 (Ill. App. 1979).

14. Asbestosis is defined as fibrosis of the lungs due to inhalation of asbestos fibers. See generally I. SELIKOFF & D. LEE, ASBESTOS AND DISEASE (1978).

15. See Riley v. Indus. Comm'n, 536 P.2d 219 (Ariz. 1975) (statutory time began running when the disease first manifested itself and was not extended until the plaintiff knew she had a right to benefit under a worker's compensation statute).

16. 518 F.2d 970 (5th Cir. 1975).

17. 534 F.2d 566 (3d Cir. 1976).

18. 371 A.2d 170 (N.H. 1977).

19. 444 U.S. 111 (1979).

20. 11 ELR 20326 (Va. Mar. 6, 1981).

21. Diagnosis of mesothelioma, especially in the early stages, is very difficult. See I. SELIKOFF & D. LEE, ASBESTOS AND DISEASE 295 (1978). Plaintiff filed the suit in July 1978 and died of malignant mesothelioma on December 27, 1978.

22. VA. CODE § 8.01-230.

23. 11 ELR at 20327.

24. 39 S.E.2d 271 (Va. 1946).

25. 146 S.E.2d 187 (Va. 1966).

26. __ F.2d __ (6th Cir. Apr. 7, 1981).

27. OHIO REV. CODE § 2305.10.

28. 284 F.2d 797 (6th Cir. 1960).

29. The Ohio legislature has, subsequent to the filing of this lawsuit, adopted a discovery rule for asbestosis claims which provides that the cause of action accrues when the plaintiff is informed by competent medical testimony or should have become aware of an injury due to exposure to asbestos or chromium. OHIO REV. CODE § 2305.10. Under Ohio law this amendment did not apply retroactively to the case. OHIO REV. CODE § 2305.10.

30. See generally Birnbaum, Statutes of Limitations in Environmental Suits: The Discovery Rule Approach, 16 TRIAL 34 (1980); McGovern, The Status of Statutes of Limitations and Statutes of Repose in Product Liability Actions: Present and Future, 16 FORUM 416 (1981) (Appendix B lists states which apply the discovery rule).

31. The Alabama Supreme Court expressly rejected the discovery rule in Garrett v. Raytheon Co., Inc., 368 So. 2d 516 (Ala. 1979). See text at note 9, supra.

32. See Urie v. Thompson, 337 U.S. 163 (1949); Raymond v. Eli Lilly & Co., 371 A.2d 170 (N.H. 1977).

33. See Raymond v. Eli Lilly & Co., 371 A.2d 170 (N.H. 1977).

34. See Street v. Consumer Mining Corp., 39 S.E.2d 271 (Va. 1946), Hawks v. Dehart, 146 S.E.2d 187 (Va. 1966). For a discussion of cancer development, see A. LILIENFELD, FOUNDATIONS OF EPIDEMIOLOGY 44 (1976).