ALABAMA: Mesothelioma Lawsuit
For decades, the Alabama Supreme Court’s decision in Garrett v. Raytheon dictated that the state’s two-year statute of limitations for toxic torts cases ran from the date of the plaintiff’s last exposure to the toxic substance.
Because the serious health effects caused by asbestos exposure may not manifest into a diagnosis of mesothelioma until years or even decades after such exposure, under the frequently harsh “last exposure rule”, the statute of limitations would have likely expired well before a potential plaintiff ever discovered that he had mesothelioma.
While there was an exception for persons suffering from an asbestos-related disease, such as mesothelioma, whose last exposure to an asbestos product occurred after May 1979, a potential plaintiff last exposed to an asbestos product before May 1979 would likely have no viable claim against that product’s manufacturer by the time he is diagnosed with the disease.
However, in an important toxic tort decision, Griffin v. Unocal Corp., the Alabama Supreme Court overruled its decades-old last exposure rule in toxic tort cases, and instead adopted a more rational “discovery rule.”
Under the discovery rule, a potential plaintiff’s claim accrues, and the statute of limitations begins to run, on the first date the injured party, through reasonable diligence, should have reason to discover the injury – in a case of mesothelioma, the date of diagnosis.
As it appears from the court’s opinion, Alabama courts will now apply the discovery rule regardless of the date of last exposure.
In the Griffin case, David Griffin was exposed to hazardous chemicals manufactured by multiple chemical companies while employed at a tire-manufacturing facility in Tuscaloosa, Alabama, from 1973 to 1993.
David was diagnosed with acute myelogenous leukemia on September 9, 2003, approximately ten years after he left his employment at the tire plant. He died in February 2004 as a result of his leukemia.
A week later, his wife, Brenda Sue Griffin, filed a wrongful death lawsuit on his behalf alleging that David’s illness and subsequent death was caused by his exposure to various chemicals during his employment at the tire manufacturing facility.
The defendant chemical companies filed motions to dismiss stating that Plaintiff’s claims were time-barred because her claim accrued and the statute of limitations began to run in 1993, and the time to start an action expired in 1995 (despite the fact that David discovered his injuries eight years later!). The trial court granted the defendants’ motions.
On appeal, the Supreme Court of Alabama overruled Garrett and the cases that followed its ruling, and stated that a cause of action, such as one for mesothelioma, accrues not on the date of last exposure, but instead, only when there has occurred a manifest,
In overturning the trial court’s dismissal of Plaintiff’s claims, the Supreme Court held that the proper construction of the term “accrued” means that a cause of action arises only when there has occurred a manifest, present injury.
The Court further held that a “manifest, present injury” exists when a condition has evidenced itself sufficiently that its existence is objectively evident and apparent, even if only to the diagnostic skills of a physician.
In the case of mesothelioma, even though the exposure to asbestos may have occurred years ago, the present injury is the diagnosis of mesothelioma.
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