Statute of Limitations

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Asbestos litigation may be considered the” longest-running mass tort” in U.S. history, but asbestos cases generally aren’t considered typical lawsuits. This is due, in part, to the long latency periods for asbestos-related diseases. Long latency periods complicate many aspects of asbestos litigation, including limits on the amount of time asbestos claimants have to file lawsuits.

These limits are known as statutes of limitations. The origins of statutes of limitations can be traced back to Roman law. But since asbestos litigation began in the late 1960s, special provisions have developed for timing asbestos personal injury claims.

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What Are Statutes of Limitations?

As the name suggests, these laws limit the amount of time a claimant can wait to file a lawsuit. The statutes governing limitations periods vary by state. They also vary by the type of claim.

The type of claim is important for determining when the limitations period begins to run. With few exceptions, plaintiffs are barred from filing a claim if they wait too long after the statute of limitations begins to run.

So, for instance, under the law, a person filing a breach of contract claim would have a certain amount of time to file a lawsuit after a contract is broken. Similarly, the law gives a person filing a personal injury claim a certain amount of time to file a lawsuit after being injured.

Challenges of Applying Statutes of Limitations to Asbestos Claims

Applying the statute of limitations is straightforward in most cases. In personal injury cases, a claimant usually knows when the clock starts ticking on his claim because he usually knows when he was hit by a bus or otherwise injured. But that's usually not the case for asbestos personal injury claimants.

It's harder to pin down the time of injury for these claimants. That's because it can take at least 20 years after asbestos exposure to be diagnosed with an asbestos-related disease like asbestosis or mesothelioma. And unlike most injuries, such as getting hit by a vehicle, the conduct that causes asbestos personal injuries usually can't be traced to a single moment in time. Rather, it's usually traced back to a period of exposure to asbestos over time (e.g., a portion of work history).

Further complicating things for asbestos claimants is the reality that statutes of limitations don't run nearly as long as it takes to diagnose an asbestos-related disease. Statutes governing limitations periods for personal injuries range from roughly one to six years. It takes much longer than that for asbestos claimants to discover their injuries. If asbestos claimants were held to the same standard as most personal injury claimants (e.g., the clock begins to run at the time of injury), their claims would be barred before they even realized they were injured.

Fortunately, courts have made exceptions for asbestos claimants when it comes to applying limitations periods.

'Discovery Rule' for Asbestos Cases

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Traditionally, the limitations clock begins to run when the plaintiff is injured. In 1973, the landmark asbestos case, Borel v. Fibreboard Paper Prods. Corp., addressed the difficulty of applying the traditional rule to asbestos claimants. Since then, courts have applied the "discovery rule" to asbestos cases.

The plaintiff in that case, Clarence Borel, was an industrial insulation worker who was exposed to asbestos for more than 33 years. Between 1936 and 1969, he was exposed to asbestos-laced insulation materials from multiple manufacturers. In March 1969, after being hospitalized and undergoing a lung biopsy, he was diagnosed with pulmonary asbestosis. Seven months later, Mr. Borel filed a lawsuit against certain manufacturers of the insulation materials he used at work. His condition continued to worsen, and he learned that he had mesothelioma while having his right lung removed in 1970.

The defendants argued that his claim was barred by Texas' two-year statute of limitations. Among other arguments, they claimed that Mr. Borel's cause of action began to accrue at the time of injury. According to them, his injury took place long before he filed his claim in 1969 because he had been exposed to asbestos dust since 1936.

Fortunately, the U.S. Court of Appeals for the Fifth Circuit recognized the unfairness in applying the traditional rule to asbestos claimants like Mr. Borel. In doing so, the court noted a line of personal injury cases involving exposure to dangerous substances. Those cases held that a cause of action did not accrue (e.g., the clock did not begin to tick) until "the effects of such exposures manifest themselves."

The Fifth Circuit also noted the discovery rule applied in medical malpractice cases. Under that rule, "the cause of action does not accrue until the injury is discovered or in the exercise of reasonable diligence should have been discovered." The Borel court decided that the rule was also appropriate for asbestos personal injury cases. As an Illinois court later explained it in an asbestos case against Johns-Manville: "the cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another."

Borel is usually considered important because it was the first legal case to hold manufacturers strictly liable for injuries resulting from asbestos exposure. But it's also notable that the court never would have reached that decision if the clock on Mr. Borel's claim had started running at the time of injury rather than the time he discovered his injury.

Today, courts across the country now apply the discovery rule when applying statutes of limitations to asbestos cases. Plaintiffs in these cases have a certain amount of time to file their claims after they knew or should have known of injuries . This is usually considered the time they were diagnosed with an asbestos-related disease. If you are diagnosed with an asbestos-related disease, in most states you generally have 12 to 24 months after your diagnosis to file a personal injury lawsuit. If your loved one has died because of asbestos exposure, in most states you usually have 12 to 24 months after your loved one's death to file a wrongful death lawsuit.

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Getting Assistance

If you have been injured by asbestos exposure, the length of the limitations period for your claim will depend on state law. Even if you have time to file a lawsuit, you should do so sooner rather than later. It is wise to talk directly with an attorney instead of guessing whether you still have time to file a claim. An experienced mesothelioma attorney can review your work history, trace where you were exposed to asbestos and weigh in on any options for compensation. As a mesothelioma case is prepared, the attorney may discover additional defendants. Filing the your case early gives the attorney a chance to amend the complaint and include additional defendants. Let us help you contact a qualified mesothelioma attorney as soon as possible to find out about the applicable statute of limitations for your case.

Additional Resources


Tim Povtak is an award-winning writer with more than 30 years of reporting national and international news. His most recent experience is in researching and writing about asbestos litigation issues and asbestos-related conditions like mesothelioma. If you have a story idea for Tim, please email him at tpovtak@asbestos.com

  1. Paul D. Swanson, Note, Limitless Limitations: How War Overwhelms Criminal Statutes of Limitations, 97 Cornell L. Rev. 1557 (2012). Available at http://cornelllawreview.org/files/2013/02/Swanson-final2.pdf.
  2. http://www.nolo.com/legal-encyclopedia/statute-of-limitations-state-laws-chart-29941.html.
  3. H. Ward, Classen, An Investigation into the Statute of Limitations and Product Identification in Asbestos Litigation, 30 How. L.J. 1 (1987). Available at http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/howlj30&div=10&id=&page=.
  4. George Robertson Murphy III, Asbestosis Litigation: Prescription, Contribution, Exposure, Insurance, and the Public Interest - A Casenote on Cole v. Celotex Corp., 54 La. L. Rev. 467 (1993). Available at http://digitalcommons.law.lsu.edu/lalrev/vol54/iss2/9.
  5. Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S. Ct. 127 (1974).
  6. Nolan v. Johns-Manville Asbestos, 421 N.E.2d 864, 868 (Ill. 1981).
  7. Lisa K. Mehs, Asbestos Litigation and Statutes of Repose: The Application of the Discovery Rule in the Eighth Circuit Allows Plaintiffs to Breathe Easier, 24 Creighton L. Rev.965 (1990). Available at https://dspace.creighton.edu/xmlui/.

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