Asbestos litigation is considered the “longest-running mass tort” in U.S. history. But, asbestos cases aren’t 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. This includes limits on the amount of time asbestos claimants have to file lawsuits.
What Are Statutes of Limitations?
Statute of limitations 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.
The statutes of limitations period for personal injury cases is six years in Maine and North Dakota. The time limit is only one year in Kentucky, Louisiana and Tennessee. All other states fall somewhere in between.
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Challenges of Applying Statutes of Limitations to Asbestos Claims
Applying the statute of limitations is straightforward in most personal injury cases. A claimant usually knows when the clock starts ticking on the claim. That’s because a claimant usually knows when they were injured. But that’s usually not the case for asbestos personal injury claimants.
It can take at least 20 years after asbestos exposure to develop an asbestos-related disease. Unlike most injuries, the conduct that causes asbestos-related injuries usually can’t be traced to a single moment in time. Rather, it’s traced back to a period of exposure to asbestos over time (e.g., a portion of work history).
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, their claims would be barred before they even realized they were injured.
Courts interpret statute of limitations uniquely for asbestos claimants because it takes decades to develop asbestos-related diseases.
‘Discovery Rule’ for Asbestos Cases
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.
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The plaintiff in that case was Clarence Borel. He 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. In March 1969, he was diagnosed with pulmonary asbestosis.
Seven months later, Borel filed a lawsuit against the 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 U.S. Court of Appeals for the Fifth Circuit recognized the unfairness in applying the traditional rule to asbestos claimants. 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 court decided that the rule was also appropriate for asbestos personal injury cases. 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.”
The Borel case is important because it was the first to hold manufacturers liable for asbestos injuries.
Today, courts across the country now apply the discovery rule 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 date they were 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. The same time frame usually applies to file a wrongful death lawsuit.
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 help. They can review your work history, trace where you were exposed to asbestos and weigh in on any options for compensation.
We can help you find a qualified mesothelioma attorney with the right experience to review your case.
5 Cited Article Sources
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Classen, H.W. (1987). An Investigation into the Statute of Limitations and Product Identification in Asbestos Litigation. :
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Justia. (1974). Borel v. Fibreboard Paper Prods. Corp.
Retrieved from: https://law.justia.com/cases/federal/appellate-courts/F2/493/1076/4552/
Justia. (1981). Nolan v. Johns-Manville Asbestos.
Retrieved from: https://law.justia.com/cases/illinois/supreme-court/1981/52484-6.html
- Mehs, L.K. (1990). Asbestos Litigation and Statutes of Repose: The Application of the Discovery Rule in the Eighth Circuit Allows Plaintiffs to Breathe Easier. : (1990-1991).pdf?sequence=1 Retrieved from: http://dspace.creighton.edu:8080/xmlui/bitstream/handle/10504/39872/43_24CreightonLRev965
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Last Modified April 2, 2019