A decision by the Virginia Supreme Court regarding the statute of limitations on personal injury or wrongful death claims related to asbestos highlights the fact that these cases need to be promptly filed.
Our Boston mesothelioma lawyers know that some people diagnosed with asbestosis – a chronic disease with a shorter latency period – won’t make the effort to meet with a lawyer. Instead, they wait until they have been diagnosed with mesothelioma to file a lawsuit. This could be a mistake that might jeopardize the viability of your claim, based on statute of limitations issues.
The Massachusetts statute of limitations on mesothelioma and asbestos injury claims is actually more lenient than in Virginia – it’s either three years from the diagnosis, or three years from death if the claim is for wrongful death. In Virginia, it’s two years from diagnosis or two years from death.
That seems a fairly straightforward rule. However, things might get complicated when mesothelioma sufferers were previously diagnosed with an earlier, less serious asbestos-related illness. Normally in personal injury cases, the clock on the statute of limitations would start at the time of the incident. But the legislators and judges have recognized that mesothelioma and other asbestos-related illnesses are different because of the long latency period between the time of exposure and the time the sickness is actually manifested and diagnosed.
In these instances where a person had an earlier asbestos-related diagnosis and then is only later diagnosed with mesothelioma, the question is when does the clock begin ticking: When you were first diagnosed with an asbestos-related ailment, and therefore learned that harm had befallen you as a result of the exposure? Or is there potential for each cause of action to be considered separate?
The Virginia Supreme Court unfortunately ruled in Kiser v. A.W. Chesterton Co. that the statute of limitations clock starts at that first diagnosis, per Virginia Code 8.01-249(4).
The court conceded that this almost inevitably would lead to mesothelioma sufferers being unable to file a personal injury claim. But they said this discrepancy was something the General Assembly would need to address – not the courts.
The case stemmed from a claim filed by the widow of a man who had been exposed to asbestos while working in a factory in Virginia between 1957 and 1985. In 1988, he was diagnosed with nonmalignant pleural thickening and asbestosis. At that time, he filed a lawsuit against a number of distributors, manufacturers and sellers of asbestos products for his employment-related asbestos exposure and subsequent medical condition.
Then in late 2008, he was diagnosed with mesothelioma and he died the following spring. His widow filed a wrongful death suit a year-and-a-half later against different defendants. The defendants then filed motions to have the case dismissed on the theory that the two-year statute of limitations clock started upon receiving his first diagnosis.
The court concurred.
One dissenting justice however wrote that there is no statutory or common law rule in the state that requires each diagnosis to be considered all part of a singular cause of action.
If you or a loved one is diagnosed with mesothelioma in New England, call for a free and confidential appointment at (617) 777-7777.
Additional Resources:
Va. SC addresses statute of limitations in asbestos case, Jan. 17, 2013, By Nathan Bass, Legal Newsline
More Blog Entries:
Business Fined $70K for Asbestos Violation, Jan. 12, 2013, Boston Mesothelioma Lawyer Blog