1 ASBESTOS LITIGATION AND STATUTES OF REPOSE: THE APPLICATION OF THE DISCOVERY RULE IN THE EIGHTH CIRCUIT ALLOWS PLAINTIFFS TO BREATHE EASIER INTRODUCTION Asbestos has been known to man for centuries.' The ability of asbestos to perform the functions of insulation and resistance to fire, while remaining relatively indestructible, has led to its use in thousands of products. 2 Only recently has society become aware of the dangers to human health and life associated with using one of the most dangerous materials of nature. 3 In recent years, litigation involving asbestos-related injuries has increased dramatically. 4 Three diseases have been positively linked with exposure to asbestos fibers: asbestosis, mesothelioma, and various cancers. 5 The diseases associated with asbestos exposure are all characterized by long latency periods. 6 During the latency period, the disease is dormant and not capable of being detected through routine examination. 7 The latency period for asbestosis has been estimated at ten to forty years following exposure to large quantities of asbestos fibers Mehaffy, Asbestos-Related Lung Disease, 16 FoRUM 341, 342 (1980). The use of asbestos dates back to the fifth century B.C. Early writers such as Pliny the Elder, Herodotus and Plutarch mentioned it. Benjamin Franklin owned a purse made out of asbestos and firemen wore asbestos clothing as early as Id. 2. Id. at ; T. WI.LGING, TRENDS IN ASBESTOS LITIGATION 7 (Federal Judicial Center 1987). 3. Mehaffy, 16 FORUM at Classen, An Investigation into the Statute of Limitations and Product Identifiation in Asbestos Litigation, 30 How. L.J. 1, 1 (1987). The number of cases grows every year because of the long latency period associated with asbestos-related diseases. Id. 5. T. WILLGING, supra note 2, at 5. Asbestosis is "a pulmonary insufficiency caused by a destruction of air sacs in healthy lung tissue." Id. at 5 n.8 (citing Selikoff, Churg & Hammond, Asbestos Exposure and Neoplasia, 188 J. A.M.A. 22, 25 (1964)). "Mesothelioma is a type of cancer... that affects the mesothelial cells that make up the pleural, pericardial, and peritoneal membranes enclosing the lungs, heart, and abdomen, respectively." T. WiLLGING, supra note 2, at 5 n.9 (citing B. CASTLEMAN, AS. BESTOS: MEDICAL AND LEGAL ASPEc'rs 302 (2d ed. 1986). Asbestos exposure is associated with lung and gastrointestinal cancer. T. WILLGING, supra note 2, at 5. Carcinoma of the esophagus, larynx, stomach, rectum, and colon are suspected to be caused by exposure to asbestos. 5A LAWYERS' MEDICAL CYCLOPEDIA 33.54, at 67 (3d ed & Supp. 1988). 6. T. WILLGING, supra note 2, at 5-6. Latency period refers to the period between exposure to asbestos and manifestation of the disease. Id. at Id. 8. Id. The latency period varies according to the age of the worker and the level of exposure. Id. at 6 n.11. Mesothelioma has been observed with increasing frequency
2 CREIGHTON LAW REVIEW [Vol. 24 Mesothelioma has a latency period of at least twenty years after exposure to asbestos. 9 Lung cancer caused by asbestos exposure has a latency period of fifteen to thirty-five years. 10 The lengthy latency periods associated with asbestos-related diseases have caused various problems for the legal system." The most prevalent of these problems is the conflict that arises between the policy goals of statutes of repose 12 and the policy goals of recovery.' 3 The analysis contained in this Comment is two-fold. First is a discussion of the legal and social issues raised by the application of statutes of repose to causes of action concerning asbestos-related diseases. 14 Second is an examination of the states in the United States Court of Appeals for the Eighth Circuit and how they have addressed the increasing number of plaintiffs seeking compensation for asbestos-related injuries. 15 THE DISTINCTION BETWEEN STATUTES OF REPOSE AND STATUTES OF LIMITATIONS The phrase "statutes of repose" has no standard definition and has been used inconsistently by courts.' 6 However, the phrase is in those workers who have survived an average of thirty-five years after their exposure to asbestos. 5A LAWYERS' MEDICAL CYCLOPEDIA, at 72. Very few workers live longer than two years after being diagnosed with mesothelioma. Id. at Classen, 30 How. L.J. at 5. Mesothelioma is almost always fatal and, unlike asbestosis, may be contracted after only a single exposure to asbestos. Id. 10. T. WILLGING, supra note 2, at 6. For workers suffering from asbestosis, the average latency period is twenty-five years from exposure to development of lung cancer. Many die from asbestosis before any type of cancer manifests itself. Id. 11. Id. The lengthy latency period associated with asbestos-related diseases makes it difficult for the injured person to prove factual causation. All exposures to asbestos are relevant because no one exposure results in asbestosis. The latency period also prevents epidemiological evidence from being developed and, as a result, eliminates a needed element of proof in the plaintiff's burden of medical causation. Id. at See irfra notes and accompanying text. See also Comment, Occupational Carcinogenesis and Statutes of Limitation: Resolving Relevant Policy Goals, 10 ENVTL. L. 113, 117 (1979). One purpose of a statute of repose is to establish a date after which a lawsuit cannot be maintained. McGovern, The Status of Statutes of Limitations and Statutes of Repose in Product Liability Actions" Present and Future, 16 Fo. RUM 416, 419 (1981). 13. See infra notes and accompanying text. The purpose of tort actions is to impose liability upon the defendant who caused the plaintiff's injuries. Comment, 10 ENvTL. L. at See infra notes and accompanying text. 15. See infra notes and accompanying text. 16. Note, Product Liability Statutes of Repose As Conflicting with State Constitutions: The Plaintiffs Are Winning, 26 ARiz. L. REv. 363, 365 (1984). The terms "statutes of repose" and "statutes of limitations" are often used interchangeably. School Bd. of Norfolk v. United States Gypsum Co., 234 Va. 32, -, 360 S.E.2d 325, 327 (1987). The terms "statutes of repose" and "statutes of limitations" refer to two distinct types of statutes which differ in concept, function and definition. Id. at -, 360 S.E.2d at 327.
3 19911 STATUTES OF REPOSE generally understood to refer to statutes which limit the liability of potential defendants by circumscribing the time in which a cause of action may be sustained. 17 Older case-law and treatises use the phrases "statutes of repose" and "statutes of limitations" interchangeably.' 8 Today, judges are forced to make distinctions between the two types of statutes because, unlike statutes of limitation, statutes of repose may affect many areas of the law. 19 One distinction between statutes of limitation and statutes of repose is that the phrase "repose" refers to the purpose of the statute while the phrase "limitation" refers to the kind of statute. 2 Statutes of repose are partly substantive in nature, defining rights by extinguishing claims which accrue after the expiration of the statutory period. 21 A products liability statute of repose limits the potential liability of a manufacturer by limiting the time in which an action can be commenced. 22 A statute of repose can operate to bar causes of action before they even accrue23 Statutes of repose extinguish a cause of action after a certain time period, which is measured either from the delivery of the product or the completion of the project. 24 The statute operates regardless of when the cause of action accrues 25 or regardless of when notice that a legal right has been invaded is given. 26 Statutes of repose extinguish the legal remedy and all causes of action which have accrued in the past, as well as those causes of action which may accrue in the future. 27 Statutes of repose have been said to represent: legislative decisions that "as a matter of policy there should be a specific time beyond which a defendant should no Because of the inconsistent use of the terms "statutes of repose" and "statutes of limitation," several courts and commentators refer to "statutes of repose" as "statutes of limitations." In this Comment, I will refer to these statutes as statutes of repose. 17. BLACK's LAW DICTIONARY 1411 (6th ed. 1990). Statutes of repose are distinguishable from statutes of limitation in that the latter merely cut off the right to maintain a cause of action after accrual of the action. Id. 18. McGovern, The Status of Statutes of Limitations and Statutes of Repose in Product Liability Actions: Present and Future, 16 FORUM 416, 417 (1981). 19. Miers v. Central Mine Equip. Co., 604 F. Supp. 502, 505 n.3 (D. Neb. 1985). 20. McGovern, 16 FORUM at Note, 26 Amiz. L. REv. at Kline v. J.I. Case Co., 520 F. Supp. 564, 566 (N.D. I ). 23. Rittenhouse v. Tabor Grain Co., 203 M1. App. 3d 639, -, 561 N.E.2d 264, 273 (1990)(quoting Thornton v. Mono Mfg. Co., 99 Ill. App. 3d 722, 726, 425 N.E.2d 522, 525 (1981)). 24. BLAcK'S LAw DICTIONARY 1411 (6th ed. 1990). 25. A cause of action "accrues" when all the elements of the cause of action are in place so that the injured party can maintain a suit thereon. BLACK'S LAw DIcrIONARY at 21. The date of accrual is the date at which the injured party's rights vest and become present rights or demands. Id. 26. Id. at United States Gypsum Co., 234 Va. at -, 360 S.E.2d at
4 CREIGHTON LAW REVIEW [VCol. 24 longer be subjected to protracted liability. Thus a 'statute of repose' is intended as a substantive definition of rights as distinguished from a procedural limitation on the remedy used to enforce rights. ' 2 In contrast, statutes of limitation prescribe a time frame within which an accrued cause of action must be brought.- 9 A statute of limitations is primarily procedural in nature s and only extinguishes the right to maintain an accrued cause of action. 3 ' The statute does not extinguish the substantive right itself. 3 2 Statutes of limitation represent the desire of legislatures and courts to eliminate stale claims. 33 Any repose conferred upon a defendant by a statute of limitation is merely an incidental benefit.1 Statutes of limitations are designed to promote justice by precluding the revival of stale claims. 3 5 The theory underlying statutes of limitations is that "even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." '' THE OPERATION OF STATUTES OF REPOSE IN LATENT DISEASE CASES Various possibilities exist for determining when an injury occurs in latent disease cases for statutes of repose purposes s17 Twelve jurisdictions have enacted statutes that establish the date of accrual expressly for asbestos-related injuries.-8 Seven states have statutes of 28. Id. at -, 360 S.E.2d at 328 (quoting Stevenson, Products Liability and the Virginia Statute of Limitations - A Call for the Legislative Rescue Squad, 16 U. RICH. L. REV. 323, 334 n.38 (1982)). 29. Rittenhouse, 203 M1. App. at -, 561 N.E.2d at 273; Universal Eng'g Corp. v. Perez, 451 So. 2d 463, 465 (Fla. 1984). 30. Rittenhouse, 203 Ill. App. 3d at -, 561 N.E.2d at Mine, 520 F. Supp. at Fenton v. Citizens Say. Assoc., 400 F. Supp. 874, 879 n.6 (C.D. Mo. 1975). 33. Goad v. Celotex Corp., 831 F.2d 508, 510 (4th Cir. 1987). 34. Id. at Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, (1944). 36. Id. at Birnbaum, "First Breath's" Last Gasp: The Discovery Rule in Products Liability Cases, 13 FORUM 279, 281 (1977). The terms "statutes of repose" and "statutes of limitations" are used inconsistently by courts and commentators. See supra note 16 and accompanying text. 38. See ALA. CODE (b) (Supp. 1990) (stating that an action accrues on the date the injured party first discovers, or reasonably should have discovered, the injury); CAL. Civ. PROC. CODE (West Supp. 1990) (declaring that an action accrues on the later of either the date the plaintiff first suffers injury or the date when the plaintiff knows, or in the "exercise of reasonable diligence should have known," that his injury was caused by exposure to asbestos); CONN. GEN. STAT. ANN a(e)
5 1991] STATUTES OF REPOSE repose which do not accrue until the injured person discovers, or in the exercise of reasonable diligence should have discovered, his injury. 39 Two states have statutes of repose which do not apply if the injury was not discoverable or did not manifest itself within the ten year period of repose. 4 Because the date of accrual is not defined in (West Supp. 1990) (stating that the ten year limitation does not apply to actions involving exposure to asbestos; however, no action may be sustained more than thirty years from date of last exposure to asbestos); D.C. CODE ANN (Supp. 1990) (declaring that an action accrues on the later of either the date the plaintiff first suffers injury or the date when the plaintiff knows, or in the "exercise of reasonable diligence should have known," that his injury was caused by exposure to asbestos); IND. CODE ANN (Burns Supp. 1990) (stating that an action accrues on date that it is known by the injured person that he has an asbestos-related injury or disease); MIss. CODE ANN (2) (Supp. 1990) (declaring that a cause of action for latent injury or disease does not accrue until plaintiff discovers, or in the exercise of "reasonable diligence should have discovered," the injury); NEB. REv. STAT (5) (Reissue 1985) (stating that a cause of action accrues when injured person is informed by competent medical authority of discovery of the injury and that the injury resulted from exposure to asbestos or when facts which would lead to such discovery are known, whichever is earlier); N.D. CENT. CODE (4) (Supp. 1989) (declaring that a cause of action accrues when injured person is informed by competent medical authority of discovery of the injury and that the injury resulted from exposure to asbestos or when facts which would lead to such discovery are known, whichever is earlier); OHio REV. CODE ANN (Baldwin 1990) (stating that a cause of action accrues when injured person is informed of his injury by competent medical authority and that the injury was caused by exposure to asbestos or when he should have discovered his injury, whichever occurs earlier); OR. REv. STAT (1989) (declaring that a cause of action accrues on date plaintiff discovers, or in the "exercise of reasonable care should have discovered," the disease and its cause); TENN. CODE ANN (b) (Supp. 1990) (stating that the limitations of actions does not apply to actions resulting from asbestos exposure); VA. CODE ANN (4) (Supp. 1990) (declaring that an action accrues when the injured person is first informed by a physician of his asbestosrelated injury). 39. See COLO. REV. STAT (8) (Supp. 1990) (stating that a cause of action accrues on the date both the injury and its cause are "discovered or should have been discovered by the exercise of reasonable diligence"); N.H. REv. STAT. ANN. 507-D:2 (Supp. 1989) (declaring that an action accrues on the date the injury is discovered, or "in the exercise of reasonable diligence, [should] have been discovered by the plaintiff"); N.C. GEN. STAT. 1-52(16) (Supp. 1990) (stating that an action accrues when the injury "becomes apparent or ought reasonably to have become apparent to the claimant"); S.D. CODIFIED LAWS ANN (Supp. 1990) (declaring that an action accrues on the date the injury occurred, or when the injured party discovers, or reasonably should have discovered, his injury); UTAH CODE ANN (Supp. 1990) (stating that an action accrues when the plaintiff discovers, "or in the exercise of due diligence should have discovered, both the harm and its cause"); VT. STAT. ANN. tit. 12, 512(4) (Supp. 1990) (declaring that a cause of action accrues on the date the injury is discovered); WASH. REV. CODE ANN (3) (Supp. 1990) (stating that an action accrues when the plaintiff discovers "or in the exercise of due diligence should have discovered the harm and its cause"). 40. See IDAHO CODE (4) (Supp. 1990); KAN. STAT. ANN (2)(D) (Supp. 1989). The Kansas statute provides that the ten year period of repose does not apply if the injury-causing aspect of the product that existed at the time of delivery was not discoverable by an ordinary reasonably prudent person until more than ten (10) years after the time of delivery, or if the harm, caused within
6 CREIGHTON LAW REVIEW [Vol. 24 the statutes of repose of most states, the date of accrual has been determined judicially. 41 Three different approaches have been applied by the courts of various jurisdictions to determine the accrual date for asbestos-related injuries: the first breath rule;2 the last breath rule; 43 and the discovery rule." THE FIRST BREATH RULE Under the first breath rule, a cause of action accrues on the date of the plaintiff's first exposure to or inhalation of the hazardous substance. 45 Under this rule, the ignorance of the injured party that a cause of action has accrued in his favor does not toll the statute of limitations.a In Scott v. Rinehart & Dennis Co., 47 the plaintiff Scott contracted silicosis while building a tunnel for the defendant.48 Scott commenced his action three years after he had begun working for the company. 4 9 Scott alleged that he had commenced his action immediten (10) years after the time of delivery, did not manifest itself until after that time. KAN. STAT. ANN (2)(D) (Supp. 1989). 41. See, e.g., Pierce v. Johns-Manville Sales Corp., 296 Md. 656, -, 464 A.2d 1020, 1025 (1983) (noting that cause of action accrues when claimant discovered or reasonably should have discovered the nature and cause of injury); Karjala v. Johns-Manville Prods. Corp., 523 F.2d 155, 161 (8th Cir. 1975) (holding that cause of action accrues when injury manifests itself); Louisville Trust Co. v. Johns-Manville Prods. Corp., 580 S.W.2d 497, 501 (Ky. 1979) (holding that cause of action accrues when plaintiff knew or reasonably should have known of both the injury and the fact that defendant may have caused it). But see Olson v. Owens-Corning Fiberglas Corp., 198 Ill. App. 3d 1039, -, 556 N.E.2d 716, 719 (1990) (refusing to carve an exception out of the Illinois statute of repose for asbestos victims). 42. See, e.g., Bassham v. Owens-Coming Fiber Glass Corp., 327 F. Supp. 1007, 1008 (D. N.M. 1971). See infra notes and accompanying text. 43. See, e.g., Chase v. Cassiar Mining Corp., 622 F. Supp. 1027, 1028 (N.D.N.Y. 1985). See infra notes and accompanying text. 44. See, e.g., Karjala, 523 F.2d at 161; Woessner v. Johns-Manville Sales Corp., 576 F. Supp. 596, (E.D. La. 1984); Reimer v. Owens-Corning Fiberglass Corp., 576 F. Supp 197, (E.D. Wis. 1983); Pauley v. Combustion Eng'g, Inc., 528 F. Supp. 759, 765 (S.D. W.Va. 1981); Strickland v. Johns-Manville Int'l Corp., 461 F. Supp. 215, 218 (S.D. Tex. 1978); Burns v. Jaquays Mining Corp., 156 Ariz. 375, 752 P.2d 28 (1989); Sheppard v. A.C. & S. Co., 498 A.2d 1126, 1130 (Del. Super. Ct. 1985); Copeland v. Armstrong Cork Co., 447 So. 2d 922, 926 (Fla. Dist. Ct. App. 1984); Louisville Trust Co., 580 S.W.2d at 501; Bernier v. Raymark Indus., Inc., 516 A.2d 534, 543 (Me. 1986); Harig v. Johns-Manville Prods. Corp., 284 Md. 70, -, 394 A.2d 299, 306 (1978); Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 436 (Mo. 1984); Cathcart v. Keene Indus. Insulation, 324 Pa. Super. 123, -, 471 A.2d 493, 500 (1984). See ifra notes and accompanying text. 45. Scott v. Rinehart & Dennis Co., 116 W. Va. 319, -, 180 S.E. 276, 277 (1935). 46. Id. at -, 180 S.E.2d at W. Va. 319, 180 S.E. 276 (1935). 48. Id. at -, 180 S.E. at Id. at -, 180 S.E. at 276. The applicable statute of limitations at the time the case was decided stated that all actions like that of the plaintiff's had to be commenced within "one year next after the right to bring the same shall have accrued, and not after." Id. at -, 180 S.E. at 276 (citing W. VA. CODE (1931)).
7 1991] STATUTES OF REPOSE ately after discovering that he had contracted silicosis. 5 The company alleged that Scott's cause of action was barred by the applicable statute of limitations. 5 ' A West Virginia circuit court overruled Scott's demurrer to the company's statute of limitations defense and certified the rulings to the Supreme Court of Appeals of West Virginia. 52 In applying the first breath rule to Scott's case, the Supreme Court of Appeals of West Virginia stated that "'[t]he true inquiry, therefore, at law, is, when did the cause of action arise, and not when did knowledge of that fact come to the plaintiff.'-53 The court rejected Scott's argument that the court should change the construction of the statute under the "dictates of humanity." 54 The court responded that a change in the construction of the statute was a matter for the legislature and affirmed the rulings of the circuit court. 55 In 1981, the United States District Court for the District of West Virginia declined to follow Scott and instead adopted the discovery rule in cases involving asbestos-related injuries. 56 The court noted the inequities of requiring a plaintiff suffering from an asbestos-related disease to commence his cause of action before he has had the opportunity to discover his injury. 57 The only state that continues to adhere to the first breath rule in cases involving exposure to asbestos is New Mexico. 58 In Bassham v. Owens-Corning Fiber Glass Corp., 59 an insulation worker, who had contracted asbestosis, brought an action against the manufacturer, 50. Scott, 116 W. Va. at -, 180 S.E. at Id. at -, 180 S.E. at Id. at -, 180 S.E. at Id. at-, 180 S.E. at 277 (quoting Fee v. Fee, 10 Ohio 469, 475, 36 Am. Dec. 103, 106, 107 (1841)). 54. Scott, 116 W. Va. at -, 180 S.E. at Id. at -, 180 S.E. at Pauley, 528 F. Supp. at The district court stated that it was not bound to follow Scott under the Erie doctrine if it appeared that the highest court in West Virginia would not follow it. Id. at 761. See also Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The court determined that the Supreme Court of Appeals of West Virginia would not follow Scott in the instant case. Pauley, 528 F. Supp. at Pauley, 528 F. Supp. at See Baswham, 327 F. Supp. at A recent law review article states that New York adheres to the first breath rule. Note, Civil Procedure - Limitations of Actions - Discovery Rule - Creeping Disease - Asbestosis, 25 DuQ. L. REv. 1097, 1106 (1987). However, a close examination of New York case-law reveals that New York has never adhered to the first breath rule in latent disease cases. See Ward v. Desachem Co., 771 F.2d 663, 666 (2nd Cir. 1985); Chase, 622 F. Supp. at 1028; Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, -, 430 N.E.2d 1297, , 446 N.Y.S.2d 244, (1981). The New York Court of Appeals has repeatedly held that in cases involving the ingestion, inhalation, or injection of hazardous substances the statute of limitations begins to run from the date of the injured person's last exposure to the hazardous substance. Ward, 771 F.2d at F. Supp (D.N.M. 1971).
8 CREIGHTON LAW REVIEW [Vol. 24 whose products he had been exposed to for twenty years. 6 Although the United States District Court for the District of New Mexico did not reach the issue of whether the action was barred by the statute of limitations, the court stated that the case of Roybal v. White 8 ' was controlling on the issue. 62 In Roybal, a medical malpractice case, the Supreme Court of New Mexico held that medical malpractice actions accrued at the time of the wrongdoing and not at the time of the discovery of the injury. 63 The court in Bassham stated that the Roybal decision governed personal injury suits and held that the statute of limitations barred actions based on exposure to asbestos occurring more than three years prior to the filing of the action.6 4 THE LAST BREATH RULE The last breath rule treats the plaintiff's exposure to asbestos as a tort that is continuing in nature. 6 5 As a result, the limitations period begins to run on the date of the plaintiff's last exposure to asbestos. 66 In Chase v. Cassiar Mining Corp.,67 the United States District Court for the Northern District of New York applied the last breath rule to determine the date of accrual in an asbestos case. 6 s The court held that the plaintiff had only three years after his last exposure to asbestos to commence his action. 69 Under New York law, as long as a plaintiff sustains an injury and commences his action within the three year statutory period, he "may recover for any cumulative effect on such injuries that may have resulted from inhalations occurring prior to the three-year period. '70 The New York statute of limitations begins to run on the date of the last exposure to the hazardous substance in all cases involving the inhalation, injec- 60. Id. at N.M. 285, 383 P.2d 250 (1963). 62. Bassham, 327 F. Supp. at Roybal, 72 N.M. at -, 383 P.2d at Bassham, 327 F. Supp. at The applicable statute at the time this case was decided was N.M. STAT. ANN (1953), which provided a three year limitation period. 65. Note, Civil Procedure - Limitations of Actions - Discovery Rule - Creeping Disease - Asbestosis, 25 DuQ. L. REv. 1097, 1107 (1987). 66. Id F. Supp (N.D.N.Y. 1985). 68. Id. at "In an 'asbestos case' the action accrues on the date of last exposure." Id. (citing Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 430 N.E.2d 1297, 446 N.Y.S.2d 244 (1981), cert denied, 456 U.S. 967 (1982)). 69. Chase, 622 F. Supp. at The New York statute of limitations for personal injury actions was three years at the time this case was decided. N.Y. CIV. PRAC. L. & R. 214(5) (McKinney 1972 & Supp ). 70. Ward v. Desachem Co., 771 F.2d 663, 667 (2d Cir. 1985).
9 1991] STATUTES OF REPOSE tion or ingestion of harmful substances. 71 This rule of accrual is applied in these types of cases regardless of the date on which the injured party actually discovered his injury. 72 According to the United States District Court, the New York legislature had not intended to deny recovery to victims of exposure to asbestos when it adopted the last breath rule. 73 However, the court did recognize that the last breath rule has been characterized as a very harsh rule for victims of asbestos-related injuries. 74 Three jurisdictions have abandoned the last breath rule in favor of the discovery rule for latent disease cases. 75 For example, the state of Kentucky formerly adhered to the last breath rule, but abandoned it in favor of the discovery rule. 76 Prior to the case of Louisville Trust Co. v. Johns-Manville Products Corp., 77 the Supreme Court of Kentucky had held that a cause of action for exposure to silica dust accrued on the date that the employee was last exposed to the dangerous substance. 78 In Louisville Trust Co., the Supreme Court of Kentucky refused to follow its previous decision because the application of the last breath rule was not in accord with the United States Supreme Court decision of Urie v. Thompson. 79 THE DISCOVERY RULE Recently, courts have recognized the inequities of applying statutes of repose to latent disease cases.s Under the discovery rule, a cause of action accrues when the injured party discovers, or in the exercise of reasonable diligence should have discovered, that he has 71. Id. at 666 (quoting Martin v. Edwards Laboratories, 60 N.Y.2d 417, 426, 457 N.E.2d 1150, 1154, 469 N.Y.S.2d 923, 927 (1983)). 72. Ward, 771 F.2d at Chase, 622 F. Supp. at Id. at ALA. CODE (b) (Supp. 1990) (adopting the discovery rule for causes of action involving exposure to asbestos). Alabama previously adhered to the last breath rule in asbestos cases. See Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263 (Ala. 1981). IND. CODE ANN (Burns Supp. 1990) (adopting the discovery rule for causes of action involving asbestos-related injuries). The date of accrual in asbestos cases arising in Indiana used to be the date of the last exposure to the asbestos. See Braswell v. Flintkote Mines, Ltd., 723 F.2d 527 (7th Cir. 1983). See also Louisville Trust Co., 580 S.W.2d at (extending the discovery rule to latent disease cases in Kentucky). Kentucky previously adhered to the last breath rule in latent disease cases. See Columbus Mining Co. v. Walker, 271 S.W.2d 276 (Ky. 1954). 76. Louisville Trust Co., 580 S.W.2d at S.W.2d 497 (Ky. 1979). 78. See Columbus Mining Co., 271 S.W.2d at Louisville Trust Co., 580 S.W.2d at 499. See Urie v. Thompson, 337 U.S. 163 (1949) (holding that cause of action accrues when the plaintiff knew or should have known that defendant's conduct had injured him). See infra notes and accompanying text. 80. Birnbaum, 13 FoRUM at 285.
10 CREIGHTON LAW REVIEW [Vol. 24 been injured. 8 ' The present trend in most jurisdictions in products liability cases involving chemicals, drugs and asbestos is to apply a variation of the discovery rule. 82 The adoption of the discovery rule in latent disease cases corresponds with the concern "that the injured party should be allowed to have his day in court when his injury was of an inherently unknowable nature." ' s The discovery rule has several variations; for example, there are four different time periods which a court could adopt to determine the date of accrual for statute of repose purposes:8 4 (1) when the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, not only his injury, but that the defendant caused his injury; s 5 (2) when the plaintiff knows, or in the exercise of reasonable diligence should know, that he has been injured and that his injury may have been caused by the conduct of another; s6 (3) when the plaintiff knows, or by the exercise of reasonable diligence should know, that he has asbestosis; 8 7 and (4) when the disease manifests itself.8 s An examination of specific case-law examples best illustrates the nuances of the discovery rule. 8 9 DISCOVERY OF INJURY AND ITS ExAcT CAUSE Under one variation of the discovery rule, a plaintiff's cause of action accrues when he knows, or in the exercise of reasonable diligence should have known, of his injury and that the defendant caused the injury. 9 In Pauley v. Combustion Engineering, Inc., 91 the United States District Court for the District of West Virginia adopted the discovery rule in a claim for injuries resulting from exposure to asbestos. 92 Pauley, an insulator, had worked for Union Carbide for thirty years; during this time he used products manufactured by Combustion Engineering, Inc.("Company"). 93 In 1973, Pauley was diagnosed with "occupational pneumoconiosis and/or silicosis." 94 In 81. See supra note Birnbaum, 13 FoRuM at 285. See Pauley, 528 F. Supp. at Birnbaum, 13 FORuM at Pauley, 528 F. Supp. at See Pauley, 528 F. Supp. at 764; Harig, 284 Md. at -, 394 A.2d at See Louisville Trust Co., 580 S.W.2d at 501; Cathcart, 324 Pa. Super. at -, 471 A.2d at Strickland, 461 F. Supp. at 218; Elmore, 673 S.W.2d at Kariala, 523 F.2d at 160; Woesner, 576 F. Supp. at ; Sheppard, 498 A.2d at 1133; Bernier, 516 A.2d at See infra notes and accompanying text. 90. Pauley, 528 F. Supp. at F. Supp. 759 (S.D. W. Va. 1981). 92. Id. at Id. at Id. at 761.