Asbestos Statute of Limitation Issues
On Tuesday, September 15, 1998, the First Appellate District Court of Appeal, ruling in the San Francisco asbestos case of Richmond v. A.P. Green (98 C.D.O.S. 7220), held that a plaintiff who previously had pursued a lawsuit claiming damages for asbestosis subsequently could maintain a lawsuit for mesothelioma, even though both the asbestosis and the mesothelioma were caused the same exposures to asbestos-containing products, and even though the mesothelioma lawsuit was brought more than one year after the asbestosis lawsuit. The same issue is currently before the California Supreme Court in the case of Mitchell v. Asbestos Corp. (73 Cal.Rptr.2d 11, review granted June 17, 1998). Mitchell involves a Solano County asbestos case, in which that Court of Appeal held exactly the opposite: since the asbestosis and the lung cancer arose from the same exposures to asbestos-containing materials, the filing of the lawsuit for asbestosis commenced running of the statute of limitation for any other asbestos related injury, including lung cancer or mesothelioma.
The Richmond case is especially interesting for two reasons: first, because it provides a reasoned legal basis for balancing several competing public policies as a justification for not following the single action rule which prohibits splitting causes of action (which was the basis of the Mitchell decision); and second, because the Court describes both a Delaware case, which held that bilateral pleural thickening was a separate and distinct disease from asbestosis and would permit a plaintiff a separate cause of action with a separate statute of limitation for each asbestos-related disease, and a Pennsylvania decision which drew a bright line between non-malignant asbestos related lung diseases and cancer. The Court of Appeal, in effect, offered the Supreme Court three alternatives: treating all asbestos-related diseases as a single cause of action, as in Mitchell; dividing them into two causes of action, malignant and non-malignant; or multiple causes of action with a separate claim and statute of limitation permitted for each asbestos related disease.
The Richmond case itself involves a first lawsuit for asbestosis and a second lawsuit for cancer, so the question of other asbestos-related diseases is not at issue. However, the Richmond Court's citation and description of the two foreign cases offers the California Supreme Court the opportunity to write its reasoning in a way which covers the multiple disease issue, one way or the other, and raises the specter of multiple causes of action for diseases which are barely distinguishable.
Single Action Rule: The Richmond case specifically discusses the dilemma faced by a plaintiff or plaintiffs' attorney with the plaintiff currently suffering from a non-malignant, asbestos-related disease. He does not know whether or not he will subsequently suffer from cancer, since the statistical probability is small, but the injuries suffered and potential damages to be collected could be relatively large.
"If the single action rule is strictly enforced against the person who is suffering only from asbestosis, he is confronted with a Hobson's choice. He can bring an action seeking compensation for his asbestosis, gambling that he will not contract a malignant disease in the future or, more morbidly, that if he does the malignancy will occur within the five years allowed to bring an action to trial. Alternatively, he can forgo an action for a certain and disabling present asbestosis injuries, even though compensation would alleviate attendant medical expenses and other related losses, out of fear that his fear for such compensation will be greater if and when he develops one of the more disabling malignancies."
In Mitchell, the Solano County Superior Court had enacted a General Order prohibiting plaintiffs and their witnesses from seeking, arguing or even mentioning cancer or fear of cancer in a non-cancer case, on the grounds that any such claim or damages were too remote and speculative to support a judgment, and specifically allowing plaintiffs who had sued for a non-malignant disease and were not compensated for fear of cancer or the possibility of subsequently suffering from cancer, to subsequently bring a separate lawsuit for a malignant disease if and when such a malignant disease were suffered. San Francisco and Alameda Counties have similar general orders. The Richmond case makes no mention of the San Francisco General Order.
The Mitchell Court felt that the Superior Court's jurisdiction to enact general orders to administer its courts did not extend to revising the statute of limitation or creating an exception to the single action rule.
In order to avoid the single action rule, the Richmond court first identified the public policy to be effectuated by CCP 340.2, the asbestos statute of limitation,
"The declared purpose of section 340.2 is to afford victims of asbestos exposure the opportunity to seek compensation for injuries which are manifested years after the exposure. That purpose can be most fully effectuated by construing independent diseases as provoking independent causes of action, and the language of the statute does not preclude such a construction."
The Court next identified the public policy associated with the single action rule as "to protect defendants from stale claims, to require plaintiffs to pursue their claims diligently, and promote judicial economy." The Court then distinguished the single action rule as applied to asbestos-related diseases:
"The rule does not contemplate the situation where injuries result from a continuous process of multiple exposures to a variety of asbestos products, manufactured or used by a range of defendants; where the exposures occurred at a series of sites; where there may be a lengthy temporal separation not only between the wrongful conduct and the resulting injuries, but between the injuries themselves; and where it is impossible to determine which exposure caused the disease or, as here, multiple diseases."
Since the subsequent disease did not exist when the first lawsuit was brought, the Court reasoned that the second lawsuit was not a stale claim and was not a failure by the plaintiff to diligently pursue its claims, since the claim for that subsequent injury did not exist. Therefore, the public policies effectuated by the single action rule would not be advanced or supported by applying the single action rule to the claim for separate diseases suffered at separate times from the same exposure to asbestos.
Finally, with respect to the public purpose of judicial economy, the Court reasoned:
"Asbestos has not been used in the marketplace for some time and the average age of workers exposed to asbestos is rapidly increasing, thereby resulting in a diminishing number of new filings. In addition, most cases result in settlements, and virtually all the asbestos releases we see, including those in the present record, contain waivers of any further claims against the defendant, not only for malignant diseases, but also releases from the plaintiffs' spouses for wrongful of death and loss of present and future consortium, thus protecting defendants from future litigation."
The appellate court's reasoning, balancing competing public policies, is a subterfuge for ignoring the single action rule. There is no California judicial precedent that allows the court to create separate lawsuits for separate injuries suffered as a result of a defendant's single wrongful act. The legislature and the Supreme Court have the power to create such a new judicial doctrine. If the Supreme Court chooses to uphold Richmond and reverse Mitchell, that is what they will be doing, creating new law.
Two Diseases v. Multiple Disease: As discussed above, the Delaware case distinguished bilateral pleural thickening from asbestosis, holding that the statue of limitation for the former had expired, but that the claim for asbestosis was a separate claim with a separate statute of limitation which had not expired. In a living patient, pleural thickening, pleural thickening with pleural plaques, and asbestosis are diagnosed by interpreting fuzzy images on x-rays and high resolution CT scans. Experts disagree about what radiology shows. The Delaware concept of multiple diseases with multiple claims and multiple limitation periods, all arising from the same asbestos exposure, will expose defendants and courts to multiple lawsuits for the same injury, with the distinction amounting to nothing more than the relative persuasiveness of the opposing experts and attorneys.
The Richmond court's argument that the multiple disease concept will not cause a flood of litigation is not supported by the statistics. The court argued that the aging of the pre-OSHA construction workers exposed to asbestos would limit the number of multiple filings. Workers from the 1960's are only in their 50's and 60's. Because of the limited number of years of exposure before asbestos use was strictly limited, these are exactly the plaintiffs who will argue about pleural thickening versus asbestosis, without ever suffering from cancer. Many of those workers have not retired yet and will defer lawsuits until after retiring. Hundreds of such lawsuits can be expected for many years.
Conclusion: The Mitchell and the new Richmond decisions represent opposite opinions and conclusions regarding the application of the asbestos statute of limitation to claims for different asbestos-related diseases. If the Supreme Court is going to overturn Mitchell, Richmond may represent a preview of the kind of reasoning to which the Supreme Court will have to resort in order to avoid the statute of limitation and the single action rule against splitting claims.