Maltby v. Gauthier ( 1986 )

BOWES, Judge,

dissenting.

I respectfully dissent from the majority opinion for the reasons I expressed in McBride v. Earl K. Long Memorial Hospital, 459 So.2d 602 (La.App. 5th Cir.1984). Considering the usually insidious nature of developing illness or disease, R.S. 9:5628 does not provide a reasonable period of time for a plaintiff to assert a claim which may have existed prior to the enactment of the statute. Retroactive application of the law, then, operates to eliminate a cause of action which has already vested and such application is violative of constitutional prohibitions against divesting a pre-existing right. See Lott v. Haley, 370 So.2d 521 (La.1979). I do not agree that such was the intent of the legislature in enacting the statute. Therefore, I respectfully dissent.