Kiser v. A.W. Chesterton Co. ( 2013 )

Present: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and
Powell, JJ., and Lacy, S.J.
PHYLLIS H. KISER,
EXECUTRIX OF THE ESTATE OF
ORVIN H. KISER, SR., DECEASED
OPINION BY
v. Record No. 120698 CHIEF JUSTICE CYNTHIA D. KINSER
JANUARY 10, 2013
A.W. CHESTERTON CO., ET AL.
UPON A QUESTION OF LAW CERTIFIED BY THE
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
The United States Court of Appeals for the Third Circuit
entered an order of certification requesting that this Court
exercise jurisdiction pursuant to Article VI, Section 1 of the
Constitution of Virginia and Rule 5:40, and answer the following
question of law:
Whether, under Va. Code § 8.01-249(4), a
plaintiff's cause of action for damages due to
latent mesothelioma is deemed to accrue [I] at
the time of the mesothelioma diagnosis or [II]
decades earlier, when the plaintiff was diagnosed
with an independent, non-malignant asbestos-
related disease.
(Numeral designators added). 1
We hold that when enacting Code § 8.01-249(4), the General
Assembly did not abrogate the common law indivisible cause of
action principle and that a cause of action for personal injury
1
Code § 8.01-249(4) provides that a cause of action
for personal injury "resulting from exposure to asbestos or
products containing asbestos" accrues "when a diagnosis of
asbestosis, interstitial fibrosis, mesothelioma, or other
disabling asbestos-related injury or disease is first
communicated to the person or his agent by a physician."
based on exposure to asbestos accrues upon the first
communication of a diagnosis of an asbestos-related injury or
disease by a physician.
RELEVANT FACTS AND PRIOR PROCEEDINGS
The pertinent facts are not in dispute and are taken
from the opinion in Kiser v. A.W. Chesterton Co., 770
F. Supp. 2d 745 (E.D. Pa. 2011), and the certification order
in Kiser v. A.W. Chesterton Co., Rec. No. 11-1986 (3d Cir.
March 26, 2012). Orvin H. Kiser, Sr. worked at a "DuPont"
plant in Waynesboro, Virginia from 1957 to 1985, during
which time he was exposed to asbestos. After being
diagnosed with nonmalignant pleural thickening and
asbestosis in 1988, he filed a timely suit in the United
States District Court for the Western District of Virginia
in 1990 against numerous asbestos manufacturers, sellers,
and distributors, seeking damages for his employment-
related exposure and resulting medical condition. In 2010,
that action was voluntarily dismissed.
In November 2008, Kiser was diagnosed with
mesothelioma, an asbestos-related malignant cancer of the
lung lining. He died the following March. Acting as
executrix of her deceased husband's estate, Phyllis H.
Kiser (the Executrix), filed a wrongful death action in
October 2010 in the United States District Court for the
2
Western District of Virginia against twenty-one defendants,
none of which were parties to the first action. See Kiser,
770 F.Supp.2d at 746-47. The Executrix alleged that
Kiser's exposure to the defendants' products during his
employment at the DuPont plant caused Kiser's development
of mesothelioma and subsequent death. Id. The Judicial
Panel on Multidistrict Litigation transferred the action to
the United States District Court for the Eastern District
of Pennsylvania.
The various defendants filed motions to dismiss,
asserting that the applicable statute of limitations barred
the Executrix' action. Id. at 747. The defendants
asserted that, under the indivisible cause of action rule,
the current action accrued at the time of Kiser's diagnosis
of asbestosis and pleural thickening and that the action
was therefore barred by the two-year statute of limitations
set forth in Code § 8.01-243(A). Id. The Executrix,
however, maintained that Code § 8.01-249(4) "abolished the
indivisible cause of action theory and that a new statute
of limitations was triggered when . . . Kiser was diagnosed
with mesothelioma" in 2008. Id.
Citing Virginia case law that recognized the
indivisible cause of action principle, the district court
held that Code § 8.01-249(4) instituted a discovery rule
3
for the accrual of asbestos-related causes of action but
did not supplant the indivisible cause of action rule with
a "separate disease rule." Id. at 749-50. According to
the district court, "Virginia adheres to the indivisible
cause of action theory and the statute of limitations for
all asbestos-related claims begins to run on the initial
date of diagnosis by a physician of any asbestos-related
disease." Id. at 751. The district court therefore
dismissed the action as barred by the statute of
limitations. Id.
The Executrix appealed to the United States Court of
Appeals for the Third Circuit. In its certification order,
the Third Circuit stated that the timeliness of the
Executrix' cause of action "turn[ed] on an unresolved
question of Virginia law: whether the indivisible cause of
action theory applies to distinct and independent asbestos-
related diseases stemming from the same exposure to
asbestos." While the Third Circuit recognized Virginia's
adherence to the indivisible cause of action rule in
personal injury cases, it noted the absence of a ruling
from this Court regarding the application of that principle
to asbestos-exposure cases after the enactment of Code
§ 8.01-249(4).
4
Rule 5:40(a) requires that a certified question be
"determinative" in "any proceeding pending before the
certifying court." The certified question is determinative
because whether the Executrix' wrongful death action is
time-barred turns on whether the action accrued at the time
of Kiser's asbestosis diagnosis or at the time of his
mesothelioma diagnosis. Accordingly, we accepted the
certified question of law by order entered June 8, 2012.
ANALYSIS
The certified question focuses specifically on Code § 8.01-
249(4) and asks when, pursuant to that statute, "a plaintiff's
cause of action for damages due to latent mesothelioma is deemed
to accrue." To answer that question and to understand the scope
and purpose of Code § 8.01-249(4), it is instructive to review
first the law in effect in 1985 when the General Assembly
enacted subsection 4. Prior to 1985, two distinct, relevant
principles existed in the Commonwealth with respect to personal
injury actions based on exposure to asbestos. First, the
accrual of a cause of action for such injury was governed by
Code § 8.01-230, which at that time provided: "In every action
for which a limitation period is prescribed, the cause of action
shall be deemed to accrue and the prescribed limitation period
shall begin to run from the date the injury is sustained in the
5
case of injury to the person." 2 Former Code § 8.01-230 (Repl.
vol. 1984) (emphasis added). Construing the "statutory word
'injury' to mean positive, physical or mental hurt to the
claimant, not legal wrong to him," we tied the running of the
statute of limitations "to the fact of harm to the plaintiff,
without which no cause of action would come into existence." 3
Locke v. Johns-Manville Corp., 221 Va. 951, 957-58, 275 S.E.2d
900, 905 (1981). Because a cause of action does not arise until
an injury to a plaintiff can be shown, see Louisville &
Nashville Railroad Co. v. Saltzer, 151 Va. 165, 170-71, 144 S.E.
456, 457 (1928), the relevant question for purposes of the
statute of limitations was: "When was the plaintiff hurt?"
Locke, 221 Va. at 958, 275 S.E.2d at 905.
2
In 1996, the General Assembly changed the phrase "cause of
action" to the phrase "right of action." See 1996 Acts ch. 328.
However, Code § 8.01-249 continues to employ the phrase "cause
of action." The phrases "cause of action" and "right of action"
are not synonymous. See Van Dam v. Gay, 280 Va. 457, 460, 699
S.E.2d 480, 481 (2010). When interpreting and applying a
statute, we "assume that the General Assembly chose, with care,
the words it used in enacting the statute, and we are bound by
those words." Halifax Corp. v. First Union Nat'l Bank, 262 Va.
91, 100, 546 S.E.2d 696, 702 (2001).
3
The essential elements of a good cause of action,
whether based on an alleged breach of contract or on a
tortious act, are a legal obligation of a defendant to the
plaintiff, a violation or breach of that right or duty, and
a consequential injury or damage to the plaintiff. In the
absence of injury or damage to a plaintiff or his property,
he has no cause of action and no right of action can accrue
to him.
Caudill v. Wise Rambler, Inc., 210 Va. 11, 13, 168 S.E.2d 257,
259 (1969).
6
In a cause of action for exposure to asbestos resulting in
mesothelioma, the answer to that question depended on competent
medical evidence pinpointing the precise date the cancer first
existed, which would be the first date it was capable of causing
injury. Id. at 959, 275 S.E.2d at 905. That determination,
however, was not tantamount to employing a "discovery rule,
which triggers the running of the statute only when the injury
is discovered or should have been discovered in the exercise of
reasonable diligence." Id. As the Court recognized, the
adoption of such a rule was a decision for the General Assembly
to make. Id. at 959, 275 S.E.2d at 905-06.
In 1985, the General Assembly did just that by adding
subsection 4 to Code § 8.01-249, which contains exceptions to
the accrual rule set forth in Code § 8.01-230 for certain causes
of action. 1985 Acts ch. 459. Code § 8.01-249(4) states:
The cause of action in the actions herein listed
shall be deemed to accrue as follows:
. . . .
4. In actions for injury to the person
resulting from exposure to asbestos or products
containing asbestos, when a diagnosis of
asbestosis, interstitial fibrosis, mesothelioma,
or other disabling asbestos-related injury or
disease is first communicated to the person or
his agent by a physician. However, no such action
may be brought more than two years after the
death of such person[.]
7
With the enactment of subsection 4, the question asked in Locke,
when was a plaintiff hurt by exposure to asbestos, was no longer
relevant to determining the accrual date of that particular
cause of action. Instead, the cause of action accrued, and thus
the statute of limitations began to run, when a physician first
communicated a diagnosis of one of the specified diseases or of
another "disabling asbestos-related injury or disease" to a
plaintiff. Id.
The second pertinent principle that existed in 1985 when
the General Assembly added subsection 4 to Code § 8.01-249 was
the common law indivisible cause of action rule. "[A] cause of
action is a set of operative facts which, under the substantive
law, may give rise to a right of action." Roller v. Basic
Constr. Co., 238 Va. 321, 327, 384 S.E.2d 323, 326 (1989); see
also Rule 1:6(a). A right of action "is the remedial right
accorded [a] person to enforce a cause of action [and] arises
only when [a] person's rights are infringed." Roller, 238 Va.
at 327, 384 S.E.2d at 326. Consequently, a right of action
cannot arise until there is a cause of action, Caudill v. Wise
Rambler, Inc., 210 Va. 11, 13, 168 S.E.2d 257, 259 (1969), and
the two do not necessarily arise simultaneously. Van Dam v.
Gay, 280 Va. 457, 460, 699 S.E.2d 480, 481 (2010). A single
cause of action may give rise to separate rights of action that
accrue at different times. First Virginia Bank-Colonial v.
8
Baker, 225 Va. 72, 81, 301 S.E.2d 8, 13 (1983); see also
McKinney v. Virginia Surgical Assocs., P.C., 284 Va. 455, 460,
732 S.E.2d 27, 29 (2012).
Although multiple rights of action may arise under a given
cause of action, a wrongful act generally gives rise to only a
single indivisible cause of action. As the Supreme Court of the
United States explained in Baltimore Steamship Co. v. Phillips,
274 U.S. 316 (1927),
[a] cause of action does not consist of facts,
but of the unlawful violation of a right which
the facts show. The number and variety of the
facts alleged do not establish more than one
cause of action so long as their result, whether
they be considered severally or in combination,
is the violation of but one right by a single
legal wrong. The mere multiplication of grounds
of negligence alleged as causing the same injury
does not result in multiplying the causes of
action. The facts are merely the means, and not
the end. They do not constitute the cause of
action, but they show its existence by making the
wrong appear. The thing, therefore, which in
contemplation of law as its cause, becomes a
ground for action, is not the group of facts
alleged in the declaration, bill, or indictment,
but the result of these is a legal wrong, the
existence of which, if true, they conclusively
evince.
Id. at 321 (internal quotation marks omitted) (first emphasis
added). When a plaintiff "suffer[s] but one actionable wrong
[or] a single wrongful invasion of a single primary right [such
as] the right of bodily safety," the plaintiff is "entitled to
but one recovery." Id.
9
This Court has long applied this common law principle. In
Street v. Consumers Mining Corp., 185 Va. 561, 39 S.E.2d 271(1946), we stated:
[A]s a general rule, where an injury, though
slight, is sustained in consequence of the
wrongful or negligent act of another and the law
affords a remedy therefor the statute of
limitations attaches at once. It is not material
that all the damages resulting from the act
should have been sustained at that time and the
running of the statute is not postponed by the
fact that the actual or substantial damages do
not occur until a later date. The act itself is
regarded as the ground of the action and is not
legally severable from its consequence. The
statute then begins to run, and not from the time
of the damage or discovery of the injury.
Id. at 566, 39 S.E.2d at 272 (internal quotation marks omitted).
Thus, a statute of limitations usually commences to run
when injury is incurred as a result of a wrongful act. By
enacting Code § 8.01-249(4), however, the General Assembly
carved out an exception to this principle for asbestos exposure
causes of action. Nevertheless, when the statute of limitations
begins to run, it runs as to all damages caused by "the wrongful
or negligent act of another," even if the individual suffers
additional damages at a later date. See id.; Lo v. Burke, 249
Va. 311, 317, 455 S.E.2d 9, 13 (1995) ("[T]he statute of
limitations begins to run when any injury, though slight, is
sustained as the consequence of an alleged wrong, despite the
fact that greater damage from the same wrong may be sustained at
10
a later date."); Starnes v. Cayouette, 244 Va. 202, 206, 419
S.E.2d 669, 671 (1992) ("[W]hen a tort causes a contemporaneous
personal injury, the fact that the victim suffered greater
physical or mental hurt from that tort at a later date does not
defer the date of accrual of the cause of action.").
If the "act itself is regarded as the ground of the
action," and thus cannot be "legally severable from its
consequence," Street, 185 Va. at 566, 39 S.E.2d at 272, a single
wrongful act may not give rise to two independent causes of
action. See Shortt v. Hudson Supply & Equip. Co., 191 Va. 306,
310, 60 S.E.2d 900, 902 (1950) (A plaintiff injured in an
automobile accident "had but a single claim – an indivisible
cause of action for damages for his personal injuries arising
out of the collision."); Carter v. Hinkle, 189 Va. 1, 4, 52
S.E.2d 135, 136 (1949) ("[A]s a general rule a single cause of
action cannot be split into several claims and separate actions
maintained thereon."). The indivisible cause of action rule
governs how many causes of action arise from a single wrongful
act that violates a single right of a plaintiff; the rule
applies to actions based on injury to the person regardless of
how the person was injured. See, e.g., Baltimore S.S. Co., 274
U.S. at 321-22 (plaintiff struck by falling beam on ship);
Starnes, 244 Va. at 204-06, 419 S.E.2d at 670-71 (plaintiff
victim of sexual assault); Shortt, 191 Va. at 309-10, 60 S.E.2d
11at 902-03 (plaintiff hurt in vehicle accident). "The number and
variety of facts alleged do not establish more than one cause of
action so long as their result . . . is the violation of but one
right by a single legal wrong." 4 Baltimore S.S. Co., 274 U.S. at
321.
There is one notable exception to this rule: a single
wrongful act may give rise to separate causes of action if that
wrongful act violates distinct rights. In Carter, the injured
plaintiff filed an action for personal injuries after earlier
filing an action for property damage caused by an automobile
accident. 189 Va. at 3, 52 S.E.2d at 136. Recognizing the
general rule, the Court nevertheless noted that "the history of
the common law shows that the distinction between torts to the
person and torts to property has always obtained." Id. at 4-6,
52 S.E.2d at 136-37 (internal quotation marks omitted). The
Court stated that two actions could be maintained when two
distinct rights, the "right of personal security and the right
of property," were invaded by a single wrongful act: " 'If two
4
Certainly, if there are separate occurrences of wrongful
conduct causing new injuries, separate causes of action may
arise. See Hampton Rds. Sanitation Dist. v. McDonnell, 234 Va.
235, 239, 360 S.E.2d 841, 843 (1987). As the Third Circuit
stated, however, the issue in this case is whether the
indivisible cause of action rule applies "to distinct and
independent asbestos-related diseases stemming from the same
exposure to asbestos" in light of Code § 8.01-249(4). (Emphasis
added.) The Executrix' contention throughout this case has been
that Code § 8.01-249(4) creates separate causes of action
because the injury, not the harmful act, is discrete.
12
separate and distinct primary rights could be invaded by one and
the same wrong, or if the single primary right should be invaded
by two distinct and separate legal wrongs, in either case two
causes of action would exist.' " Id. at 6-7, 52 S.E.2d at 138
(quoting John N. Pomeroy, Pomeroy's Code Remedies § 350 (4th ed.
1904)).
Although we have never addressed the indivisible cause of
action principle in regard to asbestos exposure causes of action
since the enactment of Code § 8.01-249(4), the principle
nevertheless controls. That is, the Executrix' cause of action
for Kiser's wrongful death resulting from exposure to asbestos
accrued at the time of his diagnosis for asbestosis, see Code
§ 8.01-249(4), unless, as the Executrix argues, the enactment of
subsection 4 of Code § 8.01-249 not only established a discovery
accrual rule but also abrogated the common law. When it enacted
§ 8.01-249(4), the General Assembly is presumed to have known of
the common law indivisible cause of action principle and its
applicability to actions for injury to the person, including
those based on exposure to asbestos. See Andrews v.
Commonwealth, 280 Va. 231, 286, 699 S.E.2d 237, 269 (2010). The
Court must, therefore, read Code § 8.01-249(4) "in conjunction
with the common law, giving effect to both 'unless it clearly
appears from express language or by necessary implication that
the purpose of [Code § 8.01-249(4)] was to change the common
13
law.' " Jenkins v. Mehra, 281 Va. 37, 44, 704 S.E.2d 577, 581
(2011) (quoting Isbell v. Commercial Inv. Assocs., Inc., 273 Va.
605, 614, 644 S.E.2d 72, 75-76 (2007)).
The Court presumes that no change to the common law was
intended, and abrogation only occurs "when the legislative
intent to do so is plainly manifested." Id. (internal quotation
marks omitted). And, "even where a statute's purpose is to
abrogate the common law, such statute is 'to be strictly
construed and not to be enlarged in [its] operation by
construction beyond [its] express terms.' " Id. at 45, 704
S.E.2d at 581 (quoting Isbell, 273 Va. at 613, 644 S.E.2d at 75)
(alterations in original).
We begin with the language of the statute at issue. Code
§ 8.01-249(4) states:
The cause of action . . . . [i]n actions for
injury to the person resulting from exposure to
asbestos or products containing asbestos [shall
be deemed to accrue] when a diagnosis of
asbestosis, interstitial fibrosis, mesothelioma,
or other disabling asbestos-related injury or
disease is first communicated to the person or
his agent by a physician.
This language is plain and unambiguous. 5 "In construing a
statute, we must apply its plain meaning, and 'we are not free
5
Because the Executrix does not assert that Code § 8.01-
249(4) is ambiguous, we will not inquire, as she nevertheless
requests, as to "what was the mischief and defect against which
the previous law did not provide" prior to the 1985 amendment.
City of Richmond v. Sutherland, 114 Va. 688, 691, 77 S.E. 470,
14
to add [to] language, nor to ignore language, contained in
statutes.' " BBF, Inc. v. Alstom Power, Inc., 274 Va. 326, 331,
645 S.E.2d 467, 469 (2007) (quoting SIGNAL Corp. v. Keane Fed.
Sys., Inc., 265 Va. 38, 46, 574 S.E.2d 253, 257 (2003)).
" '[When] the legislature has used words of a plain and definite
import the courts cannot put upon them a construction which
amounts to holding the legislature did not mean what it has
actually expressed.' " Barr v. Town & Country Props., 240 Va.
292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins v. Hall,
161 Va. 924, 930, 172 S.E. 445, 447 (1934)).
The particular "cause of action" addressed in subsection 4
is "for injury to the person resulting from exposure to asbestos
or products containing asbestos." Code § 8.01-249(4). Such
causes of action accrue when the diagnosis of any of the
specified diseases or some "other disabling asbestos-related
injury or disease" is communicated to the patient or his agent
by a physician. Id. The other subsections within Code § 8.01-
249 have this same grammatical structure. Each begins by
identifying a specific cause of action and then defining the
particular point at which that action accrues. In every listed
cause of action but one, the accrual of the cause of action is
471 (1913). This Court does not look to legislative intent when
the language of a statute is clear and unambiguous. Eberhardt
v. Fairfax Cnty. Emps. Ret. Sys. Bd. of Trustees, 283 Va. 190,
194, 721 S.E.2d 524, 526 (2012).
15
demarcated by a prepositional phrase starting with the word
"when." See, e.g., Code § 8.01-249(5) ("The cause of action
. . . . [i]n actions for contribution or for indemnification
[shall be deemed to accrue] when the contributee or the
indemnitee has paid or discharged the obligation.").
The Executrix contends, however, that the "separate listing
of the different asbestos-related diseases clearly and plainly
evinces the General Assembly's intent to treat each distinct
disease as a separate cause of action." Under this reading, the
prepositional phrase in Code § 8.01-249(4) that contains the
listed diseases would not modify the verb "accrue" to specify
the point at which the cause of action accrues, but actually
would create separate causes of action. According to the
Executrix, the cause of action specified in Code § 8.01-249(4)
is not a "cause of action . . . . for injury to the person
resulting from exposure to asbestos or products containing
asbestos," but is a "cause of action [for] asbestosis,
interstitial fibrosis, mesothelioma, or other disabling
asbestos-related injury or disease." This interpretation
manifestly requires a re-writing of the statute.
By listing separate diseases in the disjunctive, the
General Assembly merely indicated that the diagnosis of any one
disease triggers the statute's application, a perfectly sensible
decision given the commonality of the listed diseases in
16
asbestos exposure cases. 6 Moreover, whatever its purpose, the
itemization of distinct diseases does not alter the opening
language of the statute, which makes clear that it addresses the
accrual of "[t]he cause of action [i]n actions for injury to the
person resulting from exposure to asbestos or products
containing asbestos." Code § 8.01-249(4). In other words, the
General Assembly did not create a separate cause of action for
each asbestos-related injury or disease.
The Executrix also relies on the dissenting opinion in
Joyce v. A.C. & S., Inc., 785 F.2d 1200 (4th Cir. 1986)
(Swygert, J., dissenting). But there, Judge Swygert argued that
separate diseases caused by asbestos exposure "represent rights
of action which mature independently and trigger statutes of
limitations separately," while the cause of action was "the
exposure to asbestos." Id. at 1209 (Swygert, J., dissenting)
(emphasis added). Judge Swygert believed this outcome was
consistent with "holding that the 'cause of action' itself is
unitary and indivisible." Id. The notion that a single cause
6
Asbestosis is the most common asbestos-related disease,
and mesothelioma is the most fatal. See Peerman v. Georgia-Pac.
Corp., 35 F.3d 284, 285 (7th Cir. 1994) (citing Gray's
Attorney's Textbook of Medicine ¶ 205C.11(1) (3d ed. 1980));
Hansen v. Johns-Manville Prods. Corp., 734 F.2d 1036, 1039 n.2
(5th Cir. 1984). In addition, the Executrix acknowledges that
interstitial fibrosis and asbestosis are the same disease and
that the General Assembly merely included interstitial fibrosis
as an apposition to further identify asbestosis. That
explanation undermines the significance that the Executrix
places on the separate listing of diseases.
17
of action could give rise to multiple rights of action is in
accord with Virginia case law. See, e.g., McKinney, 284 Va. at
460, 732 S.E.2d at 29. But adopting that analysis in this case
would violate the plain language of Code § 8.01-249(4), which
refers only to causes of action.
Several other factors also support our holding that the
General Assembly, by enacting Code § 8.01-249(4), created only a
discovery accrual rule for asbestos exposure actions and did not
abrogate the common law indivisible cause of action principle
for such actions. The first is Code § 8.01-249(4)'s location in
the Code. See Campbell Cnty. v. Royal, 283 Va. 4, 24, 720
S.E.2d 90, 100 (2012) (noting "the larger legislative context in
which the General Assembly placed" a statute). Code § 8.01-249,
as explained above, is an exception to the general rule set
forth in Code § 8.01-230 for accrual of causes of action. Both
Code §§ 8.01-230 and -249 are found in Chapter 4 of Title 8.01,
which Chapter is titled "Limitations of Actions." Within
Chapter 4, Code § 8.01-249 is found in Article 3 addressing
"Personal Actions Generally." Chapter 3 of Title 8.01, on the
other hand, is titled "Actions" and contains multiple Articles
establishing particular causes of action. Thus, both Code
§§ 8.01-230 and -249 limit causes of action by specifying when
the actions accrue, but the actions themselves exist by virtue
of other statutory provisions.
18
In amending Code § 8.01-249 throughout the years, the
General Assembly has reaffirmed through the amendments'
enactment clauses what is evident from the statute's plain
language and location in the Code: that the provision deals only
with the accrual of causes of action and does not create the
causes of action. An enactment clause "is part of the body of
the act which states the precise action taken by the
legislature, thereby establishing the jurisdiction and the
authenticity of the act." Gilmore v. Landsidle, 252 Va. 388,
394, 478 S.E.2d 307, 311 (1996). The enactment clause "also
secures uniformity of identification, thus preventing
inadvertence, possible mistake, and fraud." Id. at 395, 478
S.E.2d at 311. "[T]his Court may rely on the [enactment] clause
to determine the precise content of legislation." Id.
In enacting subsection 4, the General Assembly stated that
it was "[a]n Act to amend and reenact § 8.01-249 . . . relating
to accrual of actions for personal injuries resulting from
asbestos or asbestos products." 1985 Acts ch. 459. Thus, the
"precise action" taken by the legislature in enacting subsection
4 was to identify when an already existing cause of action
accrues, and not to create a cause of action for each disease
caused by asbestos exposure. See Code § 8.01-249(4) Revisers'
Note ("While [the discovery rule contained in the section]
represents an exception to the general rule embodied in § 8.01-
19
230 . . . § 8.01-249 follows Virginia law."); Simon v. Forer,
265 Va. 483, 490-91, 578 S.E.2d 792, 796 (2003) (relying on
Revisers' Note in interpreting meaning of statute).
Similarly, every other enactment clause for amendments to
Code § 8.01-249 has made clear that the provision deals only
with the accrual of existing causes of action, and not their
creation. See 1966 Acts ch. 118 ("[a]n Act to amend and reenact
§ 8-13 . . . relating to limitations of personal actions
generally"); 1986 Acts ch. 601 ("[a]n Act to amend and reenact
§ 8.01-249 . . . relating to accrual of causes of action"); 1991
Acts ch. 674 ("[a]n Act to amend and reenact § 8.01-249 . . .
relating to accrual of actions"); 1992 Acts ch. 817 ("[a]n Act
to amend and reenact § 8.01-249 . . . relating to when a cause
of action is deemed to accrue in designated personal actions");
1993 Acts ch. 523 ("[a]n Act to amend and reenact § 8.01-249
. . . relating to accrual of civil actions"); 1997 Acts ch. 565
("[a]n Act to amend and reenact § 8.01-249 . . . relating to
accrual of actions"); 2005 Acts ch. 213 ("[a]n Act to amend and
reenact § 8.01-249 . . . relating to accrual of causes of
action"). Thus, throughout the history of Code § 8.01-249, the
General Assembly clearly stated its intent that this statute
deals only with the accrual of causes of action.
In sum, nothing in Code § 8.01-249(4), including the
itemization of separate asbestos-related diseases, constitutes
20
"express language or . . . necessary implication" that the
General Assembly intended Code § 8.01-249(4) to abrogate the
common law indivisible cause of action rule for asbestos
exposure actions. See Jenkins, 281 Va. at 44, 704 S.E.2d at 581
(internal quotation marks omitted). Giving effect to both the
common law and Code § 8.01-249(4), we hold that by enacting Code
§ 8.01-249(4), the General Assembly instituted a discovery rule
for the accrual of actions based on exposure to asbestos. It
did not, however, abrogate the indivisible cause of action
principle by creating a "separate disease rule" for such causes
of action arising from a single wrongful act that violates a
single right of a plaintiff.
CONCLUSION
We are well aware of the quandary confronting a plaintiff
who has been diagnosed with an asbestos-related disease in
deciding when to file an action under the current statutory and
common law regime. We are also aware that numerous
jurisdictions, in noting the quandary, have permitted separate
causes of action for malignant and non-malignant asbestos-
related diseases. 7 But we have repeatedly said that, in
7
Many of the decisions from other jurisdictions on which
the Executrix relies make clear, either expressly or implicitly,
that the accrual of causes of action is determined by the
judiciary in those jurisdictions. See, e.g., Sopha v. Owens-
Corning Fiberglas Corp., 601 N.W.2d 627, 632 (Wis. 1999); Pierce
v. Johns-Manville Sales Corp., 464 A.2d 1020, 1025-27 (Md.
21
Virginia, remedying such policy-related problems is the role of
the General Assembly, not ours. 8 See, e.g., Shipman v. Kruck,
267 Va. 495, 503, 593 S.E.2d 319, 323 (2004) (refusing to adopt
a discovery rule by judicial decision and noting that it is "the
role of the General Assembly, not the judiciary, to change a
rule of law that has been relied upon by bench and bar for so
long"). The indivisible cause of action rule has existed in the
Commonwealth for decades, and a decision that causes of action
for asbestos exposure are not subject to the rule must come from
the General Assembly, not the Court.
The certified question of law asks:
Whether, under Va. Code § 8.01-249(4), a
plaintiff's cause of action for damages due to
latent mesothelioma is deemed to accrue [I] at
the time of the mesothelioma diagnosis or [II]
decades earlier, when the plaintiff was diagnosed
with an independent, non-malignant asbestos-
related disease.
1983). Obviously, the judiciary does not do so in Virginia.
8
In fact, several statutes demonstrate that the General
Assembly is aware of the difficulties in litigating asbestos
exposure causes of action. See Code § 8.01-277(B) (permitting
dismissal of actions in cases where process is not served within
one year, but excepting asbestos cases); Code § 8.01-335(D)
(permitting cases where process is not served within one year to
be struck from docket, but excepting asbestos cases). These
statutes further demonstrate that the General Assembly did not
intend to abrogate the common law when it enacted subsection 4
of Code § 8.01-249. Otherwise, these exceptions for asbestos
exposure actions would not be needed.
22
(Numeral designators added). For the reasons stated, we answer
that question in the negative with respect to alternative [I]
and in the affirmative with respect to alternative [II].
Certified question alternative [I]
answered in the negative.
Certified question alternative
[II] answered in the affirmative.
JUSTICE MILLETTE, with whom JUSTICE MIMS joins, dissenting.
Today, the majority holds that "by enacting Code § 8.01-
249(4), the General Assembly instituted a discovery rule for the
accrual of actions based on exposure to asbestos. It did not,
however, abrogate the indivisible cause of action principle by
creating a 'separate disease rule.' " I agree with my
colleagues that Code § 8.01-249(4) has but one purpose – to
create a discovery rule. Because I do not agree that this
conclusion mandates the outcome of today's opinion, however, I
respectfully dissent.
As the majority demonstrates, the statute in question
indeed creates a discovery rule. That is, it relates to the
proper commencement of the statute of limitations. It provides
no guidance whatsoever as to the question posed to us by the
Third Circuit regarding when the cause of action is to accrue.
Likewise, it offers no comment on the application of the
indivisible cause of action rule in asbestos cases. To
23
interpret it to address either would be to embrace more than one
object in a single law in violation of Article IV, § 12 of the
Virginia Constitution.
Thus, we are left to answer the question posed by the Third
Circuit without guidance from Code § 8.01-249(4). The majority
holds that addressing whether separate causes of action arise in
asbestos cases is a "policy-related problem[]" that is properly
within the province of the General Assembly. To support this
claim, the majority cites Shipman v. Kruck, 267 Va. 495, 503,
593 S.E.2d 319, 323 (2004). Shipman, while observing that it is
within the authority of the General Assembly and not the Court
to create a discovery rule, does not stand for the proposition
that every issue implicating policy is the sole domain of the
legislature. Courts must respect the line between judicial
interpretation and legislating from the bench. The distinction
here, however, is clear: discovery rules apply to the
commencement of the statute of limitations, an issue that is
fundamentally statutory in nature and properly sits with the
legislature. The accrual of causes of action has long been
governed by common law, see, e.g., Caudill v. Wise Rambler,
Inc., 210 Va. 11, 13, 168 S.E.2d 257, 259 (1969); Locke v.
Johns-Manville Corp., 221 Va. 951, 958, 275 S.E.2d 900, 905
(1981), and clarifying or refining the application of an
24
existing common law principle fits within the province and duty
of this Court.
We should therefore turn to the common law governing when a
cause of action accrues. The terms cause of action and right of
action are often confused in legal writing and, as the majority
points out, they are not synonymous. We have previously held
that a cause of action accrues when the harm occurs, and not
before:
The essential elements of a good cause of action,
whether based on an alleged breach of contract or on a
tortious act, are a legal obligation of a defendant to
the plaintiff, a violation or breach of that right or
duty, and a consequential injury or damage to the
plaintiff. In the absence of injury or damage to a
plaintiff or his property, he has no cause of action
and no right of action can accrue to him.
Caudill, 210 Va. at 13, 168 S.E.2d at 259. In Locke, 221 Va. at
958, 275 S.E.2d at 905, we held that when medical evidence
showed that a cancerous mesothelioma tumor began its development
not contemporaneously with the asbestos exposure but some time
later, the development of the cancer and not the exposure
triggered the accrual of the cause of action. The relevant
question, we reiterated, was, "When was the plaintiff hurt?"
Id.
This rule as to the accrual of the cause of action was not
modified by Code § 8.01-249. This Code section simply lists
discovery rules applicable to the commencement of the running of
25
the statute of limitations for the specific categories of claims
listed in the statute. The creation of such a discovery rule
for asbestos cases negates the need for medical testimony to
identify when the cancer likely developed in cases such as
Locke, but it has no effect on the accrual of the cause of
action. Rather, it affects the accrual of the right of action.
The general rule for accrual of a right of action in
Virginia, set forth in Code § 8.01-230, reads in pertinent part
as follows:
In every action for which a limitation period is
prescribed, the right of action shall be deemed to
accrue and the prescribed limitation period shall
begin to run from the date the injury is sustained in
the case of injury to the person . . . and not when
the resulting damage is discovered, except . . . where
otherwise provided [in another] statute.
Id. This statute was amended from an earlier version that
erroneously used the term "cause of action" as opposed to "right
of action." See Code § 8.01-230 (1984 Repl. Vol.). The same
linguistic change should have been made to Code § 8.01-249, an
example of a statute "otherwise provid[ing]" a specific time of
accrual. In the absence of the change, the Code section is
internally incongruous: a "cause" of action does not have a
statute of limitations and likewise is not subject to a
discovery rule. A cause of action is substantive in nature and
always arises upon the harm to the plaintiff. Locke, 221 Va. at
958, 275 S.E.2d at 905. A "right" of action, to which Code
26
§ 8.01-249 is clearly intended to refer, is the legal ability to
seek recourse for that cause of action, and is subject to
discovery rules and statutes of limitations. See Keister v.
Keister, 123 Va. 157, 160, 96 S.E. 315, 316 (1918).
There is no statutory law or common law rule in Virginia
requiring that distinct asbestos-related diseases constitute the
same cause of action. 1 When, as in the case of asbestosis and
mesothelioma, there are two distinct and unrelated harms that
accrue at different times, the plaintiff may have two separate
causes of action.
A considerable portion of the majority opinion addresses
the indivisible cause of action rule. A common articulation of
this principle is:
where an injury, though slight, is sustained in
consequence of the wrongful or negligent act of
another and the law affords a remedy therefor the
statute of limitations attaches at once. It is not
material that all of the damages resulting from the
act should have been sustained at that time and the
running of the statute is not postponed by the fact
that the actual or substantial damages do not occur
until a later date.
Street v. Consumers Mining Corp., 185 Va. 561, 566, 39 S.E.2d
271, 272 (1946) (internal quotation marks omitted). This
principle in fact addresses not the accrual of the cause of
1
The Joyce decisions, Joyce v. A.C. & S., Inc., 591 F. Supp.
449 (W.D. Va. 1984) and the Fourth Circuit case affirming the
holding, Joyce v. A.C. & S., Inc., 785 F.2d 1200 (4th Cir.
1986), are federal interpretations of Virginia law and do not
bind this Court.
27
action but rather the accrual of a right of action, the
commencement of the statute of limitations, and the possibility
of later claims being barred by issue or claim preclusion. 2 The
indivisible cause of action rule is a principle of res judicata
or estoppel (issue or claim preclusion), and does not influence
whether the substantive cause of action exists. See Wilson v.
Johns-Manville Sales Corp., 684 F.2d 111, 117-18 (D.C. Cir.
1982).
The law may indeed provide other bars to subsequent actions
arising from the same act or set of acts, depending upon the
details of the record and the nature of the previous action.
That is a different question than whether the cause of action
exists. Under Virginia law, it does. The simplest instance can
be seen in the case of an individual who was diagnosed with mild
asbestosis and chose not to bring suit. The mere diagnosis of
asbestosis should not serve as a bar to a later suit for
mesothelioma, upon its discovery. See id. If the second harm
has not yet occurred upon the accrual of the first right of
action, then the plaintiff cannot possibly bring them in the
same action. "A disease like this cancer must first exist
before it is capable of causing injury. To hold otherwise would
2
Additionally, this principle has been invoked in cases
where the additional damages were cumulative in nature and
relate to the initial harm, which is not the issue before the
Court.
28
result in the inequity of barring the mesothelioma plaintiff's
cause of action before he sustains injury." Locke, 221 Va. at
959, 275 S.E.2d at 905. When the harm at issue is cancer to the
lining of the lungs, it is illogical to say that the cause of
action accrues before the cancer has even developed. Since the
discovery rule under Code § 8.01-249(4) applies generally to
asbestos-related injuries, it applies to mesothelioma victims
regardless of a previous diagnosis of asbestosis.
Further bolstering the argument for two causes of action is
the fact that, in multiple-exposure cases such as this, we do
not know at the onset of the suit whether the relevant exposures
that caused the two harms arose from the same act or set of
acts. 3 To so conclude would be to hold as a matter of law that
multiple exposures to different asbestos products must always
constitute the same singular "act." In the case before us, we
have potentially distinct causal exposures (given the
multiplicity of defendants) and two distinct harms, linked only
by the fact that the harms were caused by inhalation of the same
3
The majority quotes a portion of the Third Circuit's
memorandum of certification that refers to the two diseases as
"stemming from the same exposure to asbestos." The same
document acknowledges that Kiser's original asbestosis suit
contained eighteen asbestos manufacturers, sellers, and
distributors, and that the mesothelioma suit at bar originally
contained twenty different additional defendants. Although
these exposures may have occurred while working for the same
primary employer, this appears from our position to be a
multiple-exposure case.
29
substance. It is reasonable to find two distinct causes of
action.
Additionally, given that the first cause of action for
asbestosis injury was voluntarily dismissed in the instant case,
the effect of issue and claim preclusion mechanisms is dependent
on the record and far beyond the scope of the certified question
before the Court today. The ample attention given by the
majority to the indivisible cause of action rule is premature.
Our holding in Locke that the cause of action accrues at
the time of the harm rather than at the time of exposure
logically makes Virginia a "two-disease rule" state, in the
common shorthand of asbestos litigation. Beyond Locke, however,
there are a multitude of reasons why the Commonwealth should
recognize a two-disease rule in asbestos cases.
First, asbestosis and mesothelioma are medically discrete
and independent diseases. They develop in different parts of
the body and follow dramatically different courses. Asbestosis
is a non-malignant disease of the lung, also known as
interstitial fibrosis. 5 Richard M. Patterson, Lawyers' Medical
Cyclopedia of Personal Injuries & Allied Specialties § 33.54, at
33-83 (6th ed. repl. ed. 2011). The disease gradually worsens,
particularly with continued exposure to asbestos, generally
resulting in decreased pulmonary function and increased
difficulty breathing over time. Id. at 33-83 through 33-84.
30
Mesothelioma is a malignant cancer of the pleura (lining) of the
lung or, more rarely, of the peritoneum (abdominal cavity). Id.
at 33-85 through 33-86. It has a significant latency period,
the exact time period of which is disputed by experts, but
appears from current medical knowledge to average approximately
thirty-five years. Id. at 33-85. Mesothelioma has been
documented not only in asbestos workers but also in individuals
who have had low-level exposure through, for example, living in
asbestos mining towns or being married to an asbestos worker who
carried fibers home on his or her clothes. Id. at 33-85 through
33-86. The disease is virtually always fatal within two years
of diagnosis. Id. at 33-86.
Virginia courts, like many jurisdictions, acknowledge these
distinctions by treating the diseases differently at trial. We
have required plaintiffs in asbestosis cases to show repeated or
prolonged exposure to asbestos. We have cited with approval a
Georgia case that stated that asbestosis, "by definition,
results only from an overexposure to asbestos." Norfolk S. Ry.
v. Rogers, 270 Va. 468, 485, 621 S.E.2d 59, 69 (2005) (internal
quotation marks and citation omitted). See also Norfolk & W.
Ry. v. Ayers, 538 U.S. 135, 155-56 (2003) ("Asbestosis is a
chronic, painful and concrete reminder that [a plaintiff] has
been injuriously exposed to a substantial amount of asbestos.")
31
(internal quotation marks and emphasis omitted) (emphasis
added).
On the other hand, we have recognized that a lesser degree
of exposure may be sufficient to prove causation in mesothelioma
cases. We considered a case in which a shipyard pipe-coverer
developed mesothelioma and died after cutting and installing
insulation products which contained asbestos, a process that
created visible dust which he inhaled. Owens-Corning Fiberglas
Corp. v. Watson, 243 Va. 128, 143-44, 413 S.E.2d 630, 639
(1992). The decedent had not been able to identify the brand or
brands of asbestos products that he worked with prior to his
death. We nonetheless determined that the circumstantial
evidence that an asbestos product known as "Kaylo," manufactured
by the defendant, was a prominently used product on the ship,
combined with "medical evidence reveal[ing] that very limited
exposure to asbestos fibers can cause mesothelioma," provided
sufficient evidence to support a jury verdict against the
manufacturer. Id. at 143, 413 S.E.2d at 639.
"One of the principal tests in determining whether a demand
is single and entire, or whether it is several, so as to give
rise to more than one cause of action, is the identity of facts
necessary to maintain the action. If the same evidence will
support both actions there is but one cause of action." Jones
v. Morris Plan Bank, 168 Va. 284, 290-91, 191 S.E. 608, 609-10
32
(1937). Here, the evidence set forth for asbestosis and
mesothelioma claims, although containing some overlap, are
markedly different.
Indeed, the only certain connection that these two diseases
have is that they both stem from exposure to asbestos. In the
case at bar, the defendants are entirely distinct from those in
the original asbestosis suit. Given our current state of
medical knowledge, however, it is not even possible to determine
with certainty which disease stemmed from what asbestos
exposure(s). See Ford Motor Co. v. Boomer, 285 Va. ___, ___,
___ S.E.2d ___, ___ (2013) (this day decided).
Not all victims of asbestosis develop mesothelioma, but
given their generally substantial periods of asbestos exposure,
some do. And this underscores the fundamental unfairness of
deeming only a single cause of action to exist for all asbestos
exposure cases: while an individual who developed mesothelioma
from only minimal asbestos exposure not sufficient to develop
asbestosis has a recourse in the law for his or her mesothelioma
diagnosis because that individual has not suffered a previous
injury, an individual who first developed asbestosis due to his
or her longer exposure to asbestos can recover for the effects
of his non-malignant asbestosis but has no recourse in the law
for his second, likely fatal disease.
33
As explained by the majority, the fundamental purpose of
the subsections of Code § 8.01-249 is to create discovery rules.
Generally, the intent of a discovery rule is to expand
plaintiffs' access to legal remedies by deferring the statute of
limitations to permit plaintiffs a fair chance to file suit when
the onset of the harm would have been previously unknown to
them: that is, the purpose is to make the operation of the
statute of limitations more appropriately fit the disease in the
interest of fairness.
The effect of today's holding, however, is to contract that
right to remedies for mesothelioma plaintiffs when the victims
were previously diagnosed with asbestosis. The relatively short
latency period for asbestosis, the applicable two-year statute
of limitations for personal injury, and the substantially longer
latency period for mesothelioma virtually guarantee that
individuals who have asbestosis will be barred from recovering
damages should they subsequently develop mesothelioma.
Such a holding is contrary to the purpose behind the
creation of a discovery rule. Indeed, the enactment of the
discovery rule provisions in Code § 8.01-294(4) is only one of
several actions taken by the General Assembly that suggest an
intent to treat asbestos-related diseases differently in order
to produce a fair result. See Code § 8.01-277(B) (permitting
dismissal of actions in cases where process is not served within
34
one year, but excepting asbestos cases); Code § 8.01-335(D)
(permitting cases where process is not served within one year to
be struck from docket, but excepting asbestos cases).
Certainly, it is not the case that two asbestos-related
diseases could never constitute the same cause of action. That
is not the question before us. Should medical knowledge evolve
to show that the harm occurred simultaneously, for example, the
injuries would constitute the same cause of action. The Tenth
Circuit put it well in a similar question certified to the
Supreme Court of Colorado:
We recognize that the relationship between asbestos-
related pleural disease and asbestosis is a factual
question. Because this is an appeal from a summary
judgment and there is conflicting evidence in the
record, it must be assumed that asbestosis is separate
and distinct from and not a complication of asbestos-
related pleural disease. We thus respectfully request
the Colorado Supreme Court to focus on the narrow
legal issue of whether a statute of limitations begins
to run anew for a separate, distinct, and later-
manifested disease caused by exposure to asbestos.
Miller v. Armstrong World Indus., Inc., 817 P.2d 111, 113 (Colo.
1991) (quoting from the certification order and finding that the
discovery of one separate asbestos related disease does not
trigger the statute of limitations on a yet undiscovered
disease).
Ever-evolving, fact-specific inquiries such as this are
best left to expert testimony at trial. Given sufficient
evidence to create an issue of fact, however, as to whether the
35
disease is distinct and not a mere complication of an earlier
diagnosis, and provided that the other requisite elements have
been pled, courts should consider mesothelioma as a distinct
harm and a distinct cause of action.
Finally, permitting distinct causes of action would join a
nationwide trend toward adopting a two-disease rule in the
interest of equity and judicial economy. See Hagerty v. L&L
Marine Servs., Inc., 788 F.2d 315, 320 (5th Cir. 1986) ("At
least in the toxic chemical or asbestos cases, the disease of
cancer should be treated as a separate cause of action for all
purposes. There should be no cause of action or beginning of
the running of limitations until the diagnosis of the
disease. . . . A prior but distinct disease, though the
tortfeasor may have paid reparations, should not affect the
cause of action and damages for the subsequent disease.");
Wilson, 684 F.2d at 120 (D.C. Cir. 1982) ("Concern for judicial
economy also influences our decision. [I]f [an injured] person
is told that another, more serious disease may manifest itself
later on, and that a remedy in court will be barred unless an
anticipatory action is filed currently, there will be a powerful
incentive to go to court [and the] plaintiff's representative
. . . may be motivated to protract and delay once in court so
that the full story of his client's condition will be known
before the case is set for trial."); Fearson v. Johns-Manville
36
Sales Corp., 525 F. Supp. 671, 674 (D.D.C. 1981) ("Under
defendants' theory, plaintiffs would be forced to come into
Court as soon as any minimal problem is diagnosed and seek
speculative damages as to any other injuries that might develop
in the future. Plain common sense teaches that the law was
never meant to be so unreasonable."); Miller, 817 P.2d at 113
(concluding, in answer to a certified question of law from the
United States Court of Appeals for the Tenth Circuit, that one
asbestos-related diagnosis does not trigger the statute of
limitations for a distinct asbestos-related disease); Sheppard
v. A.C. & S. Co., 498 A.2d 1126, 1134 (Del. Super. 1985)
("[L]atent disease cases justify a change in our perception and
application of the statute of limitations to the end that a
plaintiff with the misfortune of contracting more than one
asbestos-related ailment over a long period of time not be
without a remedy for the later and generally more serious and
inherently unknowable claims."); Eagle-Picher Indus., Inc. v.
Cox, 481 So. 2d 517, 529-30 (Fla. Dist. Ct. App. 1985)
(concluding that, because damages for enhanced cancer risk were
not part of plaintiff's first award, a subsequent cause of
action for damages due to cancer caused by asbestos was not
barred); Va Salle v. Celotex Corp., 515 N.E.2d 684, 687 (Ill.
App. Ct. 1987) ("To preclude recovery based upon the statute of
limitations under these factual circumstances would . . . mean
37
that at some past moment in time, unknown and inherently
unknowable even in retrospect, [plaintiff] was charged with
knowledge of [asbestos-originating lung cancer].") (internal
quotation marks and citations omitted); Wilber v. Owens-Corning
Fiberglass Corp., 476 N.W.2d 74, 78 (Iowa 1991) ("The
manifestation of asbestosis does not trigger the running of the
statute of limitations on all separate, distinct, and later-
manifested diseases which may have stemmed from the same
asbestos exposure."); Smith v. Bethlehem Steel Corp., 492 A.2d
1286, 1296 (Md. 1985) ("[T]he starting point for Pierce was the
medical evidence that lung cancer was a latent disease, separate
and distinct from asbestosis. . . . Our review of Pierce
convinces us that the fact that the claimant there had not
previously sued in tort for damages for asbestosis was not a
factor material to the holding."); Larson v. Johns-Manville
Sales Corp., 399 N.W.2d 1, 9 (Mich. 1986) ("The alternatives
facing this Court are . . . to force all asbestosis victims
. . . to sue for the possibility of contracting cancer, or . . .
to allow these victims to wait until the discoverable appearance
of cancer before bringing suit. The latter alternative seems to
us infinitely preferable."); Ayers v. Township of Jackson, 525
A.2d 287, 300 (N.J. 1987) ("[N]either the statute of limitations
nor the single controversy rule should bar timely causes of
action in toxic-tort cases instituted after discovery of a
38
disease or injury related to tortious conduct, although there
has been prior litigation between the parties of different
claims based on the same tortious conduct."); Fusaro v. Porter-
Hayden Co., 548 N.Y.S.2d 856, 860 (N.Y. Sup. Ct. 1989)
("Implicit or explicit recognition of the second injury concept
is evident in the rulings and jury charges of the Federal
District Courts and State Courts in this jurisdiction as well.
Juries . . . may not compensate asbestosis victims for increased
risk of cancer because there is insufficient probability that
the disease will develop. The language of these charges and
rulings suggest that future actions will not be barred should
cancer actually occur.") (internal citations omitted); Potts v.
Celotex Corp., 796 S.W.2d 678, 685 (Tenn. 1990) (concluding, in
response to a certified question of law from the United States
Court of Appeals for the Sixth Circuit, that "discovery of a
separate, independent, and distinct disease related to asbestos"
does not constitute "discovery of other separate, independent,
distinct, and latent asbestos-related diseases," and that such
latent diseases are not barred by the statute of limitations by
virtue of the prior discovery of a distinct disease.); Sopha v.
Owens-Corning Fiberglas Corp., 601 N.W.2d 627, 630 (Wis. 1999)
("We hold that a person who brings an action based on a
diagnosis of a non-malignant asbestos-related condition may
39
bring a subsequent action upon a later diagnosis of a distinct
malignant asbestos-related condition.").
Judicial tribunals across the nation have faced a common
question of equity: how to provide proper remedies for a
generation of workers who are facing devastating diagnoses of
latent asbestos-related diseases not previously accommodated by
our legal system. In the absence of a clear legislative
mandate, this Court has a duty to clarify how our long-standing
principles of law apply to victims of asbestosis and
mesothelioma. Our common law cause of action principles provide
for distinct causes of action, and such an outcome supports both
equity and judicial economy.
For these reasons, I would answer the certified question of
law in the affirmative with respect to alternative [I] and in
the negative with respect to alternative [II].
I respectfully dissent.
40