Nathan Bass Jan. 17, 2013, 5:32pm

RICHMOND, Virg. (Legal Newsline) - On a certified question of law from the U.S. Court of Appeals for the Third Circuit, the Virginia Supreme Court held that a cause of action due to latent mesothelioma accrues "upon the first communication of a diagnosis of an asbestos-related injury or disease by a physician."

The Jan. 10 majority opinion of the Court was written by Chief Justice Cynthia D. Kinser with Justice LeRoy F. Millette Jr., joined by Justice William C. Mims, authoring a dissent.

The certified question to the Court reads:

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.

The certified question came about as a result the case of Orvin H. Kiser Sr., a DuPont plant worker in Waynesboro, Va., from 1957 to 1985. Kiser initially filed suit in 1988 against numerous manufacturers, sellers, and distributors, seeking damages for his employment related exposure to asbestos and resulting medical condition.

At that time, Kiser had been diagnosed with nonmalignant pleural thickening and asbestosis, according to the opinion.

In November 2008, he was diagnosed with mesothelioma, an asbestos-related malignant cancer of the lung lining, and he died the following March.

Kiser's wife and executrix of his estate, Phyllis H. Kiser, filed a wrongful death action in October 2010 against "twenty-one defendants, none of which were parties to the first action," the opinion states.

"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."

The various defendants filed motions to dismiss on the theory that the statute of limitation barred the 2010 suit because "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)."

The Executrix maintained that another code, 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.

The district court held that "Code § 8.01-249(4) instituted a discovery rule for the accrual of asbestos-related causes of action but did not supplant the indivisible cause of action rule with a 'separate disease rule.'"

The district court held, "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."

The Executrix then appealed to the U.S. Court of Appeals for the Third Circuit and the Third Circuit recognized that the timeliness of this cause of action "turned 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."

The Third Circuit then certified the question to Virginia's highest court.

"[A] statute of limitations usually commences to run when injury is incurred as a result of a wrongful act," Kinser wrote. "By enacting Code § 8.01-249(4), however, the General Assembly carved out an exception to this principle for asbestos exposure causes of action."

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.

The Executrix contended that the separate listing of the different asbestos-related diseases clearly shows the legislature's intent to treat each disease as a separate cause of action.

"By listing separate diseases in the disjunctive," Kinser wrote, "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 asbestos exposure cases.

"In other words, the General Assembly did not create a separate cause of action for each asbestos-related injury or disease."

"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.

"But we have repeatedly said that, in Virginia, remedying such policy-related problems is the role of the General Assembly, not ours.

"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.

"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]."

Millette disagreed with the majority's analysis.

"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.

"There is no statutory law or common law rule in Virginia requiring that distinct asbestos-related diseases constitute the same cause of action. 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.

"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.

"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."

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