Stuart

MONTGOMERY, Ala. (Legal Newsline) - The Alabama Supreme Court has ruled that a plaintiff injured by long-term continuous exposure to a toxic substance is limited to recovering damages attributable to injuries occurring within the period of limitations.

The Court's June 30 ruling was one of the questions certified to it by the U.S. Judicial Panel on Multi-District Litigation.

The MDL court consolidated, in the U.S. District Court for the Northern District of Ohio Eastern Division, close to 1,800 cases involving claims seeking damages for personal injuries allegedly caused by exposure to welding fumes.

Several dozen of those cases, it noted, are governed by Alabama law.

The MDL court identified three specific issues of state law that may be determinative in those cases. They are:

- In a case where the plaintiff seeks damages caused by long-term, continuous exposure to an allegedly toxic substance, does the law of Alabama applicable before Griffin v. Unocal Corp. limit the plaintiff to recovery of damages attributable only to exposures that occurred within the limitations period?

- Does the six-year statute of limitations for wantonness claims adopted by the Alabama Supreme Court in McKenzie v. Killian apply: (1) prospectively to claims that were filed after McKenzie was decided; (2) retroactively to claims that accrued no earlier than two years before McKenzie was decided; or (3) in some other fashion?

- Also, if the answer to the first question is yes, does the law of Alabama impose the burden upon the plaintiff or upon the defendant to prove the amount of damage, if any, attributable to exposures that occurred within the applicable limitations period, versus the amount of damage, if any, that (is) attributable to exposures that occurred outside of the applicable limitations period?

The MDL court notes there is no clear, controlling precedent in the decisions of the state's high court resolving those issues.

The Court said the rule limiting the recovery of damages to those resulting from injuries occurring within the period of limitations was not changed. Therefore, it said it must answer the first certified question in the affirmative.

As to the second question, in Ex parte Capstone Building Corp., the Court overruled McKenzie to the extent it held that wantonness claims are subject to a six-year statute of limitations. However, it also declined to apply that holding retroactively.

A six-year limitations period therefore applies to wantonness claims filed before Ex parte Capstone was released, the Court said.

As to the third question, the Court ruled that a plaintiff injured by long-term continuous exposure to a toxic substance bears the burden of establishing what damages, if any, are attributable to injuries occurring within the limitations period as opposed to injuries occurring outside that limitations period.

"A plaintiff's damages are never an element of an asserted defense -- affirmative or otherwise; rather, as stated above, it is the plaintiff's responsibility to prove damages," the court ruled.

"Moreover, this Court has previously considered the issue raised by the third certified question and has held that the burden of proving what damages are recoverable remains with the plaintiff even when some of the plaintiff's claims have been determined to be time-barred."

Justice Lyn Stuart authored the Court's 22-page majority decision.

Chief Justice Sue Bell Cobb concurred with most of the ruling, but dissented with respect to the second question.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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