RICHMOND, Va. (Legal Newsline) – Virginia legislators have passed a bill in the wake of a state Supreme Court decision over when a lawsuit can be filed in relation to asbestos-connected conditions and injuries.
Gov. Ralph Northam has signed into law a statute allowing individuals to reset the clock to file a claim when they are diagnosed with a malignant, asbestos-related injury, including mesothelioma.
House Bill 781 passed unanimously through the House and Senate. It will circumvent a 2013 Virginia Supreme Court decision that found the statute of limitations begins on the first diagnosis of any condition related to asbestos exposure.
The 2013 decision in Kiser v. A.W. Chesterton turned on the question sent from the U.S. Court of Appeals for the Third Circuit asking whether under Virginia law "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."
Orvin Kiser filed suit in 1988 against numerous manufacturers, sellers and distributors, seeking damages for his employment-related exposure to asbestos and resulting medical condition. He was diagnosed with nonmalignant pleural thickening and asbestosis.
In November 2008, he was diagnosed with mesothelioma, an asbestos-related malignant cancer of the lung lining, and he died the following March. A wrongful death suit was filed in 2010 against defendants not named in the previous suit.
The Supreme Court agreed with the various defendants and their motions arguing that the statute of limitations barred the 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 limitation."
In short, it found that the statute of limitations for all asbestos-related claims begins to run on the initial date of diagnosis by a physician of an asbestos-related disease.
The new Virginia law states that, from July 1, 2020, the two injuries – the initial non-malignant condition and subsequent diagnosis of a malignant asbestos-related injury – are separate when calculating statute of limitations.