A divided Virginia Supreme Court, answering a question certified to it by the Third Circuit Court of Appeals, has determined that a plaintiff’s cause of action for damages due to latent mesothelioma accrued not at the time of the mesothelioma diagnosis, but rather years earlier when the plaintiff was diagnosed with an independent, non-malignant asbestos-related disease. Kiser v. A.W. Chesterton Co., No. 120698 (Va., decided January 10, 2013). According to the majority, “the General Assembly did not abrogate the common law indivisible cause of action principle [when enacting Code § 8.01-249 (4)] and … a cause of action for personal injury based on exposure to asbestos accrues upon the first communication of a diagnosis of an asbestos-related injury or disease by a physician.”

Here, the plaintiff’s decedent was allegedly exposed to asbestos in the workplace from 1957 to 1985 and diagnosed with nonmalignant pleural thickening and asbestosis in 1988. He filed a timely lawsuit against numerous asbestos defendants in 1990, but voluntarily dismissed the complaint in 2010. He was also diagnosed with mesothelioma in November 2008 and died the following March. His widow filed a wrongful death action in October 2010 against 21 defendants, none of whom were parties to the first action. The case was consolidated by the Judicial Panel on Multidistrict Litigation and transferred to a federal court in Pennsylvania. The defendants sought to dismiss, claiming that the suit was barred by the two-year statute of limitations, and the plaintiff claimed that Code § 8.01-249 (4), enacted in 1985, abolished the indivisible cause of action theory and a new statute of limitations was thus triggered when her husband was diagnosed with mesothelioma in 2008.

According to the court, the statute, which imposes a two-year limitations period on asbestos lawsuits, lists separate asbestos-related diseases in the disjunctive, and by doing so, “the General Assembly merely indicated that the diagnosis of any one disease triggers the statute’s application. … In other words, the General Assembly did not create a separate cause of action for each asbestos-related injury or disease.” The court noted that in other jurisdictions, separate causes of action have been permitted for malignant and non-malignant asbestos-related diseases, but said that any change in policy on this issue is for the General Assembly to consider and not the courts.

The dissenting justices argue that the Code is a discovery rule and “simply lists discovery rules applicable to the commencement of the running of the statute of limitations for 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 … but it has no effect on the accrual of the cause of action.” They opine that the majority’s interpretation will “virtually guarantee that individuals who have asbestosis will be barred from recovering damages should they subsequently develop mesothelioma,” in light of the relatively short latency period for asbestosis and “substantially longer latency period for mesothelioma.”