If you or a loved one have been diagnosed with mesothelioma, it is important to understand the statute of limitations for your state. Generally, the statute of limitations for a mesothelioma cancer case begins at the time of the diagnosis or death of the patient, and expires at various times, depending upon the laws of the state. (there is a by state list of mesothelioma statute of limitations at the conclusion of this article.)
Generally, the statute of limitations is between one and three years from diagnosis or death, but this varies per state law. But mesothelioma claims are more complex than many other claims, and the statute of limitations issue is a frequent bone of contention in court.
Challenges of Statute of Limitations in Claims
In most personal injury cases, applying the state statute of limitations is fairly easy. The plaintiff usually knows exactly when he was injured. That is when the clock begins to tick on the claim. But with a mesothelioma or asbestos disease claim, things get more complicated. It can take over 20 years after the asbestos exposure for the patient to develop mesothelioma. Unlike most personal injuries, the conduct that led to the mesothelioma usually is not easily traced to a single source or moment in time. Instead, it often is traced back to a time of exposure to asbestos that could span years when the claimant worked in a certain factory, shop, or building.
For the most part, statutes covering limitations periods for personal injuries range from one to six years. But it takes years longer for mesothelioma patients to discover their often terminal injuries. If asbestos plaintiffs were held to the same standard, most of their claims would be barred even before they knew they had a injury. That is why courts interpret mesothelioma statute of limitations differently.
The reason that courts view mesothelioma so differently is because the patient can go years without realizing they are injured. The early signs of mesothelioma can be easily confused with other diseases and illnesses. Some of the minor symptoms, such as shortness of breath, can be attributed to asthma or pneumonia. This is particularly common because the patients tend be be in their 60s or 70s.
Also, many doctors who see patients for the first time may not suspect mesothelioma at all. The symptoms are nonspecific and there are only a few thousand cases in the US per year. Also, some imaging tests do not reveal chest and abdomen malignancies ver well. But technology is getting better. Symptoms that once were hard to determine as mesothelioma are now easier to detect before it is too late.
Discovery Rule for Mesothelioma Cases
In most cases, the statute of limitations clock begins to run when the person is hurt. However, the landmark asbestos case in 1973 – Borel v. Fibreboard Paper Products. Corp., (Tshaonline.org) dealt with the challenge of applying this traditional rule to mesothelioma cases. Since that case years ago, courts apply this discovery rule to asbestos and mesothelioma claims.
Landmark Case in Mesothelioma Lawsuit History
In that landmark statute of limitations case, the name of the plaintiff was Clarence Borel. (Justia.com). He worked in industrial insulation and was exposed to asbestos for more than 30 years. It was noted in court testimony that Borel noted for years that inhaling asbestos dust was bad, but he did not know that it could cause a terminal illness. He also told the court that at the end of the day his clothes were so dusty with asbestos that he could just barely pick them up without shaking them.
It was documented in court that he was exposed to asbestos between 1936 and 1939. In March 1969, he was diagnosed with pulmonary asbestosis. Seven months after that, the worker filed a lawsuit against the insulation manufacturing company. His health continued to get worse, and he found he had mesothelioma in 1970 when is lung was removed.
The US Court of Appeals for the Fifth Court understood the unfairness of applying traditional statute of limitations rules to people suffering from asbestos-related diseases. The court noted many personal injury cases that related to exposure to dangerous chemicals and substances. In these legal cases, it was found that a cause of action failed to accrue until the effects of the exposure became evident.
Also, the Fifth Court found that the discovery rule also should apply to medical malpractice cases. It found that the cause of action does not accrue until the person’s injury is discovered. The court found that the rule also should be applied to asbestos injury cases. Later, an Illinois court explained the thinking in an asbestos claim against the company Johns Manville. It found that the cause of action accrues when the injured person knows or should have known of the injury, and also knows or should reasonably know the injury was due to the improper acts of another party.
Today, most courts in the US apply the discovery rule to mesothelioma cases. In such cases, the plaintiff has a certain period of time to file a mesothelioma claim, after they knew or should have known they were injured. This normally is considered the date of diagnosis with a disease related to asbestos exposure.
Statute of Limitations by State
Below is a list of statute of limitations per state. Generally, a mesothelioma or asbestos claimant has a certain period of time from the date of diagnosis or death to file a claim:
- Alabama: 2 years from diagnosis; 2 years from death
- Alaska: 2 years; 2 years
- Arizona 2 years; 2 years
- Arkansas: 3 years; 3 years
- California: 1 year; 1 year
- Colorado: 2 years; 2 years
- Connecticut: 3 years; 3 years
- Delaware: 2 years; 2 years
- Florida: 4 years; 2 years
- Georgia: 2 years; 2 years
- Hawaii: 2 years; 2 years
- Idaho: 2 years; 2 years
- Illinois: 2 years; 2 years
- Indiana: 2 years; 2 years
- Iowa: 2 years; 2 years
- Kansas: 2 year; 2 years
- Kentucky: 1 year; 1 year
- Louisiana: 1 year; 1 year
- Maine: 6 years; 2 years
- Maryland: 3 years; 3 years
- Massachusetts: 3 years; 3 years
- Michigan: 3 years; 3 years
- Minnesota: 4 years; 3 years
- Mississippi: 3 years; 3 years
- Missouri: 5 years; 3 years
- Montana: 3 years; 3 years
- Nebraska: 4 years; 2 years
- Nevada: 2 years; 2 years
- New Hampshire: 3 years; 3 years
- New Jersey: 2 years; 2 years
- New Mexico: 3 years; 3 years
- New York: 3 years; 2 years
- North Carolina: 3 years; 2 years
- North Dakota: 6 years; 2 years
- Ohio: 2 years; 2 years
- Oklahoma: 2 years; 2 years
- Oregon: 3 years; 3 years
- Pennsylvania: 2 years; 2 years
- Rhode Island: 3 years; 3 years
- South Carolina: 3 years; 3 years
- South Dakota: 3 years; 3 years
- Tennessee: 1 year; 1 year
- Texas: 2 years; 2 years
- Utah: 3 years; 2 years
- Vermont: 3 years; 2 years
- Virginia: 2 years; 2 years
- Washington: 3 years; 3 years
- West Virginia: 2 years; 2 years
- Wisconsin: 3 years; 3 years
- Wyoming: 4 years; 2 years
- Clarence Borel, Plaintiff-appellee, v. Fibreboard Paper Products Corporation et al.,defendants-appellants, National Surety Corporation,intervenor-appellee, 493 F.2d 1076 (5th Cir. 1973). Retrieved from https://law.justia.com/cases/federal/appellate-courts/F2/493/1076/4552/
- Borel V. Fibreboard Paper Products Corp. (1973). Retreived from https://tshaonline.org/handbook/online/articles/jrb01