Plaintiffs can’t sue for each onset of asbestos-related cancer

An asbestos plaintiff with a previous history of asbestos related cancer can’t sue for a later onset of asbestos-related cancer, the Michigan Court of Appeals said.

The decision involved an interpretation of the Michigan Supreme Court’s 1986 decision in Larson v Johns-Manville, an asbestos-specific decision that allows a plaintiff to sue for either an asymptomatic case of asbestosis and the fear of developing cancer, or wait and see if he develops lung cancer, said Ogne, Alberts & Stuart, PC, attorney Michael A. Ross.

“What Larson said was that if you get asbestosis, or something that is basically asymptomatic, we’re not going to start the clock ticking,” Ross said. “We’re going to give the plaintiff the option: he can sue for asbestosis and the possibility that he might get a malignancy later, or he can wait and see if he develops a malignancy, and therefore the clock won’t start ticking.”

The plaintiff in Falk v All-Acquisition Corp. et al didn’t sue for a 1993 diagnosis of asbestosis. Nor did he sue when he developed lung cancer in 1999.

“That’s when the clock started,” Ross said.

When his lung cancer returned in 2006, he did sue. During his deposition, he testified that he was told his earlier onset was asbestos-related. The trial court dismissed the case.

On appeal, the plaintiff argued that Larson:

created a rule that regardless of prior asbestos-related diagnoses, the occurrence of any new asbestos-related disease constitutes a new accrual of a cause of action.

In an unpublished decision, the Court of Appeals disagreed:

We do not read Larson quite so broadly. Instead, we read Larson as holding that individuals who develop non-cancerous asbestos-related diseases and who accordingly have concerns that they will develop cancer need not bring suit relating to those less serious conditions and may instead wait to see if they develop cancer, at which time they would have the right to initiate their claim even though the time since the non-cancerous diagnosis exceeded the statute of limitations.

The Larson Court … fashioned a tolling period unique to asbestos cases, which allowed for a cause of action when a plaintiff suffered from asbestosis, and a new cause of action years later when the separate and independent disease of cancer developed.

That doesn’t mean, the court ruled, that the plaintiff can sue for each onset of the same disease.

[T]hese concerns are not present here, as the disease plaintiff developed in 1999 was itself cancer. Thus, when his 1999 cancer was diagnosed, his cause of action for asbestos-related injury accrued. There was no need for him to wait and see if he would develop cancer at a later point in time; he had already developed it. Consequently, the concerns set out in Larson do not arise and the 1999 cancer constituted the sole accrual date for cancer caused by plaintiff’s asbestos exposure. Accordingly, plaintiff’s claims are barred by the three-year statute of limitations.

Ross said the “two-disease” policy, in practice, allows plaintiffs to still receive something while not having to gamble on whether they later develop a more serious disease, like mesothelioma. Most asbestosis cases settle for a fraction of what the malignancy cases do.

“This way, they can funnel as much money to the malignancies, while not putting the plaintiff in a situation where, as soon as he gets anything, even if it’s asymptomatic, he has to go to court or lose his cause of action,” Ross said.

So Falk’s 1993 asbestosis diagnosis, was irrelevant, but he should have sued in 1999, when he was first diagnosed with asbestos-related lung cancer.

“He had three diseases,” he said. “In 1993, he had asbestosis, so, pursuant to Larson, he didn’t sue. He waited. Then in 1999, he got lung cancer. That’s when you’re supposed to sue.”

Ross said the facts of this case leave open the question of what would happen if Falk didn’t know his earlier cancer was asbestos-related, partially because Larson was based on the common law discovery rule, which the Michigan Supreme Court abrogated in Trentadue v Buckler Automatic Lawn Sprinkler Co.

“It’s an open question,” Ross said. “The general rule is that subsequent damages from the same exposure don’t start the clock ticking over again. They would be out of luck unless they could establish that they had no idea that [the earlier] diagnosis was asbestos-related.”

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