Lead Opinion
The United States Judicial Panel on Multi-District Litigation consolidated in the United States District Court for the Northern District of Ohio, Eastern Division (“the MDL court”), approximately 1,800 cases involving claims seeking dam
I.
“As a general matter, the plaintiffs in the [In re] Welding Fume[s Prods. Liab. Litig., MDL No. 1533 (‘Welding Fume’),] cases all allege that: (1) they inhaled fumes given off by welding rods; (2) these fumes contained manganese; and (3) this manganese caused them to suffer permanent neurological injury and other harm. The Welding' Fume plaintiffs name as defendants various manufacturers, suppliers, and distributors of welding rod products, and claim the defendants knew or should have known that the use of welding rods would cause [this damage]. The plaintiffs generally bring claims sounding in strict product liability, negligence, fraud, and conspiracy. The gravamen of the complaints is that the defendants ‘failed to warn’ the plaintiffs of the health hazards posed by inhaling welding fumes containing manganese and, in fact, conspired to affirmatively conceal these hazards from those engaged in the welding process.
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“This MDL court has presided over trials of several ‘bellwether cases.’ The instant case, Jerkins v. Lincoln Electric Co., was slated for a bellwether trial in July of 2010. Jerkins named as defendants, among others, four welding rod manufacturers: (1) the Lincoln Electric Company; (2) Hobart Brothers Company; (3) the ESAB Group, Inc.; and (4) Sandvik, Inc. The court refers below to these manufacturers collectively as the ‘Principal Defendants.’
“The claims Jerkins asserted against the Principal Defendants that remained for trial were: (1) [a claim under the] Alabama Extended Manufacturer’s Liability Doctrine; (2) negligent failure to warn; (3) wanton failure to warn; and (4) sale of unreasonably dangerous product. Jerkins sought both compensatory and punitive damages.
“Before trial, the Principal Defendants filed a motion for summary judgment, arguing that all of Jerkins’ claims were barred by the applicable statutes of limitations. The parties agreed that many relevant facts were not in dispute, including these:
“• Jerkins began welding in 1979.
“• Jerkins’ exposure to welding fumes was essentially continuous from 1979 through about 2008.
“• Jerkins filed suit on April 21, 2004.
“There remains a dispute of fact regarding precisely when Jerkins first began to experience symptoms of his alleged neurological injury (and, thus, when the relevant welding fume exposures — that is, those that allegedly caused his injury — occurred). There is some evidence that Jerkins suffered tremors and seizures as early as 2000, and other evidence that these symptoms did not appear until as late as 2003. When this court examined the pretrialrecord in a light most favorable to Jerkins (as it must when ruling on a motion for summary judgment), the court concluded that a reasonable jury could find Jerkins’ symptoms did not manifest until sometime within the two-year period that preceded the date he filed his lawsuit — and, thus, that a reasonable jury could find at least some of the allegedly injury-producing exposures occurred within the limitations period.
“Having reached this conclusion, however, this court was still faced with several issues related to application of the Alabama statutes of limitations. First, the Principal Defendants argued Jerkins was allowed to recover damages attributable only to the exposures he suffered during a two-year limitations period (beginning on April 21, 2002); Jerkins argued he was allowed to recover damages attributable to all of his welding fume exposures, going back to when he started welding in 1979. Second, Jerkins further argued that, even if the Principal Defendants were correct that his damages were limited to exposures he suffered during the limitations period, the applicable period was six years, not two. And finally, even if the Principal Defendants were correct that Jerkins’ damages were limited to exposures he suffered during the limitations period, the parties disagreed over whose burden it was to prove what portion of the damage[ ] occurred inside the limitations period.
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“In light of the discussion above, the undersigned now certifies the following questions to the Supreme Court of Alabama.
“1. 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.,990 So.2d 291 (Ala.2008), limit the plaintiff to recovery of damages attributable only to exposures that occurred within the limitations period?
“2. Does the six-year statute of limitations for wantonness claims adopted by the Alabama Supreme Court in McKenzie v. Killian,887 So.2d 861 (Ala.2004), 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?
“3. If the answer to question 1 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?”
(Footnotes omitted.) By order dated September 20, 2010, we accepted the certified questions, and briefs have been filed by Jerkins, the defendant welding-rod manufacturers, and amici curiae the Business Council of Alabama and the Alabama Defense Lawyers Association.
II.
At the outset, we take the liberty of rephrasing the first question as follows so that the response we give accurately states Alabama law:
1. In a case where the plaintiff seeks damages for injuries caused by long-term continuous exposure to an allegedly toxic substance, does the law of Alabama applicable before Griffin v. Unocal Corp., 990 So.2d 291 (Ala.2008), limit the plaintiff to recovery of damages for only those injuries that occurred within the limitations period?
As the MDL court correctly noted in the first certified question, the law that applies to Jerkins’s claims is the law that existed in Alabama before this Court’s decision in Griffin v. Unocal Corp.,
Under the continuous-exposure rule of Garrett, the statutory period of limitations for a continuous tort begins to run from the “date of injury,”
This Court’s pre-Griffin caselaw provides ample authority to support the proposition advocated by the defendant welding-rod manufacturers that a party alleging injury as a result of long-term exposure to a toxic substance can recover only damages attributable to injuries that occurred within the relevant limitations period.
“The determination of when the statute of limitations ought to begin to run in toxic-substance-exposure cases depends on a weighing of competing public policies. We seek in Alabama to compensate those who have been injured. Ala. Const.1901, Art. I, § 13 (‘[T]hat every person, for any injury done him ... shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.’). On the other hand, we also seek to avoid stale claims and the injustice such claims can engender. Travis v. Ziter,681 So.2d 1348 , 1355 (Ala.1996) (‘At its core, the statute of limitations advances the truth-seeking function of our justice system, promotes efficiency by giving plaintiffs an incentive to timely pursue claims, and promotes stability by protecting defendants from stale claims.’). The proper balance between these competing public policies requires a weighing....”
This Court resolved those issues in Griffin, and we are not now inclined to revisit them, nor are we inclined to accept Jerkins’s invitation to reconsider the prospective application of Griffin. His first two arguments, however, are discussed in more detail below.
Section 6-2-38(i) provides that “[a]ll actions for any injury to the person or rights of another not arising from contract and
In Cazólas, this Court considered the effect of § 6-2-30(b), Ala.Code 1975, which was enacted by the legislature following this Court’s decision in Garrett and which expressly provided that all actions arising out of exposure to asbestos were not deemed to have accrued until “the first date the injured party, through reasonable diligence, should have reason to discover the injury giving rise to such civil action.” After the Mobile Circuit Court subsequently held that 25 individuals suing based on injuries received as a result of exposure to asbestos were limited in the damages they were entitled to recover to those exposure-caused damages occurring within one year of the filing of their action, this Court reversed that judgment and held that the plaintiffs were entitled to recover for all injuries proximately caused by exposure to asbestos, stating:
“The trial court’s ruling stems from a misunderstanding of the continuing tort rule of damages. While a plaintiff in a negligence action is typically limited to damages for injuries incurred within one year of filing suit, the rule does not, as the trial court suggested, operate independently of the statute of limitations. To the contrary, it is a function of the statute of limitations. Under § [6-2-30], the plaintiff is entitled to recover all damages which proximately flowed from his injury if his action is brought within the statutory period of limitations, notwithstanding Commercial Union Assurance Co. v. Zurich American Ins. Co.,471 F.Supp. 1011 , 1015 (S.D.Ala.1979); Garrett v. Raytheon Co.,368 So.2d 516 , 521 (Ala.1979); American Mutual Liability Ins. Co. v. Agricola Furnace Co.,236 Ala. 535 , 538,183 So. 677 , 679 (1938).”
Jerkins next argues that this Court has rejected the holding reaffirmed in Garrett that “recovery for a continuous tort could be had only for those damages which occurred within the period of limitations,”
“According to Garrett v. Raytheon Co.,368 So.2d 516 (Ala.1979), and American Mutual Liability Insurance Co. v. Phillips,491 So.2d 904 (Ala.1986), the statutory period of limitations for a continuous tort begins to run from the ‘date of injury.’ The ‘date of injury’ for statute of limitations purposes is ‘the day on which the plaintiff was last exposed to the damage[].’ Garrett,368 So.2d at 520 . In this case, the last day [the plaintiff] was exposed to CCA was December 31, 1987, the date he was terminated from his job. Because [the plaintiff] filed this action on November 15, 1989, his tort claims were not barred by the statute of limitations.”
III.
The second certified question concerns the MDL court’s application of McKenzie v. Killian,
This Court recently reconsidered McKenzie in Ex parte Capstone Building Corp., [Ms. 1090966, June 3, 2011] —
“[W]e overrule McKenzie to the extent that it holds that a claim of wantonness falls within the six-year statute of limitations now found in § 6-2-34(1). We once again reaffirm the proposition that wantonness claims are governed by the two-year statute of limitations now embodied in § 6-2-38(1 ).”
We also stated, however, that, for reasons of equity and justice, our holding should not be applied retroactively so as to “deprive [affected parties] of a vested right •without granting them any opportunity to preserve it.” — So.3d at-. We accordingly provided the following instruction on how to apply our holding in Ex parte Capstone to other litigants:
“The above-discussed principles require that we not apply our ruling today retroactively so as to immediately cut off the claims of persons who have been wantonly injured within the last six years and who therefore have been entitled to rely upon the rule this Court announced in McKenzie. Thus, for a person as to whom the six-year limitation period previously announced by this Court will, under the rule announced today, expire on a date less than two years from today’s date, we conclude that it is just and equitable that the limitations period not be affected by today’s decision. For a person whose limitation period would expire more than two years from today, however, equity does not require that that person have more time to bring their action than would a party whose cause of action accrues on the date of this decision. In other words, as a result of our holding, litigants whose causes of action have accrued on or before the date of this decision shall have two years from today’s date to bring their action unless and to the extent that the time for filing their action under the previously announced six-year limitations period would expire sooner.”
— So.3d at-. Jerkins and any other Alabamians with wantonness claims now pending before the MDL court filed those claims before McKenzie was overruled by Ex parte Capstone. Applying the prospective nature of our decision in Ex parte Capstone to their cases, we accordingly conclude that a six-year period of limitations should apply to those wantonness claims. Whether the wantonness claims of other individuals are subject to the two-year or six-year statute of limitations should therefore be determined based on whether those claims were asserted pre- or post-i7x parte Capstone.
IV.
Having established in our answer to the first certified question that
“The rule has long been established that the party claiming damages has the burden of establishing the existence of and amount of those damages by competent evidence. Smith v. Richardson,277 Ala. 389 ,171 So.2d 96 (1965). The award of damages cannot be made upon speculation, and the plaintiff has the burden of offering evidence tending to show to the required degree, the amount of damages allegedly suffered. Great American Insurance Co. v. Railroad Furniture Salvage of Mobile, Inc.,276 Ala. 394 ,162 So.2d 488 (1964).”
This principle would appear to place the burden upon Jerkins to prove what damages he is entitled to recover as a result of injuries occurring within the applicable six-year limitations period; however, Jerkins argues that the defendant welding-rod manufacturers’ assertion of the statute of limitations as an affirmative defense shifts that burden to them because they must prove each element of that defense. See Lands v. Lull Int’l, Inc.,
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 plaintiffs claims have been determined to be time-barred. In Chatham v. CSX Transportation, Inc.,
V.
The MDL court certified three questions to this Court pursuant to Rule 18, Ala.
1. 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.
2. In Ex parte Capstone, this Court overruled McKenzie to the extent it held that wantonness claims are subject to a six-year statute of limitations. However, we also declined to apply that holding retroactively. A six-year limitations period therefore applies to wantonness claims filed before Ex parte Capstone was released.
3. 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.
QUESTIONS ANSWERED.
Notes
. In Holcim (US), Inc. v. Ohio Casualty Insurance Co.,
. At least one federal court applying Alabama law has recognized this principle as well. See Cloud v. Olin Corp.,
. In the quoted excerpts from both Garrett and Phillips, this Court used the term "damages”; however, it appears from the context that the term "damage” should have been used. See American Stevedores, Inc. v. Porello,
. Although Cline was a no-opinion affir-mance, Justice See wrote, concurring specially, joined by Chief Justice Nabers and Justice Stuart; Justice Smith wrote, concurring specially, joined by Justice Bolin; and Justice Harwood dissented, joined by Justices Lyons, Woodall, and Parker.
Concurrence Opinion
(concurring specially).
I concur to overrule the application for rehearing. I write separately for two reasons: (1) to offer additional comments regarding this Court’s response on original submission to the first certified question in this case and, (2) with respect to our answer to the second certified question, to address certain concerns expressed by the applicants for rehearing that are also addressed by Justice Shaw in his special writing on application for rehearing.
1. The First Certified Question
The following statement appears in American Law Reports:
“Since in a case of exposure to disease through the negligence of another, no one can know whether disease will result, and, if the exposure is to an occupational disease, the disease may develop only after months and years of repeated exposure, and even long after exposure has ceased, and, if it does develop, no one will be able to say at precisely what time it first existed nor exactly what exposure produced it, many cases, manifestly to escape the rigor and supposed general soundness of the idea that an action for negligence accrues at the time of the negligence ..., have evolved a theory whereby the continuing negligence is regarded as a single wrong against which the limitation period commences to run only from the time of cessation of the wrong, or cessation of the inhalation of the dust, gas, or fumes, or exposure to deleterious substance. ...”
On original submission in this case, however, the Court stated 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.”
Moreover, my consideration of the present ease has brought to my attention Alabama cases governed by the last-exposure rule of Garrett, which as noted by the main opinion on original submission, presaged our answer to the certified question before us, i.e., that damages are limited to those resulting from injuries occurring within the limitations period. Thus, in the case of Minyard v. Woodward Iron Co.,
“Under pertinent decisions of the Alabama courts, a recovery may be had for injury resulting from a continuous tort subject to the limitation that only damages which occurred within the period of limitations may be recovered, provided that the damages sustained within the statutory period are separable from those that are barred under the statute by the lapse of time. American Mutual Liability Ins. Co. v. Agricola Furnace Co., 236 Ala. 535 ,183 So. 677 [ (1938) ]; Howell v. City of Dothan, 234 Ala. [158],174 So. 624 [ (1937) ]; Lehigh Portland Cement Co. v. Donaldson,231 Ala. 242 ,164 So. 97 [(1935)]. Cf. Michalek v. United States Gypsum Co., 2 Cir.,76 F.2d 115 [ (1935) ]; Stornelli v. United States Gypsum Co., 2 Cir.,134 F.2d 461 [ (1943) ].”
(Emphasis added.)
In accord with this statement from Min-yard is the following statement by this Court in Garrett, itself:
“Among our cases, continuous tort cases are significant in the limitation of actions context. It was thus that in American Mutual Liability Insurance Co. v. Agricola Furnace Co.,236 Ala. 535 ,183 So. 677 (1938), this Court held that recovery for a continuous tort could be had only for those damages which occurred within the period of limitations. See also Howell v. City of Dothan,234 Ala. 158 ,174 So. 624 (1937). The cause of action was, therefore, not barred by the statute of limitations until one year after the last day on which the plaintiff was exposed to the dangerous conditions which caused the injury. Minyard v. Woodward Iron Co.,81 F.Supp. 414 (N.D.Ala.), aff'd,170 F.2d 508 (5th Cir. 1948). This was, and is, the rule in all eases concerning continuous torts in Alabama.”
It is as a consequence of such authority that I concurred in the main opinion’s response to the first certified question on original submission.
2. The Second Certified Question
I first note that I agree with Justice Shaw that the decision in Cazalas v. Johns-Manville Sales Corp.,
That said, I am reluctant to suggest merit in the defendants’ argument that the prohibition in § 95, Ala. Const. 1901, against “reviving” an “otherwise time-barred claim” placed some limit on the Court’s holding in McKenzie v. Killian,
It is correct, as the welding-rod manufacturers argue on rehearing, that McKenzie was “wrongly decided.” Nonetheless, it was decided. It thereby became the “law of the land.” And it remained so until it was overruled in Ex parte Capstone Building Corp., [Ms. 1090966, June 8, 2011] — So.3d-(Ala.2011).
This Court’s bias in favor of retroactive application of judicial decisions, based on the declaratory theory of judicial review, has been explained as follows:
“ ‘Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form does not make sense.’ American Trucking Ass’ns, Inc. v. Smith,496 U.S. 167 , 201,110 S.Ct. 2323 ,110 L.Ed.2d 148 (1990) (Scalia, J., concurring).
“Even when this Court is not applying a rule of constitutional or statutory law, but is only addressing the effects of decisional law, our strong inclination is to avoid establishing rules that are to be applied prospectively only:
“ ‘Although circumstances occasionally dictate that judicial decisions be applied prospectively only, retroactive application of judgments is overwhelmingly the normal practice. McCullar v. Universal Underwriters Life Ins. Co.,687 So.2d 156 (Ala.1996) (plurality opinion). “Retroactivity ‘is in keeping with the traditional fúñetion of the courts to decide cases before them based upon their best current understanding of the law.... It also reflects the declaratory theory of law, ... according to which the courts are understood only to find the law, not to make it’ ” 687 So.2d 156 , quoting James B. Beam Distilling Co. v. Georgia,501 U.S. 529 , 535-36,111 S.Ct. 2439 , 2443-44,115 L.Ed.2d 481 (1991).’
“Professional Ins. Corp. v. Sutherland,700 So.2d 347 , 352 (Ala.1997).”
Alabama State Docks Terminal Ry. v. Lyles,
Consistent with this declaratory theory, the Court in McKenzie made a declaration as to the meaning of an existing statute. It was not acting as a legislature.
“ ‘A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.’ ”
New Orleans Pub. Serv., Inc. v. Council of City of New Orleans,
. The decision in Gairett was based on the notion that “damage must have occurred at the time of exposure else defendant would not be liable.” Garrett,
”[I]t has been held that, even though the action was brought within the statutory period after the last exposure, the statute of limitation bars recovery except for aggravation of the condition within the statutory period. Pieczonka v. Pullman Co.,89 F.2d 353 (2d Cir.1937); Minyard v. Woodward Iron Co.,81 F.Supp. 414 (N.D.Ala.1948). These decisions in effect treat each exposure as an independent cause of action.”
(Emphasis added.) As the Ganett Court stated, "injury ... occurred on the date or dates of exposure.”
. The main opinion on original submission stated:
"Under the continuous-exposure rule of Garrett, the statutory period of limitations for a continuous tort begins to run from the 'date of injury,’368 So.2d at 520 , which is 'the last day on which plaintiff was exposed to the danger.’ Garren v. Commercial Union Ins. Co.,340 So.2d 764 , 766 (Ala. 1976).”
. Aside from the defendants’ reliance on § 95, Justice Shaw notes their reliance on caselaw:
"The welding-rod manufacturers and am-ici curiae cite ... various cases in support of their position that a change in a statute of limitations, either directly by the legislature or indirectly by this Court, cannot operate to revive a cause of action already subject to the bar of a previous limitations period. See, e.g., Johnson v. Garlock, Inc.,682 So.2d 25 , 27-28 (Ala. 1996); Ex parte State Dep’t of Revenue,667 So.2d 1372 , 1374 (Ala.1995); Crawford v. Springle,631 So.2d 880 , 881 (Ala.1993); and Lader v. Lowder Realty Better Homes & Gardens,512 So.2d 1331 , 1333 (Ala.1987).”
los So.3d at 16 (emphasis added). In point of fact, I can find no cases that support the emphasized portions of this position. Consistent with the wording of § 95, the four above-cited cases address only actual changes in statutes adopted by the legislature. None of these cases addresses or places any limitation on the ability of a court, under the declaratory theory discussed below, to declare the meaning of an already existing statute.
Concurrence Opinion
(concurring specially).
I concur to overrule the application for rehearing. However, I write specially to acknowledge the concerns expressed on rehearing by the defendant welding-rod manufacturers and amici curiae Business Council of Alabama and Alabama Defense Lawyers Association that application of the six-year limitations period set out in McKenzie v. Killian,
“In answering the second certified question, this Court acknowledged that McKenzie was wrongly decided, as it recently held in Ex parte Capstone Building Corp., [[Ms. 1090966, June 3, 2011] — So.3d - (Ala.2011) ] (overruling McKenzie). But it nonetheless applied McKenzie’s, erroneous six-year rule to plaintiffs wantonness claim—allowing him to sue for any injury he could link to an exposure that occurred in the six years prior to his commencement of suit—because he ‘filed ... before McKenzie was overruled.’ (103 So.3d at 9 , Jerkins v. Lincoln Elec. Co.,103 So.3d 1 (Ala. June 30, 2011).) In so ruling, the Court looked only to the question of how Capstone should be applied to a case filed before it was decided, not to the question posed by the federal court as to how McKenzie should be applied to claims that arose before it was decided.
“The Court thought it was necessary to apply McKenzie’s rule because of a concern that applying a two-year limitations rule would deprive plaintiff of a ‘vested right’ in a claim that would have been timely under McKenzie. But the Court apparently overlooked the fact that many of plaintiffs alleged exposures occurred more than two years before the decision in McKenzie and were thus already stale under the limitations period that was applicable before McKenzie was decided. It thus did not address whether McKenzie resurrected claims based on those older exposures, notwithstanding defendants’ own vested rights in the repose afforded to them under the previously applicable two-year limitations period.
“Defendants seek rehearing solely as to this narrow issue, and ask the Court to conclude that McKenzie’s rule should only apply as to claims that were not already stale under the previously applicable two-year limitations period on the date McKenzie was decided. Because the Jerkins decision did not specifically address this issue, defendants respectfully submit that the Court overlooked or misapprehended significant points of law and fact, warranting rehearing of that issue. See Ala. R.App. P. 40(b).”
(Footnote omitted.)
As I understand the welding-rod manufacturers’ argument, they do not challenge this Court’s answer to the first certified question, which was summarized in the instant opinion on original submission as follows: “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.”
Amici curiae argue generally that any application of McKenzie so as to revive a wantonness claim that would otherwise be subject to the bar of the pre-McKenzie two-year limitations period would be unconstitutional. They state:
“[F]or example, a plaintiff whose cause of action for wantonness accrued on March 4, 2002, but who had not yet filed a claim for that tort when McKenzie was decided on March 5, 2004, had already allowed his right to assert that claim [to] lapse. At that point, the defendant had a vested right in its limitations defense.”
(Emphasis in original.)
The welding-rod manufacturers and ami-ci curiae cite Ala. Const. 1901, art. IV, § 95, and various cases in support of their position that a change in a statute of limitations, either directly by the legislature or indirectly by this Court, cannot operate to revive a cause of action already subject to the bar of a previous limitations period. See, e.g., Johnson v. Garlock, Inc.,
However, I do not understand this Court’s opinion on original submission as constituting authority for the general proposition that an otherwise time-barred wantonness claim may be revived by the application of the six-year limitations period set out in McKenzie. With respect to the welding-rod manufacturers’ argument that the applicable period of recovery for damages could not constitutionally extend back more than two years from the date Jerkins filed his action, I note that there appears to be authority to the contrary. In Cazalas v. Johns-Manville Sales Corp.,
With respect to the arguments of amici curiae that this Court has inadvertently held that otherwise barred claims may be revived, I note that the United States Judicial Panel on Multi-District Litigation consolidated in the United States District Court for the Northern District of Ohio, Eastern Division (“the MDL court”), in its certification, provided this Court with a limited procedural background of the mul-ti-district litigation, as well as certain relevant, undisputed facts. The specific questions certified were framed under and based upon the facts of Jerkins’s case, which I understood to be representative of other Alabamians with wantonness claims now pending before the MDL court. Jerkins’s action was filed after this Court’s decision in McKenzie, and his alleged exposure to welding fumes was essentially continuous from 1979 through about 2008. Applying the limitations period set out in McKenzie, see Crawford,
In sum, the concerns expressed on rehearing, although in my view worthy of serious consideration, are outside the scope of the specific questions certified to this Court and thus must await resolution another day.
Concurrence in Part
(concurring in part and dissenting in part).
I concur in those parts of the majority opinion that do not rely on the holding and rationale of Ex parte Capstone Building Corp., [Ms. 1090966, June 3, 2011] — So.3d - (Ala.2011). With respect to Part III of the opinion, which does rely on Ex parte Capstone, I respectfully dissent.
Rehearing
On Application for Rehearing
APPLICATION OVERRULED. NO OPINION.
MURDOCK and SHAW, JJ., concur specially.