PHYLLIS H. KISER, EXECUTRIX OF THE ESTATE OF ORVIN H. KISER, SR., DECEASED v. A.W. CHESTERTON CO., ET AL.
Record No. 120698
Supreme Court of Virginia
January 10, 2013
Present: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and Powell, JJ., and Lacy, S.J.
UPON A QUESTION OF LAW CERTIFIED BY THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
The United States Court of Appeals for the Third Circuit entered an order of certification requesting that this Court exercise jurisdiction pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, and answer the following question of law:
Whether, under
Va. Code § 8.01-249(4) , 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.
(Numeral designators added).1
We hold that when enacting
RELEVANT FACTS AND PRIOR PROCEEDINGS
The pertinent facts are not in dispute and are taken from the opinion in Kiser v. A.W. Chesterton Co., 770 F.Supp.2d 745 (E.D. Pa. 2011), and the certification order in Kiser v. A.W. Chesterton Co., Rec. No. 11-1986 (3d Cir. March 26, 2012). Orvin H. Kiser, Sr. worked at a “DuPont” plant in Waynesboro, Virginia from 1957 to 1985, during which time he was exposed to asbestos. After being diagnosed with nonmalignant pleural thickening and asbestosis in 1988, he filed a timely suit in the United States District Court for the Western District of Virginia in 1990 against numerous asbestos manufacturers, sellers, and distributors, seeking damages for his employment-related exposure and resulting medical condition. In 2010, that action was voluntarily dismissed.
In November 2008, Kiser was diagnosed with mesothelioma, an asbestos-related malignant cancer of the lung lining. He died the following March. Acting as executrix of her deceased husband‘s estate, Phyllis H. Kiser (the Executrix), filed a wrongful death action in October 2010 in the United States
The various defendants filed motions to dismiss, asserting that the applicable statute of limitations barred the Executrix’ action. Id. at 747. The defendants asserted that, 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 limitations set forth in Code § 8.01-243(A). Id. The Executrix, however, maintained that Code § 8.01-249(4) “abolished the indivisible cause of action theory and that a new statute of limitations was triggered when . . . Kiser was diagnosed with mesothelioma” in 2008. Id.
Citing Virginia case law that recognized the indivisible cause of action principle, the district court held that
The Executrix appealed to the United States Court of Appeals for the Third Circuit. In its certification order, the Third Circuit stated that the timeliness of the Executrix’ cause of action “turn[ed] on an unresolved question of Virginia law: whether the indivisible cause of action theory applies to distinct and independent asbestos-related diseases stemming from the same exposure to asbestos.” While the Third Circuit recognized Virginia‘s adherence to the indivisible cause of action rule in personal injury cases, it noted the absence of a ruling from this Court regarding the application of that principle to asbestos-exposure cases after the enactment of
Rule 5:40(a) requires that a certified question be “determinative” in “any proceeding pending before the certifying court.” The certified question is determinative because whether the Executrix’ wrongful death action is time-barred turns on whether the action accrued at the time of Kiser‘s asbestosis diagnosis or at the time of his mesothelioma diagnosis. Accordingly, we accepted the certified question of law by order entered June 8, 2012.
ANALYSIS
The certified question focuses specifically on
Locke v. Johns-Manville Corp., 221 Va. 951, 957-58, 275 S.E.2d 900, 905 (1981). Because a cause of action does not arise until an injury to a plaintiff can be shown, see Louisville & Nashville Railroad Co. v. Saltzer, 151 Va. 165, 170-71, 144 S.E. 456, 457 (1928), the relevant question for purposes of the statute of limitations was: “When was the plaintiff hurt?” Locke, 221 Va. at 958, 275 S.E.2d at 905.
In a cause of action for exposure to asbestos resulting in mesothelioma, the answer to that question depended on competent medical evidence pinpointing the precise date the cancer first existed, which would be the first date it was capable of causing injury. Id. at 959, 275 S.E.2d at 905. That determination, however, was not tantamount to employing a “discovery rule, which triggers the running of the statute only when the injury is discovered or should have been discovered in the exercise of reasonable diligence.” Id. As the Court recognized, the adoption of such a rule was a decision for the General Assembly to make. Id. at 959, 275 S.E.2d at 905-06.
In 1985, the General Assembly did just that by adding subsection 4 to
The cause of action in the actions herein listed shall be deemed to accrue as follows:
. . . .
4. In actions for injury to the person resulting from exposure to asbestos or products containing asbestos, when a diagnosis of asbestosis, interstitial fibrosis, mesothelioma, or other disabling asbestos-related injury or disease is first communicated to the person or his agent by a physician. However, no such action may be brought more than two years after the death of such person[.]
With the enactment of subsection 4, the question asked in Locke, when was a plaintiff hurt by exposure to asbestos, was no longer relevant to determining the accrual date of that particular cause of action. Instead, the cause of action accrued, and thus the statute of limitations began to run, when a physician first communicated a diagnosis of one of the specified diseases or of another “disabling asbestos-related injury or disease” to a plaintiff. Id.
The second pertinent principle that existed in 1985 when the General Assembly added subsection 4 to
[a] cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. The mere multiplication of grounds of negligence alleged as causing the same injury does not result in multiplying the causes of action. The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear. The thing, therefore, which in contemplation of law as its cause, becomes a ground for action, is not the group of facts alleged in the declaration, bill, or indictment, but the result of these is a legal wrong, the existence of which, if true, they conclusively evince.
Id. at 321 (internal quotation marks omitted) (first emphasis added). When a plaintiff “suffer[s] but one actionable wrong [or] a single wrongful invasion of a single primary right [such as] the right of bodily safety,” the plaintiff is “entitled to but one recovery.” Id.
This Court has long applied this common law principle. In Street v. Consumers Mining Corp., 185 Va. 561, 39 S.E.2d 271 (1946), we stated:
[A]s a general rule, where an injury, though slight, is sustained in consequence of the wrongful or negligent act of another and the law affords a remedy therefor the statute of limitations attaches at once. It is not material that all the damages resulting from the act should have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. The act itself is regarded as the ground of the action and is not legally severable from its consequence. The statute then begins to run, and not from the time of the damage or discovery of the injury.
Id. at 566, 39 S.E.2d at 272 (internal quotation marks omitted).
Thus, a statute of limitations usually commences to run when injury is incurred as a result of a wrongful act. By enacting
If the “act itself is regarded as the ground of the action,” and thus cannot be “legally severable from its consequence,” Street, 185 Va. at 566, 39 S.E.2d at 272, a single wrongful act may not give rise to two independent causes of action. See Shortt v. Hudson Supply & Equip. Co., 191 Va. 306, 310, 60 S.E.2d 900, 902 (1950) (A plaintiff injured in an automobile accident “had but a single claim – an indivisible cause of action for damages for his personal injuries arising out of the collision.“); Carter v. Hinkle, 189 Va. 1, 4, 52 S.E.2d 135, 136 (1949) (“[A]s a general rule a single cause of action cannot be split into several claims and separate actions maintained thereon.“). The indivisible cause of action rule governs how many causes of action arise from a single wrongful act that violates a single right of a plaintiff; the rule applies to actions based on injury to the person regardless of how the person was
There is one notable exception to this rule: a single wrongful act may give rise to separate causes of action if that wrongful act violates distinct rights. In Carter, the injured plaintiff filed an action for personal injuries after earlier filing an action for property damage caused by an automobile accident. 189 Va. at 3, 52 S.E.2d at 136. Recognizing the general rule, the Court nevertheless noted that “the history of the common law shows that the distinction between torts to the person and torts to property has always obtained.” Id. at 4-6, 52 S.E.2d at 136-37 (internal quotation marks omitted). The Court stated that two actions could be maintained when two distinct rights, the “right of personal security and the right of property,” were invaded by a single wrongful act: ” ‘If two separate and distinct primary rights could be invaded by one and the same wrong, or if the single primary right should be invaded by two distinct and separate legal wrongs, in either case two causes of action would exist.’ ” Id. at 6-7, 52 S.E.2d at 138 (quoting John N. Pomeroy, Pomeroy‘s Code Remedies § 350 (4th ed. 1904)).
Although we have never addressed the indivisible cause of action principle in regard to asbestos exposure causes of action since the enactment of
The Court presumes that no change to the common law was intended, and abrogation only occurs “when the legislative intent to do so is plainly manifested.” Id. (internal quotation marks omitted). And, “even where a statute‘s purpose is to abrogate the common law, such statute is ‘to be strictly construed and not to be enlarged in [its] operation by construction beyond [its] express terms.’ ” Id. at 45, 704 S.E.2d at 581 (quoting Isbell, 273 Va. at 613, 644 S.E.2d at 75) (alterations in original).
We begin with the language of the statute at issue.
The cause of action . . . . [i]n actions for injury to the person resulting from exposure to asbestos or products containing asbestos [shall be deemed to accrue] when a diagnosis of asbestosis, interstitial fibrosis, mesothelioma, or other disabling asbestos-related injury or disease is first communicated to the person or his agent by a physician.
The particular “cause of action” addressed in subsection 4 is “for injury to the person resulting from exposure to asbestos or products containing asbestos.”
The Executrix contends, however, that the “separate listing of the different asbestos-related diseases clearly and plainly evinces the General Assembly‘s intent to treat each distinct disease as a separate cause of action.” Under this reading, the prepositional phrase in
By listing separate diseases in the disjunctive, the General Assembly merely indicated that the diagnosis of any one disease triggers the statute‘s application, a perfectly sensible decision given the commonality of the listed diseases in asbestos exposure cases.6 Moreover, whatever its purpose, the itemization of distinct diseases does not alter the opening language of the statute, which makes clear that it addresses the accrual of “[t]he cause of action [i]n actions for injury to the person resulting from exposure to asbestos or products containing asbestos.”
The Executrix also relies on the dissenting opinion in Joyce v. A.C. & S., Inc., 785 F.2d 1200 (4th Cir. 1986) (Swygert, J., dissenting). But there, Judge Swygert argued that separate diseases caused by asbestos exposure “represent rights of action which mature independently
Several other factors also support our holding that the General Assembly, by enacting
In amending
In enacting subsection 4, the General Assembly stated that it was “[a]n Act to amend and reenact
Similarly, every other enactment clause for amendments to
In sum, nothing in
“express language or . . . necessary implication” that the General Assembly intended
CONCLUSION
We are well aware of the quandary confronting a plaintiff who has been diagnosed with an asbestos-related disease in deciding when to file an action under the current statutory and common law regime. We are also aware that numerous jurisdictions, in noting the quandary, have permitted separate causes of action for malignant and non-malignant asbestos-related diseases.7 But we have repeatedly said that, in Virginia, remedying such policy-related problems is the role of the General Assembly, not ours.8 See, e.g., Shipman v. Kruck, 267 Va. 495, 503, 593 S.E.2d 319, 323 (2004) (refusing to adopt a discovery rule by judicial decision and noting that it is “the role of the General Assembly, not the judiciary, to change a rule of law that has been relied upon by bench and bar for so long“). The indivisible cause of action rule has existed in the Commonwealth for decades, and a decision that causes of action for asbestos exposure are not subject to the rule must come from the General Assembly, not the Court.
The certified question of law asks:
Whether, under
Va. Code § 8.01-249(4) , 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.
(Numeral designators added). For the reasons stated, we answer that question in the negative with respect to alternative [I] and in the affirmative with respect to alternative [II].
Certified question alternative [I]
answered in the negative.
Certified question alternative
[II] answered in the affirmative.
JUSTICE MILLETTE, with whom JUSTICE MIMS joins, dissenting.
Today, the majority holds that “by enacting
As the majority demonstrates, the statute in question indeed creates a discovery rule.
Thus, we are left to answer the question posed by the Third Circuit without guidance from
We should therefore turn to the common law governing when a cause of action accrues. The terms cause of action and right of action are often confused in legal writing and, as the majority points out, they are not synonymous. We have previously held that a cause of action accrues when the harm occurs, and not before:
The essential elements of a good cause of action, whether based on an alleged breach of contract or on a tortious act, are a legal obligation of a defendant to the plaintiff, a violation or breach of that right or duty, and a consequential injury or damage to the plaintiff. In the absence of injury or damage to a plaintiff or his property, he has no cause of action and no right of action can accrue to him.
Caudill, 210 Va. at 13, 168 S.E.2d at 259. In Locke, 221 Va. at 958, 275 S.E.2d at 905, we held that when medical evidence showed that a cancerous mesothelioma tumor began its development not contemporaneously with the asbestos exposure but some time later, the development of the cancer and not the exposure triggered the accrual of the cause of action. The relevant question, we reiterated, was, “When was the plaintiff hurt?” Id.
This rule as to the accrual of the cause of action was not modified by
The general rule for accrual of a right of action in Virginia, set forth in
In every action for which a limitation period is prescribed, the right of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person . . . and not when the resulting damage is discovered, except . . . where otherwise provided [in another] statute.
Id. This statute was amended from an earlier version that erroneously used the term “cause of action” as opposed to “right of action.” See
There is no statutory law or common law rule in Virginia requiring that distinct asbestos-related diseases constitute the same cause of action.1 When, as in the case of asbestosis and mesothelioma, there are two distinct and unrelated harms that accrue at different times, the plaintiff may have two separate causes of action.
A considerable portion of the majority opinion addresses the indivisible cause of action rule. A common articulation of this principle is:
where an injury, though slight, is sustained in consequence of the wrongful or negligent act of another and the law affords a remedy therefor the statute of limitations attaches at once. It is not material that all of the damages resulting from the act should have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date.
Street v. Consumers Mining Corp., 185 Va. 561, 566, 39 S.E.2d 271, 272 (1946) (internal quotation marks omitted). This principle in fact addresses not the accrual of the cause of action but rather the accrual of a right of action, the commencement of the statute of limitations, and the possibility of later claims being barred by issue or claim preclusion.2 The indivisible cause of action rule is a principle of res judicata or estoppel (issue or claim preclusion), and does not influence whether the substantive cause of action exists. See Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 117-18 (D.C. Cir. 1982).
The law may indeed provide other bars to subsequent actions arising from the same act or set of acts, depending upon the details of the record and the nature of the previous action. That is a different question than whether the cause of action exists. Under Virginia law, it does. The simplest instance can be seen in the case of an individual who was diagnosed with mild asbestosis and chose not to bring suit. The mere diagnosis of asbestosis should not serve as a bar to a later suit for mesothelioma, upon its discovery. See id. If the second harm has not yet occurred upon the accrual of the first right of action, then the plaintiff cannot possibly bring them in the same action. “A disease like this cancer must first exist before it is capable of causing injury. To hold otherwise would result in the inequity of barring the mesothelioma plaintiff‘s cause of action before he sustains injury.” Locke, 221 Va. at 959, 275 S.E.2d at 905. When the harm at issue is cancer to the lining of the lungs, it is illogical to say that the cause of action accrues before the cancer has even developed. Since the discovery rule under
Further bolstering the argument for two causes of action is the fact that, in multiple-exposure cases such as this, we do not know at the onset of the suit whether the relevant exposures that caused the two harms arose from the same act or set of acts.3 To so
Additionally, given that the first cause of action for asbestosis injury was voluntarily dismissed in the instant case, the effect of issue and claim preclusion mechanisms is dependent on the record and far beyond the scope of the certified question before the Court today. The ample attention given by the majority to the indivisible cause of action rule is premature.
Our holding in Locke that the cause of action accrues at the time of the harm rather than at the time of exposure logically makes Virginia a “two-disease rule” state, in the common shorthand of asbestos litigation. Beyond Locke, however, there are a multitude of reasons why the Commonwealth should recognize a two-disease rule in asbestos cases.
First, asbestosis and mesothelioma are medically discrete and independent diseases. They develop in different parts of the body and follow dramatically different courses. Asbestosis is a non-malignant disease of the lung, also known as interstitial fibrosis. 5 Richard M. Patterson, Lawyers’ Medical Cyclopedia of Personal Injuries & Allied Specialties § 33.54, at 33-83 (6th ed. repl. ed. 2011). The disease gradually worsens, particularly with continued exposure to asbestos, generally resulting in decreased pulmonary function and increased difficulty breathing over time. Id. at 33-83 through 33-84. Mesothelioma is a malignant cancer of the pleura (lining) of the lung or, more rarely, of the peritoneum (abdominal cavity). Id. at 33-85 through 33-86. It has a significant latency period, the exact time period of which is disputed by experts, but appears from current medical knowledge to average approximately thirty-five years. Id. at 33-85. Mesothelioma has been documented not only in asbestos workers but also in individuals who have had low-level exposure through, for example, living in asbestos mining towns or being married to an asbestos worker who carried fibers home on his or her clothes. Id. at 33-85 through 33-86. The disease is virtually always fatal within two years of diagnosis. Id. at 33-86.
Virginia courts, like many jurisdictions, acknowledge these distinctions by treating the diseases differently at trial. We have required plaintiffs in asbestosis cases to show repeated or prolonged exposure to asbestos. We have cited with approval a Georgia case that stated that asbestosis, “by definition, results only from an overexposure to asbestos.” Norfolk S. Ry. v. Rogers, 270 Va. 468, 485, 621 S.E.2d 59, 69 (2005) (internal quotation marks and citation omitted). See also Norfolk & W. Ry. v. Ayers, 538 U.S. 135, 155-56 (2003) (“Asbestosis is a chronic, painful and concrete reminder that [a plaintiff] has been injuriously exposed to a substantial amount of asbestos.“) (internal quotation marks and emphasis omitted) (emphasis added).
On the other hand, we have recognized that a lesser degree of exposure may be sufficient to prove causation in mesothelioma cases. We considered a case in which a shipyard pipe-coverer developed mesothelioma and died after cutting and installing insulation products which contained asbestos, a process that created visible dust which he inhaled. Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 143-44, 413 S.E.2d 630, 639 (1992). The decedent had not been able to identify the brand or brands of asbestos products that he worked with prior to his death. We nonetheless determined that the circumstantial evidence that an asbestos product known as “Kaylo,” manufactured by the defendant, was a prominently used product on the ship, combined with “medical evidence reveal[ing] that very limited exposure to asbestos fibers can cause mesothelioma,” provided sufficient evidence to support a jury verdict against the manufacturer. Id. at 143, 413 S.E.2d at 639.
Indeed, the only certain connection that these two diseases have is that they both stem from exposure to asbestos. In the case at bar, the defendants are entirely distinct from those in the original asbestosis suit. Given our current state of medical knowledge, however, it is not even possible to determine with certainty which disease stemmed from what asbestos exposure(s). See Ford Motor Co. v. Boomer, 285 Va. 141, 736 S.E.2d 724 (2013) (this day decided).
Not all victims of asbestosis develop mesothelioma, but given their generally substantial periods of asbestos exposure, some do. And this underscores the fundamental unfairness of deeming only a single cause of action to exist for all asbestos exposure cases: while an individual who developed mesothelioma from only minimal asbestos exposure not sufficient to develop asbestosis has a recourse in the law for his or her mesothelioma diagnosis because that individual has not suffered a previous injury, an individual who first developed asbestosis due to his or her longer exposure to asbestos can recover for the effects of his non-malignant asbestosis but has no recourse in the law for his second, likely fatal disease. As explained by the majority, the fundamental purpose of the subsections of
The effect of today‘s holding, however, is to contract that right to remedies for mesothelioma plaintiffs when the victims were previously diagnosed with asbestosis. The relatively short latency period for asbestosis, the applicable two-year statute of limitations for personal injury, and the substantially longer latency period for mesothelioma virtually guarantee that individuals who have asbestosis will be barred from recovering damages should they subsequently develop mesothelioma.
Such a holding is contrary to the purpose behind the creation of a discovery rule. Indeed, the enactment of the discovery rule provisions in
Certainly, it is not the case that two asbestos-related diseases could never constitute the same cause of action. That is not the question before us. Should medical knowledge evolve to show that the harm occurred simultaneously, for example, the injuries would constitute the same cause of action. The Tenth Circuit put it well in a similar question certified to the Supreme Court of Colorado:
We recognize that the relationship between asbestos-related pleural disease and asbestosis is a factual question. Because this is an appeal from a summary judgment and there is conflicting evidence in the record, it must be assumed that asbestosis is separate and distinct from and not a complication of asbestos-related pleural disease. We thus respectfully request the Colorado Supreme Court to focus on the narrow legal issue of whether a statute of limitations begins to run anew for a separate,
distinct, and later-manifested disease caused by exposure to asbestos.
Miller v. Armstrong World Indus., Inc., 817 P.2d 111, 113 (Colo. 1991) (quoting from the certification order and finding that the discovery of one separate asbestos related disease does not trigger the statute of limitations on a yet undiscovered disease).
Ever-evolving, fact-specific inquiries such as this are best left to expert testimony at trial. Given sufficient evidence to create an issue of fact, however, as to whether the disease is distinct and not a mere complication of an earlier diagnosis, and provided that the other requisite elements have been pled, courts should consider mesothelioma as a distinct harm and a distinct cause of action.
Finally, permitting distinct causes of action would join a nationwide trend toward adopting a two-disease rule in the interest of equity and judicial economy. See Hagerty v. L&L Marine Servs., Inc., 788 F.2d 315, 320 (5th Cir. 1986) (“At least in the toxic chemical or asbestos cases, the disease of cancer should be treated as a separate cause of action for all purposes. There should be no cause of action or beginning of the running of limitations until the diagnosis of the disease. . . . A prior but distinct disease, though the tortfeasor may have paid reparations, should not affect the cause of action and damages for the subsequent disease.“); Wilson, 684 F.2d at 120 (D.C. Cir. 1982) (“Concern for judicial economy also influences our decision. [I]f [an injured] person is told that another, more serious disease may manifest itself later on, and that a remedy in court will be barred unless an anticipatory action is filed currently, there will be a powerful incentive to go to court [and the] plaintiff‘s representative . . . may be motivated to protract and delay once in court so that the full story of his client‘s condition will be known before the case is set for trial.“); Fearson v. Johns-Manville Sales Corp., 525 F.Supp. 671, 674 (D.D.C. 1981) (“Under defendants’ theory, plaintiffs would be forced to come into Court as soon as any minimal problem is diagnosed and seek speculative damages as to any other injuries that might develop in the future. Plain common sense teaches that the law was never meant to be so unreasonable.“); Miller, 817 P.2d at 113 (concluding, in answer to a certified question of law from the United States Court of Appeals for the Tenth Circuit, that one asbestos-related diagnosis does not trigger the statute of limitations for a distinct asbestos-related disease); Sheppard v. A.C. & S. Co., 498 A.2d 1126, 1134 (Del. Super. 1985) (“[L]atent disease cases justify a change in our perception and application of the statute of limitations to the end that a plaintiff with the misfortune of contracting more than one asbestos-related ailment over a long period of time not be without a remedy for the later and generally more serious and inherently unknowable claims.“); Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517, 529-30 (Fla. Dist. Ct. App. 1985) (concluding that, because damages for enhanced cancer risk were not part of plaintiff‘s first award, a subsequent cause of action for damages due to cancer caused by asbestos was not barred); Va Salle v. Celotex Corp., 515 N.E.2d 684, 687 (Ill. App. Ct. 1987) (“To preclude recovery based upon the statute of limitations under these factual circumstances would . . . mean that at some past moment in time, unknown and inherently unknowable even in retrospect, [plaintiff] was charged with knowledge of [asbestos-originating lung cancer].“) (internal quotation marks and citations omitted); Wilber v. Owens-Corning Fiberglas Corp., 476 N.W.2d 74, 78 (Iowa 1991) (“The manifestation of asbestosis does not trigger the running of the statute of limitations on all separate, distinct, and later-manifested diseases which may have stemmed from the same asbestos exposure.“); Smith v. Bethlehem Steel Corp., 492 A.2d 1286, 1296 (Md. 1985) (“[T]he starting point for Pierce was the medical evidence that lung cancer was a latent disease, separate and distinct from asbestosis. . . . Our review of Pierce convinces us that the fact that the claimant there had not previously sued in tort for damages for asbestosis was not a factor material to the holding.“); Larson v. Johns-Manville Sales Corp., 399 N.W.2d 1, 9 (Mich. 1986) (“The alternatives facing this Court are . . . to force all asbestosis victims . . . to sue for the possibility of contracting cancer, or . . . to allow these victims to wait until the discoverable appearance of cancer before bringing suit. The
Judicial tribunals across the nation have faced a common question of equity: how to provide proper remedies for a generation of workers who are facing devastating diagnoses of latent asbestos-related diseases not previously accommodated by our legal system. In the absence of a clear legislative mandate, this Court has a duty to clarify how our long-standing principles of law apply to victims of asbestosis and mesothelioma. Our common law cause of action principles provide for distinct causes of action, and such an outcome supports both equity and judicial economy.
For these reasons, I would answer the certified question of law in the affirmative with respect to alternative [I] and in the negative with respect to alternative [II].
I respectfully dissent.