Owens-Corning Fiberglas Corp. v. Henkel

SCHWELB, Before FARRELL and REID, Judges. Associate SCHWELB, Judge: Associate appeals These consolidated arise from damages personal actions to recover in- juries allegedly resulting from asbestos ex- posure. plaintiffs1 The three male sued Owens-Coming Fiberglas Corporation (OCF) and several other manufacturers products,2 and distributors of asbestos each plaintiff claiming that he contracted asbestosis or cancer from his occupational exposure to plaintiffs’ asbestos. The male damages wives3 sued for for loss con- Following lengthy sortium. trial which presented phases peri- in three over a od during of several months the summer jury and fall of awarded the plaintiffs compen- a total of million in $15.5 satory damages. That amount was subse- quently judge ap- remitted the trial proximately million. $13 appeal, On OCF contends that the trial judge by rejecting erred its claim that the plaintiffs peremptory exercised their chal- lenges during jury racially in a selection dis- criminatory challenges manner. also admission, objection, over of certain tending “state-of-the-art” evidence to show dangerous that the characteristics of asbes- community tos were known to the scientific early Finally, as the 1940’s. OCF claims that the Henkels’ action is time-barred. We affirm.

I. THE “BATSON” CLAIM Perry, Larry Mark A. with whom L. Simms, brief, Washington, was on the OCF asserted in the trial court coun- appellant. plaintiffs sel for the engaged racial dis- Henkel, Stine, Henkel, Stine, Marilyn Shirley 1. D. Paul Hubert and John 3. and Laura during Stine Phares. Mr. died the trial of this Phares. case. Kentucky, Batson 476 U.S. S.Ct. 2. The defendants other than OCF settled with the 90 L.Ed.2d 69 plaintiffs parties appeal. and are not to this 1719, and Court described peremptory of his 106 S.Ct. at crimination the exercise challenges. judge “timely.” trial found no dis- objection Id. at has “plaintiffs’ counsel not, however, crimination because at 1725. The did S.Ct. Court explanation respect articulated a neutral identify stage proceedings precise jurors against [whom] to each of the four ... type litigant must raise this which a peremptory exercised objection. strikes,” judge and because the credited question as to This court first addressed explanations. appeal, On counsel’s motion Tursio timeliness of Batson claims that in of certain statistical (D.C.1993). States, evidence, 634 A.2d 1205 reject- United judge should have other held, Tursio, ostensibly conformity with Bat- pretextual ed nondiscrimi- we attorney natory justifications plaintiffs’ itself, defendant’s Batson motion son provided the strikes. do not reach for We timely because it was made before the was however, issue, the merits of the for OCF’s Although at jury was sworn. Id. 1209-10. objection untimely, and that was we conclude question presented we were not with the it was waived. motion have been untime whether the would ly jury if it had been made after the was 1,1992. jury July on The was selected sworn, apparent approval with a we cited dire, During interposed voir counsel OCF jurisdictions number of cases from other objection any plaintiffs’ peremp no to of the question that in the affirma tory jury answered challenges. had After the been (citations omitted). selected, attorney immediately Id. also OCF’s turned tive. We stated procedural relating object to issues to his preferable adver to “[i]t that counsel sary’s statement, opening and he said noth discriminatory pattern emerg as soon as ing alleged at all about Batson or about at es....” Id. 1210. racial discrimination in the selection of the Tursio, close, very We have come since

jury. By objection, failing any to raise ruling definitively claim that Batson must indicated, thus passively, albeit that it was presented be the administration of the before jury. ju Accordingly, satisfied the with the jurors. In oath the Baxter v. United sworn, plaintiffs’ attorney rors were and the States, (D.C.1994), 640 A.2d 714 on the au presented opening his statement. At the Tursio, thority of we sustained the timeliness statement, ju opening conclusion of the objection of an which was made after voir day. rors were dismissed for the completed jury had dire been but before the following morning, attorney, On the ruling, at 3. In so was sworn. Id. 717 n. opening in of proceeding lieu state- however, in importance, we reiterated “the ment, claimed for the first time that kind, judge alerting to the cases plaintiffs ju- prospective had stricken white pattern allegedly emerges, issue soon as plaintiffs argued rors because of The race. meaningful can be made.” so that a record judge, the trial and continue to maintain recently, Safeway Id. in Stores v. More objection untimely appeal, on that this was (D.C.1994), Buckmon, a case in 652 A.2d 597 and that it should have been before the made jury objection first raised agree. was sworn and which a Batson was seated. We sworn, jury we stated that “a was Batson, explicitly Supreme In Court ruling trial court of untimeliness would seem objection contemplated any that valid based pre of the difficulties appropriate on racial in the exercise of discrimination delayed consideration of Batson sented in a seasonably peremptory challenges must challenge.”6 sequence, together Read and in 99,106 presented. 476 at 1724- U.S. at S.Ct. very strongly imply, at the these decisions discharge 25. The defendant’s motion to least, objection interposed an after the jury made at the conclusion of voir been dire, sworn, jury jury has comes too late. but before the id. at been sworn however, part language, quoted 6. was not are also white. The Buckmon, holding for we decided that of our grounds. case on other objection obvious trend our cases is Batson until it is too late to cure consistent with the law any case elsewhere. beginning jury violation without se- [Georgia] requirement “The Batson process all again. lection over trial, only claim be raised before but in ease, present after the conclu jurors between selection dire, sion voir counsel for OCF made no oaths, and the administration of their is a allegation that Batson had been violated. Georgia, sensible rule.” Ford v. 498 U.S. instead, turned, He issues unrelated 411, 422, S.Ct. L.Ed.2d 935 jury represented selection. He thus to the appropriate “The time for Bat- [a court, implicitly, at least that he was satisfied prior acceptance ] son motion is to the jury as jurors with the seated. The Peck, swearing jury.” State v. sworn, proceeded trial open (Tenn.Cr.App.1986). S.W.2d “[A]n plaintiffs. statement behalf of the objection occurring jury after the is sworn party “After a has assured the court that the timely.” [cannot] People deemed v. Ev jury empaneled acceptable, party ans, 125 Ill.2d 125 Ill.Dec. complain will not be make-up heard of the (1988). Where, here, N.E.2d Evans, jury panel.” supra, 125 Ill. party any objection has failed to at make Dec. at (quoting N.E.2d dire, of voir party close has waived Peck, 555). supra, 719 S.W.2d at Batson claim. Virgin Government Is of Forte, (3d Cir.1986). lands v. 806 F.2d 76 practicalities The of the situation also courts cry judicial Several have held that a Batson out for insistence timeliness. objection made, Where, latest, ease, be party “must at the claiming as in this before the venire is dismissed and before trial during the Batson violation is silent voir dire and See, e.g., commences.” complains only United States v. Par after the venire has been ham, (8th Cir.1994) (empha 16 F.3d 847 sworn, jury dismissed and the has been it added); Maseratti, (if sis United 1 impossible) States becomes difficult not for the (5th Cir.1993);7 F.3d 335 United States court and counsel to recreate their minds (5th v. Romero-Reyna, 867 F.2d 837 the circumstances of each strike. is It not Cir.1989), denied, cert easy attorney 494 U.S. 110 for charged an with a Batson S.Ct. 108 L.Ed.2d 948 These peremptory challenge violation to defend a if sense, eases make eminent longer once the mem or per he she can no remember the released, bers of the venire have challenged been the son or the individuals seated in effectively precluded is re-seating jury court from Delay the box at the time. likewise who peremptorily individual has been impairs judge’s ability to in make an challenged See, on the basis race or of sex. formed assessment of counsel’s reasons States, e.g., Epps v. United or prompt objection A.2d his her strikes. A (D.C.1996) (affirming trial court’s re if therefore essential Batson issue is be prospective jurors instatement of two who meaningful addressed an effective Batson). had been stricken violation of A Accordingly, manner.8 we conclude that party permitted delay should not be its waived Batson its claim.9 Maseratti, (‘‘[t]he compare judicial 7.But at passed upon precise 1 F.3d mind has not timely question presented). juiy notion that a Batson claim is until the Tursio, incorrect") is sworn is with 634 A.2d at (“we conclude that a Batson will be motion Nothing opinion in this be should construed as timely jury when made at before impairing time authority judge intervene sworn."). inconsistency sponte, objec- The ostensible between timely sua even in the absence tion, may illusory appearance these two strong statements be more where there is a than of un- question objection real. The an constitutional discrimination. whether made dismissal of venire but before the swear jury presented was not to the court in objection 9. OCF contends that its belated Batson Tursio, fairly cannot be Tursio viewed judge timely should be treated because the having question. that See decided District judg- reached the merits. We have held that a Club, (D.C. may ground Columbia Sierra ment sustained on different 1996) (rale see, inapplicable upon by judge, e.g., of stare decisis where relied the trial degree of manufacturer is held to the [a]

II. (Citation knowledge experts. and skill of omitted.) upon the imposes This standard “STATE-OF-THE-ART’ keep duty expert of an manufacturer argues judgment that the in this case developments and informed abreast should reversed because certain “state-of- field, including safety devices erroneously admitted the-art” evidence was industry in his equipment used objection. The contested evidence over its type product he manufactures. deposition Dr. Ken- included the of the late M. (quoting at Moren v. Samuel Id. Smith, neth a former medical director Co., N.E.2d Langston Ill.App.2d Corporation, major manu- Johns-Manville (1968)). foregoing In asbestos, well as certain other facturer standard, the entitled to dem- plaintiffs were materials. This evidence was admitted experts in field aware onstrate that the medical and scientific commu- show asbestos, regardless hazards many years nities have known for of some of it was shown that OCF knew whether products. plain- dangers of asbestos dangers. of these testimony attempted to Dr. tiffs use Smith’s Corp., Dartez v. Fibreboard to prove and other such evidence that OCF (5th Cir.1985), confronted, court was that its should have known relevant times alia, question whether inter hazardous, adequate products were testimony of Dr. prior Kenneth Smith —the warnings of those hazards were therefore expert deposition is at issue same whose necessary protect individuals who were against admissible asbestos manu- here —was being exposed to asbestos. (Dr. than Johns-Manville facturers other employer) to show that those manu- Smith’s question dispositive at the trial of dangers of of should have known facturers plain this ease was whether OCF owed the personnel which and other Johns-Manville duty prevail, tiffs to warn. order In experts were aware. The court answered plaintiffs required were show that question that in the affirmative: OCF knew or should have known of a dan ger sufficiently require warning. serious to knowledge an The actual of individual Pineda, Mfg. Penn v. 578 A.2d See East Co. If the is not the issue. dan manufacturer (D.C.1990); Russell v. G.A.F. to Johns- gers of asbestos were known (D.C.1980) Corp., (per cu A.2d exposure, of Manville at the time Dartez’s riam); Restatement Torts, (Second) Sec scientifically dis of then the same risks were 402A, plaintiffs tion comment The claimed J. corporations. coverable other asbestos dangers of Therefore, that OCF “should have known” testimony of the medical which members of the medical and scientific industry’s largest of the member director communities, manufacturers, or other plaintiffs attempt to meet is relevant evidentiary aware. [Borel burden defined Corp., Paper 493 F.2d Prod. Fibreboard (5th denied, Nutt, Cir.1973), Westinghouse cert. Corp. In Elec. (D.C.1979), 127, 42 L.Ed.2d 107 in U.S. 95 S.Ct. 407 A.2d this court stated (1974)]. related context O.L., (D.C.1990), Supreme Court made it clear that In re 584 A.2d 1232 n. in which Ford, required, objection in timely no the merits and and we discern reason to address seasonably pre- approach of a which was not we now contention that Court described the which “sensible,” adopt sented to court below. before the were decided knew or should have trial. OCF's counsel known, points also that some of our cases OCF out authorities, on of these the basis question dealing de- of timeliness were challenge one as late as this case, Batson which came argues that cided after the trial in this and swearing jury, day did—the after the for us to treat its it would therefore be unfair venire, delivery and the untimely. release au- claim as We know no Batson subject regard, plaintiffs' opening thority argument statement —was in this and for OCF’s event, Batson, challenge untimely. both OCF has cited none. Id. at 461.10 Westinghouse believe that the court in would have viewed the admission state-of-the-art acknowledges OCF that Dartez cannot be If, improper. in evidence this case as as we distinguished case, from this and that courts Westinghouse, in is held “held jurisdictions in other relied on have Dartez to degree knowledge experts,” skill sustain the admission of the which evidence id., experts then as to knew evidence what is See, challenged e.g., has been case. necessarily relevant. Owens-Illinois, Zenobia, Inc. v. 325 Md. (1992); George 601 A.2d v. Celo judge The trial vested with broad (2d Cir.1990). Corp., tex determining proffered discretion in whether has cited no case in a court has which See, e.g., evidence is admissible. Roundtree held this evidence to be inadmissible. Nev (D.C. States, v. United ertheless, OCF asserts that “Dartez is incon 1990). that, case, present We conclude in the and, law, sistent District of Columbia judge well acted within his discretion in therefore, that this should decline to [e]ourt objection, admitting, over OCF’s the “state- it.” follow of-the-art” evidence on which the relied. primarily our OCF relies decision in

Westinghouse, supra. Westing- We stated “[ejvidence safety

house that of available III. feasible, mechanisms illustrates what is THE suggests body knowledge LIMITATIONS ISSUE of which the defendant should be aware.” 407 A.2d sequence A The events. Seizing on the use of court’s the word “available,” OCF next contends that the com- Henkels’ Westinghouse OCF claims that OCF, plaint is According time-barred.11 “directly point” requires reject us to the Council's enactment of new statute progeny. Dartez its limitations after the Henkels’ whole, however, as a Read our decision substantially had accrued shortened the time Westinghouse posi- not support does OCF’s period during Henkels could Westinghouse tion. We made it clear in persuaded by their action. We are other what knew manufacturers was admissi- position. against in the particular ble case defen- begin chronology. dant: We with the relevant Henkel, worker, Paul construction was Customary [by use other manufacturers] During early in bom 1944. the 1960’s and safety design of another is also relevant 1970’s, exposed products he was to asbestos care, establish the standard of and that the by handled workers in other trades. In design unreasonably danger- defendant’s is 1985, Henkel, smoker, heavy diag- Mr. was safety of ous. Evidence available mecha- larynx, nosed cancer of the and he feasible, sug- nisms what illustrates therapy. underwent radiation gests body knowledge of which the defendant should be aware....” In March Mr. Henkel suffered 407 Although “customary hospital- A.2d at 611. use” recurrence of the cancer. He was identical, “knowledge” and, 14, 1986, are April surgeons we do not ized on opinion, discussing 10. Later in the in the admis- does not contend that 11. sibility Ames, testimony of the of one an OCF of the limitations bars claims Stines or the manufacturer, representative, against another Phares. Our discussion of limitations issue solely the court reiterated that therefore relates to the claims of Paul and Marilyn Henkel. the state of the art is defined in terms what industry as whole knew or could have asserts if Mr. Henkel’s claim for by properly fulfilling duty personal injuries untimely, discovered was then his wife’s products. these test Hence the fact that Ames’ claim loss consortium is likewise barred. Schneider, testimony only knowledge Stager describes of a See & 494 A.2d 1316 n. nonparty (D.C.1985); Corp., does not affect its relevance on Elliott v. 629 Healthcare cf. (D.C.1993). point. disposi material A.2d tion, In of our Dartez, supra, F.2d at 463. we need issue. not address this Bussineau, at supra, A.2d damages.” laryngectomy. As a result performed a total omitted). (citation surgery, Mr. Henkel missed several of this January Mr. of work. On weeks case, however, not deter- we need In this by him treating physician advised Henkel’s began to three-year statute mine whether occupational to as- that his letter January 1987. in or in April run contrib- may primary have or been bestos in 1988. suit November Henkels filed their uting his cancer. cause of three-year well within the This date was began if that period even limitations in in effect both the law which was Under no doubt There is thus April run in 1986. cancer was Mr. Henkel’s April when that, if of the Henkels’ the timeliness discovered, he January when and in 12- by provisions of governed Section possible link to asbestos was advised its 301(8), defense must limitations then OCF’s years from exposure, Henkel had three Mr. fail. right accrued to time his of action because, This so civil action. was 12-301(8) does not stand But Section times, in was no statute effect those there 1986, Mayor Barry July transmit- alone. In peri- limitations dealing specifically with the of the District Columbia ted the Council right Henkel’s od for asbestos cases. Mr. designed to a new and was “add a bill which governed by the three- action was therefore specifically provision limitations more liberal year provision set forth “catch-all” injury ... personal governing actions for 12-801(8) (1995), § which states: D.C.Code July exposure to arising asbestos.” out Except specifically provided Barry to Mayor as otherwise Marion 1986 letter law, by following purposes Clarke, actions for the of the Chairman Honorable David Columbia, may brought expiration quoted not be the District of Council of period specified Corp., Daily below from Wash. Gwyer The Celotex (Super.Ct.D.C.1989). to maintain the action accrues: Rptr. L. ^{[*] [*]} # ^{[*] [*] [*]} This enacted bill, known the Council as D.C. Law and became effective 6-202, February It is codified as (8) now on limitation is not otherwise which a District of Columbia 12-311 of the years. Section specifically prescribed —3 reads, pertinent part, It Code precise three-year date which the follows: 12-301(8) period specified began Section arising § out of death 12-311. Actions application run is vel non determined by exposure injury to asbestos. caused “discovery” type of rule to this action. See, (a) e.g., injury v. Johns-Manville Sales or illness Wilson action for civil asbestos, Corp., U.S.App. D.C. time upon exposure based (1982); 111, 115 Bussineau v. President shall commencement the action for the cf. Georgetown College, following: & Directors later of the (D.C.1986). 423, 425-26 Mr. Henkel learned (1) year the the one after date Within 1986, and April that he had cancer disability; or plaintiff suffered first primary appears to that Mr. position (2) year the the one after date Within at right accrued that Henkel’s of action knew, through the exer- plaintiff or either however, three-year Arguably, time.12 the diligence should have cise of reasonable 15, January begin to until statute did not run known, disability or was caused that the plausibly might for claim Mr. Henkel exposure. contributed to not then that “discovered that it was until he (a) (b) of “Disability” as used subsection reasonably or should have discovered all from the loss of time possible this means cause section [his] the essential elements pre- exposure that i.e., breach, causation, of the action, duty, and work as result began cancer. that the statute 12. OCF does not contend discovery prior to Henkel’s run of Mr. performance employee’s

eludes cause the Henkels not did file suit until regular occupation. November OCF insists that their action is time-barred. We must decide whether the Henkels’ law- suit, timely 12-301(8), under Section ren- was respond Henkels that Section 12-311 untimely by dered the enactment of Section concedes, designed, as OCF to liberalize 12-311. and extend the statute limitations for as acknowledges general that “the plaintiffs. If bestos their action satisfied the purpose underlying Section 12-311 was to requirements 12-301(8), timeliness of Section expand plaintiffs time in then, according Henkels, to the it could not injuries, could sue to recover asbestos untimely, have been rendered at least as to to contract it.” Brief for Appellant at 17-18 them, by subsequently-enacted liberalizing (quoting Gwyer, supra, Daily L. Wash. provision. argue, The Henkels also relying 2620).13 Rptr. Nevertheless, at con on the construing decisions the California that, 12-311, pursuant tends to Section statute on which Section 12-311 was mod were required Henkels their action eled, “disability,” that as used in 12- Section (when year within one April after 311(b), “permanent disability,” means Mr. Henkel first lost time work as a definition, under that that Mr. Henkel’s 1986 cancer) or, laryngeal result of his “at hospitalization trigger did not latest,” the Henkels’ year within January one (when Puckett, supra of action. See note physician Mr. Henkel’s advised Nelson, may 731; him Cal.Rptr. at primary supra asbestos have been a note cancer).14 contributing cause of Cal.Rptr. Be- 562. agree Because we with provident dust, legal OCF's is a concession one. A sure to asbestos fibers the disease accompanied Mayor’s memorandum which may be detected there before has been proposed significant transmission of the bill to the respiratory impairment Council or result- * * * following contains the ing discussion of what now partial disability. or total Princi- Section 12-311: ples utility appli- of fairness and social favor cation remedial statute to provide Section 5 of the draft bill would society’s such as Nelson. It is for well new, special (designat statute of limitations the individual’s benefit that vic- asbestosis 12-311) § relating ed D.C.Code to actions long they tims should work as able are illness, personal injury, or death caused placing rights jeopar- do so without by exposure language to asbestos. The * * * dy. penal- It would make no sense to section 5 is on based section 340.2 of the may ize those victims who have received an California Code of Civil Procedure. See early diagnosis, particularly ap- since there Corp., Puckett v. Johns-Manville 169 Cal. pears no to be evidence of cure. App.3d Cal.Rptr. Compare Wilson v. Johns-Manville Sales special approach personal injury This Corp., U.S.App.D.C. 684 F.2d 111 justified by claims related asbestos is (1982) (diagnosis "mild asbestosis” did gradually progressive nature of asbestos- not start of limitations clock run- diseases, caused the fact that even ning separate as to and distinct asbestos- appearance symptoms, after the actual mesothelioma). related disease of disability may years not occur until later. Acting Corporation Muiphy, Counsel James R. Cal.App.3d [172 See Nelson v. Flintkote Co. 727], who testified before Council’s Committee Cal.Rptr. (Cal.App. bill, Judiciary regarding likewise dis- Dist.1985), 2nd where the Court stated: progressive cussed the character of asbestos-re- certainly state protect- has an interest emphasized lated He diseases. amend- “the innocent asbestosis toxic victims from provide fairly ments would which deal may rules up tort-feasors. take Asbestosis to 35 * * * victims of the develop hazards of asbestos years exposure. from first 340.2, unique injury.” nature passage See Leg- [W]ith section Gwyer, supra, Daily Rptr. 117 Wash. L. disability islature codified a more liberal rule, (quoting Murphy’s testimony). plus discovery providing Mr. that the limita- period tion never commences to run discern, 14. So far they injury as we can the record does not who know have suffered know, any exposure or illness reflect that Henkel had to from asbestos until "dis- Mr. reason * ** ability” January prior to has that his occurred. cancer was relat- delayed keeping way exposure to This accrual rule more ed in to Ac- is in asbestos. gradually disabling cordingly, (a)(2), nature of the in of Section 12—311 the progressive one-year probably begin disease. Since lung is a asbestosis did not to run disease, product expo- prolonged the until then. Nevertheless, conse- evil dispositive not statute. Henkels that 12-311 did the Section no, the first they quences this turns in period during case the which could shorten the two suit, interplay do not address instance on the between file we need not and discussed. provisions which we have their second contention.15 has of California stat- Supreme Court that, if undisputed consider It is we 12-301(8), ed that only provisions the the of Section position timely. action was OCF’s Henkels’ [sjtatutorily imposed limitations on actions presupposes that the enactment therefore defenses should are technical which radically legal the 12-311 altered Section strictly the forfeiture construed to avoid detriment, to and landscape the Henkels’ limitations plaintiffs rights.... Such a substantially shortened that the new statute just and the courts obstacles to claims are during they period which could file the in may indulge a strained construction that, Specifically, suit. asserts as a the facts of apply these statutes to to the of the “liberalization” of result Council’s particular Finally, there is case.... to period, now had limitations the Henkels strong litigation be dis- public policy that 13, 1987, by April approximately six sue possible. posed on the wherever merits new the effective date of the

weeks after Lintz, Rothberg, 38 & Steketee v. Williams then, discovery applies, If rule statute. the 781, 786, Cal.Rptr. 694 P.2d Cal.3d OCF, obliged according to the Henkels were (citations (1985) quo and internal action, latest, by January file their at the to omitted); post at but tation marks cf. year less than 12- Section (Farrell, J., concurring). The California ordained, law. This became result very language Appeals quoted this Court insists, “plain language” the of Sec construing the California from Steketee in 12-311, one-year the limitations tion because special limitations statute for asbestos-relat period provision applies created injuries as a model for ed which served Sec “any” seeking injury recovery action civil Nelson, Cal.Rptr. at supra, 218 tion 12-311. to asbestos. part 566. The Nelson decision is however, important note, It is that we 12-311, legislative history of see note Section statute, dealing single are not here with ap supra, courts’ California but with two. Whether the Henkels’ present proach special relevance has or, in ripened April appears Moreover, court has held that case. probable, January provi- more limita- where two constructions initially applicable sion to their case was prefer period possible, courts tions are 12-301(8), gave Section which them three gives longer period the one 12-311, years within which to sue. Section If there prosecute the action.... which to three-year effective which became after that in a statute of reasonable doubt run, already period begun thus be- [ejourt problem, the will resolve limitations potentially applica- came the second statute complaint question in favor of court ble to the Henkels’ ease. One has challenge. standing against “[cjhanges of limita- observed that law Columbia Simpson v. District Office of tions, by legislation either or fluctuations (D.C.1991) 392, 402 Rights, A.2d Human [ejourts, productive the decisions of are (citations quotation marks internal omit- Co., consequences,” v. Lusk of evil Hicks & ted). (1858), it is Ark. true that the Henkels, applied At legal quite difficult when we least issues become cannot rec- potentially construction Section must deal with more than one appropriate argument, to decide the case counsel think it In their briefs and at oral question plaintiffs, grounds applicable only most of their attention on the like focused whether, to those 12-311, “disability” Henkels, under Section already right of action had whose one-year statutory limitations from which enacted, and Section 12-311 was accrued before begins permanent dis- to run must be initially, governed, at least whose situation ability. narrow issue which we view as 12-301(8). by Section raised, however, dispositive fairly we was 1234 liberalizing period purpose brought

onciled within a less that pre- behind than or at enactment that statute scribed the time the contract was made principles liability articulated the cases which we incurred from which the have If adopt cited. we were to cause of action arose. The exertion of this OCF’s some- is, course, power subject questionable primary position what to funda- —that time, required mental conditions that reasonable Henkels were to their file action 14, taking year April within all circumstances into consider- one after 1986—then ation, given by they be new law for the only period would have had a six-week of an commencement action before the bar to do so after the Section 12-311 date be- takes effect. words, came having quite effective. other believed, appropriately 28, prior February to (citations omitted); Id. at 675 also see Mor 1987, they could defer suit until Tullgren, ton v. 263 Ark. 563 S.W.2d April Henkels, OCF, according (citation to (1978) omitted); 425 see also Har required would now be to (Tex.Civ. learn the new Denton, vey v. 601 S.W.2d (which yet statute could not found even App.1980). pocket part of the District of Columbia If, hand, other the new Code), counsel, suit, obtain and file their all “so applied statute is as not to allow a rea within six weeks Section 12-311’s effective goes time sonable law into effect to date, failing they which would forfeit their upon yet suit not actions which are rights Moreover, forever. these drastic con- barred, it would be unconstitutional.” Doran sequences are compelled by said to be (5th Compton, v. 645 F.2d n. 9& which, acknowledges, statute as OCF was (citation Cir.1981) omitted).16 “[A] designed provide protection to vic- added bar existing party could not of a extend, tims of asbestos affording opportunity; without him such contract, period the limitations for individu- so, if the legislature attempt should to do als whose claims would otherwise be time- limitations, such act be a would not statute of barred. attempt but an unlawful extinguish rights arbitrarily, might purport whatever be the We are 12-311 satisfied Section Gwin, provisions.” App. supra, its D.C. was not intended to result achieve the construed, at 311. if Statutes should be rea Indeed, OCF asks us to reach. the construc sonably possible, to avoid doubt as to for which present tion OCF contends would constitutionality. their Umana v. Swidler & sure, problems. serious To constitutional Berlin, (D.C. Chartered, “[tjhere is no constitutional barrier which 1995); Harvey, also supra, see 601 S.W.2d at precludes holding period ap [the] shortened (applying this canon construction to plicable to a claim in existence when us). facts similar to those now before OCF’s enacted, charge provided was a reasonable proposed interpretation of Section 12-311 time remained within which sue.” Kalis v. unacceptable carries with it a substantial 166, 167, Leahy, U.S.App. D.C. infirmity. risk constitutional 633, 634, denied, cert. 341 U.S. 71 S.Ct. (1951); Brown, 95 L.Ed. 1358 Gwin logic position leads to App. D.C. The first still more extreme —even absurd —conse Harlan, writing for a Justice unanimous Su quences. Suppose that Mr. Henkel lost Burton, preme Koshkonong Court 7, 1986, time work on March and that (1881), U.S. L.Ed. articulated the expo he had also learned that time that applicable principles: probable sure to of his asbestos was cause undoubtedly It theory, within the constitution- illness. Under OCF’s the Henkels power legislature require, al as to would had to file have March action, existing just causes that suits one week after Section 12-311 Moreover, their enforcement should be unless barred became law. if we follow 16. “The time examined for its reasonable- of action would be barred under the new statute Actions, applied.” ness is that time between statute's effective 54 C.J.S. Limitations of (1987 preexisting date Supp.1996). § and the date on which the cause 7 at n. 31 & 49 & v. A.S. Mayor City Council Baltimore position to the and implications of of 873, end, Co., 162, plaintiff a 377 A.2d apparently then Abell 281 Md. inexorable omitted). January (1977) (citation right should whose of action accrued Courts completely precluded illogical legislature 1986 would be to “imputing avoid effective, suing 12-311 became right after Section it off a of action before intent to cut by January have filed for his suit would to be Transp. Dep’t accrues.” Commonwealth of having of a “reasonable Co., 171, 173 Instead All Points Constr. 566 S.W.2d passed bring to his time” after the law is new (Ky.App.1978). suit, Morton, supra, our 563 S.W.2d time at hypothetical plaintiff would have no assume, solely if for the Even we limitation, like oth- all. But “statutes deciding, without argument, purpose law, consis- procedural or remedial cannot er essentially notwithstanding its liberaliz tently ... federal [the] [constitution] with 12-311 reduced the statu ing design, Section person a apply retroactively [deprive] to a tory period in some cases from limitations Haley, right.” 370 So.2d pre-existing Lott years year, we conclude that three to one (La.1979). 521, 523-24 reasonably period be this reduced cannot right action applied plaintiff to a whose 12-301(8) 12-311, Sections already by 12- accrued the time Section had together, reasonably read can be construed appli The retroactive 311 became effective. a harsh result in manner that avoids the persons 12-311 so situat cation of Section to Generally, impose. if OCF asks us which would, shown, require them to ed as we have specifi a statute of limitations does not new unreasonably bring time after suit in an brief one, cally repeal an then the old one old (or, cases, pre February 28, in some already accrued controls actions which had instituting action at all clude them from the new statute was enacted. Sheri where date).17 Accordingly, (8th we hold that Struble, after that 1229, 1230 dan v. April curiam) (citation omitted). Mr. Cir.1992) even if Henkel’s loss work (per “In disability within the mean 1986 constituted contrary expression of a clear absence 12-311(b) question which intent, of Section of limitations will not be statute —a complaint is do not Henkels’ operating retroactively to we decide —the construed as bar rights.” pre-existing not time-barred.18 enforcement sure, employ- governing period statute construction of is the exclusive 17. To be even under OCF's 12-311, ee asbestos action.” Section some would have sev- February 1987 to eral months after statutory context evident from the We think it Indeed, would be true of the history their suit. this legislative that Section and from the liberalizing Henkels if their of action did not accrue designed provisions was to make the January Mr. was ad- possi- until when Henkel legislation applicable as soon of the new may have caused vised that asbestos provided Council in Section ble. The believe, however, that the We do not cancer. example, limitations was that the new statute of in which pending Council intended to create situation already court. apply in intended, to actions required this would to decide on case- surely court legislature not have could (less by-case period than a basis what of months enacting provision, to direct the retroac- year) a reasonable time and what untimely constitutes of actions which tive dismissal not. statute of limitations should timely does A already were when been filed and which concerned, precision clarity, all contrary, purpose advise Section On the filed. an action must be generous of the latest date of limita- allow the more statute Columbia, filed, previously instituted. Hobson v. District apply to actions tions Cf. (D.C.1996). purpose filed, This might even if those actions which potentially subject party if in the Henkels' cannot be achieved as time-barred to dismissal required guess when his or her previously situation is effect. under by May- will become time-barred. legal submitted memorandum supports proposed legislation or with the memorandum, the author provides conclusion. In that Law 6-202 that the 18. Section 6 of D.C. constitutionality Section apply to actions addressed the "shall new statute limitations under consideration it clear that the issue pending July and to actions made in a court on constitutionally argues the Council could July was whether 1986.” OCF filed in court after pending cases phrase apply statute to the more liberal language, that this combined proper- 12-311(a), impairing vested "com- without "any in Section civil action” defendant’s slightest suggestion in ty rights. one-year There is not pels limitations the conclusion 1236 28, February

IV. effective 1987. OCF does not seriously dispute that accrual of the Henkels’ CONCLUSION 15, fairly January be cause can dated as reasons, 1987, foregoing judgments For the Mr. Henkel when received a letter from appealed hereby from must physician informing each is possible him of a link causal between the asbestos

Affirmed. laryngeal and his cancer. Henkel therefore fully eleven in months FARRELL, Judge, concurring: Associate suit, manifestly which was “a reasonable time join I opinion briefly the court’s and write ... within which to sue under the new stat why agree disposi- to make clear I with its 166, Leahy, U.S.App. ute.” Kalis v. 88 D.C. tion of the statute of limitations issue. 167, denied, 633, 634, cert. 341 U.S. view, I do not share the in reflected 926, (1951). 71 95 S.Ct. L.Ed. 1358 As quotes decision court the outset of its acknowledges, any process the court due “ discussion, that statutes limitations ‘are unfairly claim that the statute cut off a new strictly technical defenses which should be previous right to sue would have to as plain construed avoid the forfeiture of a applied. (quoting Ante at 1234 v. Doran ” rights.’ (quoting tiffs Ante at 1233 Steket (5th Compton, 446 n. F.2d & 9 Lintz, v. Rothberg, ee Williams & 38 Cal.3d Cir.1981) (statute ap if unconstitutional “so Cal.Rptr. 694 P.2d time”)). plied to allow a reasonable (1985)). argument. The Henkels would no such have simply “Statutes of limitations are not contrary, they Nevertheless, On treating technicalities. have interplay in long respected limitations, been as fundamental to a two statutes of the later one judicial system.” well-ordered Board clearly intended to liberalize for the time Tomanio, Regents 487, 100 446 U.S. filing suit, reasonably the court has conclud- (1980). 1790, 1796, S.Ct. L.Ed.2d that the ed second statute was not meant to They embody legis “the judgment of most accruing bar suits based on causes latures and courts” that “there comes before its date. effective Under OCF’s con- point delay plaintiff at which the trary interpretation, potentially large num- asserting sufficiently likely a claim is ei ripened of causes that ber under former impair accuracy ther of the factfind- three-year period retroactively would be de- ing process upset expectations or to settled remedy, wholly something nied inconsistent that a substantial will claim be barred purpose with the ameliorative of the new respect without to whether it is meritori act, statute. OCF relies on 6 of the section Id.; Corp. ous.” see also Chase Securities apply new which makes the law to “actions Donaldson, 304, 314, U.S. S.Ct. 1, 1986, pending July ain court on 89 L.Ed. 1628 July actions filed a court after 1986”— Serano, (D.C.1989) Bond v. ie., well before the effective date of the new (Farrell, J., concurring). ap- Our task But, out, points statute. as the court read ply according statutes of limitations to their literally previ- this would obliterate actions it, meaning intended we can discern best ously timely filed were under exist- (if word) by not aided that is the rule one, but not under the new strict or re- construction a bias favor of given purpose bizarre result conceded solving disputes on the merits. rationally statute. Section under-

Second, persons meant despite suggestions stood as to benefit who had broad to that previously pending filed suits that opinion, application effect in the court’s July 1, far back as who new statute limitations to bar the but would lose plaintiffs’ grounds except key Henkel claim would create no con- on limitations for the problem. liberalizing stitutional The new statute became feature the new statute: memorandum, Mayor's anywhere subject persons in the in the Henkels’ circumstances to legislative history, designed one-year that Section 6 the new statute. three-year limita- reliance “disability on a to an deferred

linking of accrual actual superseded. period later tions to “loss of time defined reference 12-311(a) § language broad work.” The (“In any injury

cited civil action upon to asbestos” illness based added))

(emphasis compel does the con- bar Council meant to suits

clusion

Case Details

Case Name: Owens-Corning Fiberglas Corp. v. Henkel

Court Name: District of Columbia Court of Appeals

Date Published: Mar 6, 1997

Citation: 689 A.2d 1224

Docket Number: 94-CV-658, 94-CV-664 and 94-CV-665

Court Abbreviation: D.C.