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ABANDON ACCRUAL RULE, ADOPT DISCOVERY RULE, ALABAMA HIGH COURT URGED

Aug 6, 1996

Emerging Toxic Torts

Abandon Accrual Rule, Adopt Discovery Rule, Alabama High Court Urged

MONTGOMERY, Ala. -- The Alabama Supreme Court has been asked to rehear an asbestos exposure appeal and to overrule or modify the state's accrual doctrine for asbestos injuries and adopt a discovery rule similar to those in other states (Willie Johnson, et al. v. Garlock Inc., No. 1941913, Ala. Sup.; See 7/26/96, Page 18).

A motion to reconsider was filed July 24 by the plaintiffs steel company workers Willie Johnson, Melvin Jackson, Prince Johnson and John R. Brown and by the Alabama Trial Lawyers Association (ATLA). The latter asked the court to adopt a discovery rule similar to Ohio's or "a whole generation of Alabama blue collar workers will be left without any remedy for asbestos caused cancers and other similar latent injuries and diseases."

In a 5-2 ruling July 12, the state Supreme Court granted summary judgment to defendant Garlock Inc., finding that the plaintiffs' cause of action accrued from the last date of exposure and that the one-year statute of limitations had expired.

In their application for rehearing, the plaintiffs say that contrary to the court's assertion that the issue has been addressed in Garrett v. Raytheon (368 So.2d 516 Ala. 1979 ), neither that nor a related case, Tyson v. Johns-Manville Sales Corp. (399 So.2d 263 Ala. 1981 ) addressed these appeal issues:

That the accrual doctrine in Garrett and Tyson "denies almost every Alabama plaintiff any remedy for debilitating injuries which result from asbestos exposure."

That while a cause of action in Alabama exists on exposure, none exists for exposure without harm.

That the Alabama Legislature adopted a discovery rule for asbestos cases because it is impossible to ascertain the precise date of injury.

That the accrual doctrine in Garrett and Tyson violates the state constitutional guarantee that its courts be open and a remedy available.

That the accrual doctrine denies plaintiffs due process under the Alabama and U.S. Constitutions.

That Alabama's accrual doctrine is at odds with virtually every other court in the U.S.

The plaintiffs' brief says that Garrett and Tyson "ignore the reality of latent injury cases and leave unanswered several fundamental questions, creating ambiguity in the law and ultimately denying a remedy to Alabama plaintiffs for life-threatening injuries."

The date-of-exposure accrual doctrine creates a "legal 'Catch-22'" because claims based on mere exposure are dismissed for failure to state a claim, while claims based on injury are dismissed as time-barred, the brief says.

"The Court must clearly and unequivocally allow a remedy either for mere exposure or for the legally cognizable injuries which result from exposure," the plaintiffs say. "As other American courts have found, the only justifiable solution is to hold that a cause of action does not accrue until the plaintiff can maintain a viable cause of action."

The brief includes a table listing the status of the discovery rule by state or territory and by case citation.

"Ascertainment of the precise date of injury has always been impossible in the context of asbestos cases and application of the rigid date of exposure rule has always proven unrealistic," the plaintiffs say. "However, not only is application of the date of exposure rule unrealistic; it is also unconstitutional where it serves only to abolish legally recognized causes of action."

In addition, the plaintiffs say that Tyson gives defendants a vested right to the statute of limitations defense while failing to balance it with plaintiffs' constitutional right of access, remedy and due process.

A statute of limitations cannot run until a plaintiff has a legitimate and realistic cause of action, the brief says, meaning a defendant cannot vest a right to a limitations defense.

"To hold otherwise is to grant the defendant absolute and total immunity and to forever deny plaintiffs access to the Alabama Court system, a right guaranteed by Article I, Section 13," the plaintiffs wrote.

ATLA Amicus

In its amicus curiae brief filed Aug. 2, ATLA also urged the Alabama Supreme Court to re- examine Garrett and Tyson "in order to afford constitutionally protected remedies to those Alabamians exposed to toxic substances who years later develop insidious injuries and diseases."

ATLA urges the high court to adopt the method developed by the Ohio Supreme Court in O'Stricker v. Jim Walter Corp. (447 N.E.2d 727 Ohio 1983 ) and "join ranks" with the majority of other courts that have addressed the issue.

Since Garrett and Tyson were released, ATLA says there has been an explosion of toxic substance exposure/latent injury and disease cases in which injury or disease does not manifest itself until many years after exposure. Quoting O'Stricker, the amicus says application of the date of last exposure rule can bar a right of recovery before a party is aware of injury.

While the Garrett court declined to adopt a discovery rule out of deference to legislative authority to establish statutes of limitation, ATLA says that 17 years have passed and "The legislature has done nothing to help the class of Alabamians (like Willie Johnson, Melvin Jackson, Prince Johnson and John R. Brown in this case) who were exposed to toxic substances many years before" the accrual rule was adopted.

"With this Court's July 12th decision in this case, that class of Alabamians will be left without any remedy at all," ATLA says.

ATLA cites cases from other states where courts have fashioned discovery rules so that statutes of limitations do not bar latent asbestosis and other toxic substances claims.

The Ohio Supreme Court faced the same situation in O'Stricker as the Alabama Supreme Court does in Johnson, ATLA says: an asbestos claim that appeared time-barred along with legislation that also appeared to bar the claim. The Ohio court, the brief says, looked to its general personal injury statute of limitations and defined what is meant by "arose" in that statute.

"The court then thoroughly scrutinized the principles underlying the enforcement of statutes of limitations and observed that none of those principles outweighed the innocent victims' rights to adequate redress . . . ," ATLA continues, quoting the decision.

The plaintiffs are represented by David D. Shelby of Shelby & Cartee in Birmingham, Ala. Frederick T. Kuykendall III, Charlene P. Cullen and Russell Jackson Drake of Cooper, Mitch, Crawford, Kuykendall & Whatley of Birmingham are of counsel.

ATLA is represented by Andrew T. Citrin, David G. Wirtes Jr. and Kelli D. Taylor of Cunningham, Bounds, Yance, Crowder & Brown in Mobile, Ala.

Editor's Note: The ATLA amicus brief and plaintiffs' brief are available 24 hours a day by fax from Mealey's Document Service. FedEx or mail requests processed the same day if placed by 4 p.m. Eastern time. Call (800) 925-4123 or (610) 989-0961. Document number for ATLA's brief is 01-960816-006. 14 pages and for the plaintiffs, #01-960816-105. Subscriber price: $1 per page plus $15.

Contact Mealey Publications Inc. at 1-800-MEALEYS

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