Kiser v. A.W. Chesterton Co., et al. – Mesothelioma Case Damages Begin at Time of Exposure

In most types of injury litigation, the question of when the damages begin accruing is quite simple: At the time of the injury.
So if you’re involved in a car accident, you would be entitled to compensation for losses that began at the time the crash occurred.

mesothelioma lawsuits in Massachusetts are a bit more complicated, and the reason has to do with the nature of the disease and how it is contracted. The case of Kiser v. A.W. Chesterton Co., et al., reviewed recently by the U.S. Court of Appeals for the Third Circuit, offers up a good illustration of the issues at hand.

In the Kiser case, Orvin Kiser died in 2009, less than a year after being diagnosed with mesothelioma, which had resulted from exposure to asbestos. Ten years before that, he had been diagnosed with a chronic lung disease known as asbestosis, as well as non-malignant pleural thickening.

Kiser had worked at a DuPont plant in Virginia between 1957 and 1985, and was reportedly exposed to asbestos throughout that time period. Illness caused by asbestos exposure does not manifest itself until many years – sometimes decades – after the fact.

Two years after he was initially diagnosed with an asbestos-related disease, Kiser filed a lawsuit against a number of manufacturers and distributors of the asbestos-containing products. The action was voluntarily dismissed.

In late 2008, he was diagnosed with mesothelioma. This aggressive form of terminal cancer, for which the only known cause is asbestos exposure, is typically fatal within a matter of a couple years, sometimes months. It was the latter for Kiser, who died five months after his diagnosis.

His wife subsequently filed a wrongful death action in the U.S. District Court, seeking compensation from 20-plus asbestos manufacturers and distributors for their role in her husband’s contraction of the deadly illness.

A number of the defendants listed in the claim filed motions to dismiss, alleging that the statute of limitations barred the action. They asserted that under the indivisible cause of action rule, the current action began at the time Kiser received his earlier diagnosis, back in 1988. As such, the two-year time limit to file an injury claim had passed.

Kiser’s widow countered that Va. Code 8.01-239(4) effectively abolished the action theory, and allowed for a new statute of limitations to kick in. (The case originated in Virginia, and as such, the state’s case law was applicable.)

Unfortunately, the district court sided with the defendants on the statute of limitations issue.

That decision was appealed to the U.S. Third Circuit Court of Appeals. A ruling from that court is still pending. However, a question was certified from the appellate court to the Virginia Supreme Court. That question was at what point do damages accrue for an action on mesothelioma, which is known to be latent in nature.

The court responded that damages begin to accrue not at the time of diagnosis, but rather decades earlier, at the time of exposure.

If you or a loved one is diagnosed with mesothelioma in Boston, call for a free and confidential appointment at (617) 777-7777.

Additional Resources:
Kiser v. A.W. Chesterton Co., et al., Jan. 10, 2013, U.S. Court of Appeals for the Third Circuit
More Blog Entries:
Lawmakers Try to Limit the Rights of Asbestos Victims, Dec. 4, 2013, Boston Mesothelioma Lawyer Blog

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