Among the States, there are two competing theories on the issue of whether a plaintiff, who in the past has brought a suit for a nonmalignant asbestos-related disease, may later bring a second lawsuit if he develops a malignant asbestos-related disease. The two theories are the “two-disease” rule and the indivisible cause of action theory, also known as the “one-disease” rule. In states following the two-disease rule, a plaintiff may bring a lawsuit for a nonmalignant asbestos-related disease without triggering the statute of limitations for any malignant asbestos-related diseases which he may later develop. Conversely, in those states which subscribe to the indivisible cause of action theory, the statute of limitations for all asbestos-related diseases begins to run at the time of the initial diagnosis or discovery of any asbestos-related disease.
States that have adopted the two disease rule are North Carolina, Mississippi, Pennsylvania, Texas, New Jersey, Illinois, Iowa, Maryland, Michigan, Tennessee, California, Wisconsin, Colorado, New York. See, e.g., Mattox v. Amer. Standard, Inc., No. 07-73489, 2011 U.S. Dist. LEXIS 110348 (E.D. Pa. 2011) (North Carolina applies the two-disease rule); Wagner v. Various Defendants, 801 F. Supp. 2d 333, 2011 U.S. Dist. LEXIS 49097, 2011 WL 1743388 at *1-2 (E.D. Pa. 2011) (Mississippi is a two-disease state); Abrams v. Pneumo Abex Corp., 602 Pa. 627, 981 A.2d 198, 208 (Pa. 2009) (adopting the ‘two-disease’ rule in Pennsylvania); Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 653 (Tex. 2000); Cowgill v. Raymark Indus., 780 F.2d 324, 327 (3d Cir. 1986) (discussing New Jersey law, which applies the two-disease rule); Va Salle v. Celotex Corp., 161 Ill. App. 3d 808, 515 N.E.2d 684, 113 Ill. Dec. 699 (Ill. App. 1987); Wilber v. Owens-Corning Fiberglass Corp., 476 N.W.2d 74, 78 (Iowa 1991); Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 464 A.2d 1020, 1028 (Md. 1983); Larson v. Johns-Manville Sales Corp., 427 Mich. 301, 399 N.W.2d 1, 9 (Mich. 1986); Potts v. Celotex Corp., 796 S.W.2d 678, 685 (Tenn. 1990); Hamilton v. Asbestos Corp., 22 Cal.4th 1127 (2000); Sopha v. Owens-Corning Fiberglas Corp., 230 Wis.2d 212, 601 N.W.2d 627, 630 (1999); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119-21, 221 U.S. App. D.C. 337 (D.C.Cir.1982); Miller v. Armstrong World Indus., Inc., 817 P.2d 111, 113 (Colo.1991) (en banc); Braune v. Abbott Labs., 895 F. Supp. 530, 555 (E.D.N.Y. 1995).
On the other hand, Virginia and North Dakota have adopted the one-disease rule. See e.g., Kiser v. A.W. Chesterton Co., 770 F. Supp. 2d 745, 746 (E.D. Pa. 2011) (finding that Virginia adheres to the indivisible cause of action theory or “one disease” rule, as there is a specific provision in the Virginia Code dealing with the statute of limitations for asbestos cases); Joyce v. A.C. & S., Inc., 785 F.2d 1200, 1203-05 (4th Cir. 1986)(under Virginia law, diagnosis of pleural thickening triggered statute of limitations for all asbestos-related disease); Matthews v. Celotex Corp., 569 F. Supp. 1539, 1542-43 (D.N.D. 1983).
In 2018, the Eastern District of Missouri granted Defendant’s Motion for Summary Judgment, rejecting plaintiffs’ claims for wrongful death damages as a result of asbestos exposure suffered by their father based on the doctrine of collateral estoppel. MacCormack v. Ingersoll-Rand Co., 2018 U.S. Dist. LEXIS 14579, 2018 WL 623589 (E.D. Mo. 2018). Defendant argued that, because the decedent had filed a claim for asbestos exposure leading to asbestosis in a Massachusetts state court in 2009, the new claims for mesothelioma were barred, as the issues had already been litigated. The Court found that “both cases involve injuries that arose out of the same alleged negligence, and as a result of exposure to the same product. And the issues that already have been determined, i.e., whether Hovsepian actually was exposed to Ingersoll-Rand’s product, and whether such exposure substantially contributed to his diseases, go to the heart of both claims. The Massachusetts court determined, because of the evidentiary inadequacies with respect to the claims against Ingersoll-Rand, that no genuine issue of material fact remained in dispute and that Ingersoll-Rand therefore was entitled to judgment as a matter of law. This Court is bound by considerations of comity and federalism to accept the state court’s decisive legal and factual determinations, and Ingersoll-Rand should not face the burden of re-litigating these same issues.” Id. at 12-13.
Generally, these competing theories have been reviewed under statute of limitations principles. States which have adopted the two-disease theory have generally done so as an “exception” to the applicable statute of limitations, whereas the states which have adopted the one-disease theory leaned on the “discovery rule” for justification. Although the Court deciding MacCormack, seems to have tilted the scales in favor of the one-disease rule for Missouri defendants, it did so on the basis of res judicata—thereby leaving open the question of whether Missouri subscribes to either theory on statute of limitations grounds. This is important because a plaintiff may still have the opportunity to file multiple claims based on separate injuries, if he settled his claims in the previous lawsuits, i.e., never “litigated the issues.” Considering this ruling, however, a Missouri court may be inclined to conclusively adopt the one-disease theory based on Missouri’s discovery rule, which subscribes to the notion that a plaintiff’s cause of action begins to accrue when “damage is substantially complete…even if some additional damage may occur in the future and even if the [plaintiff] has not actually discovered the injury.” Cook v. DeSoto Fuels, Inc., 169 S.W.3d 94, 103 (Mo. App. E.D. 2005).
Article written by Associate Attorney Najla Hasic | Gausnell, O’Keefe & Thomas