Locke v. Johns-Manville Corp.

• Decision Date: 06 March 1981
• Docket Number: No. 790171,JOHNS-MANVILLE,790171
• Citation: 221 Va. 951,275 S.E.2d 900
• Court: Virginia Supreme Court
• Parties: , 11 Envtl. L. Rep. 20,326 Douglas T. LOCKE v.CORPORATION et al. Record

Page 900

275 S.E.2d 900

221 Va. 951, 11 Envtl. L. Rep. 20,326

Douglas T. LOCKE v. JOHNS-MANVILLE CORPORATION et al.

Record No. 790171.

Supreme Court of Virginia.

March 6, 1981.

George Edward Allen, III, Richmond (Allen, Allen, Allen & Allen, Richmond, on briefs), for appellant.

C. Michael Montgomery, Norfolk (Henry C. Morgan, Jr., Peter C. Manson, Jr., Robert M. Hughes, III, Steven G. Schwartz, William B. Eley, Norfolk, A. James Kauffman, Richmond, William L. Dudley, Jr., Gerard E. W. Foyer, Norfolk, James C. Roberts, Richmond, Pender, Coward, Addison & Morgan, Eley, Rutherford & Leafe, Norfolk, Taylor, Hazen, Bryant & Kauffman, Richmond, Doumar, Pincus, Knight & Harlan, Taylor, Walker & Adams, Norfolk, Mays, Valentine, Davenport & Moore, Richmond, on briefs), for appellees.

Before CARRICO, C. J., HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ., and HARMAN, S. J.

COMPTON, Justice.

In this products liability case, we consider only a statute of limitations question. We must determine when plaintiff's cause of action accrued in this personal injury suit alleging that the disease of mesothelioma resulted from inhalation of asbestos particles. According to the record, this disease is a cancerous tumor most often found in the pleura, or lining, of the victim's lung.

Appellant Douglas T. Locke, the plaintiff below, filed this action on July 24, 1978, against appellees Johns-Manville Corporation, Johns-Manville Sales Corporation, Keene Building Products Corporation, The Celotex Corporation, Unarco Industries, Inc., Eagle-Picher Industries, Inc., Armstrong-Cork Company and Norport Supply Company, Inc. In an amended motion for judgment, plaintiff alleged defendants were engaged in the business of mining, manufacturing, processing, importing, converting, selling and supplying asbestos and asbestos insulation materials and products. Plaintiff further alleged that during the period from 1948 to 1972 he inhaled asbestos fibers and dust as the result of his exposure to various asbestos products which were manufactured, sold and supplied by "some or all" of defendants. He also alleged that due to defendants' negligence and breach of warranty, and because of the inhalation of asbestos particles, he contracted mesothelioma, a disabling and fatal disease. Plaintiff sought recovery of compensatory damages in the amount of $1 million and punitive damages of $500,000.

Defendants' responsive pleadings included pleas of the two-year statute of limitations. Following pre-trial discovery proceedings, defendants filed motions for summary judgment also asserting the action was time-barred. Upon consideration of the allegations in plaintiff's amended motion for judgment, plaintiff's testimony contained in de bene esse depositions, a response to request for admissions, a written proffer of medical evidence filed by plaintiff, and argument of counsel, the trial court sustained the several motions and entered judgment for the defendants in the November 1978 order appealed from.

The record shows that since approximately 1948 plaintiff had been employed as an industrial electrician by various contractors at sites in Virginia, New York and North Carolina. For example, he worked: during 1948 and 1949 on the construction of the cruiser U.S.S. Newport News, at the Newport News Shipbuilding and Drydock Company; during 1954 and 1955 on a "power plant job" at Wilmington, North Carolina; in 1957 at a power plant location near the George Washington Bridge in New York City; during 1971-1972 on the Virginia Electric and Power Company "nuclear power house" in Surry County; and during 1972 at that company's Bremo Bluff power plant. Plaintiff asserts that at intervals during the period from 1948 to 1972 he breathed asbestos fibers and dust from defendants' various asbestos insulation products, with the last exposure being in September of 1972.

The plaintiff further alleged that before November of 1977 he was "in excellent health and physical condition," having had no symptoms of lung disease or abnormality. At that time plaintiff was 49 years of age and weighed 220 pounds. On November 1, plaintiff began experiencing impairment of lung function and thereafter sought medical attention. But prior to early 1978 he had no clinical or other medical evidence of mesothelioma, or any other lung-related abnormality or disease. Chest X-rays performed on April 14, 1978, were normal and "negative for disease," according to plaintiff's contention. Pain and other symptoms in the chest persisted, however.

On May 22, 1978, another X-ray was taken of plaintiff's chest and, for the first time, "an abnormality" was noted. A subsequent X-ray taken four days later "was markedly more abnormal" than the previous one. On May 26, 1978, plaintiff was hospitalized with a tentative diagnosis of pneumonia. Chest surgery was performed seven days later on June 2 and lung tissue was removed. This led to a diagnosis of mesothelioma located in the pleura of plaintiff's lungs. By the time this suit was filed in July of 1978, plaintiff's weight was below 180 pounds and his medical condition was rapidly deteriorating. ¹

Plaintiff's proffer of medical evidence states that if permitted to go to trial on the merits his proof will show the following facts. Asbestos is a carcinogenic chemical, known by experts since at least the 1930s to be a "cancer producer." Asbestos is the "only known cause" of mesothelioma, but not all persons exposed to asbestos fibers will contract the disease. There is no method, "medically or otherwise," to determine in advance which persons exposed to asbestos fibers will develop the disease.

The proffer further discloses that in those persons who contract mesothelioma, the tumor "begins at some time later" than the exposure to the fibers and "there is no clinical or medical evidence of any injury until some time elapses" after such exposures. Additionally, the dates of the victim's exposures to asbestos fibers, and particularly the date of last exposure, bear no medical relationship to when and if a mesothelioma will occur in that person. Also, the disease is always fatal, death normally occurring within three to 18 months of the time the victim first suffers symptoms.

The proffer also states that plaintiff's case of mesothelioma was caused by occupational exposures to asbestos fibers; that the date of plaintiff's last exposure to asbestos in 1972 "bears no relationship medically as to when his mesothelioma occurred"; and, finally, that no "clinical, medical, X-ray or other evidence of the occurrence of mesothelioma" in plaintiff existed before 1978.

To support the charge of negligence, plaintiff asserts, inter alia, that defendants failed to warn him of known dangers connected with use of the asbestos products, failed to inform him of what would be safe protective clothing and equipment to be used while being exposed to asbestos products, failed to inform him about safe and proper methods of handling and using defendants' products, and failed to test the asbestos products to ascertain the danger involved. Contending also that defendants were guilty of breaches of express and implied warranties that caused his personal injuries, plaintiff alleged, inter alia, defendants failed to properly label the products and sold defective products that were "unreasonably unsafe."

The parties do not dispute that the statute of limitations here is governed by Code §§ 8.01-243(A) and -230. Section 8.01-243(A) provides, in pertinent part, that "every action for personal injuries, whatever the theory of recovery ... shall be brought within two years next after the cause of action shall have accrued." The relevant part of § 8.01-230 provides that "(i)n every action for which a limitation period is prescribed, the cause 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...." (accent added).

The trial court held, relying principally on Street v. Consumers Mining Corp., 185 Va. 561, 39 S.E.2d 271 (1946), that the cause of action accrued no later than September of 1972 when plaintiff was last exposed to asbestos dust caused by defendants' products. The court accordingly decided that the suit filed in 1978 was untimely.

Plaintiff's main argument on appeal is that his injury was sustained subsequent to defendants' tortious conduct. Thus, he contends, the statute of limitations began to run at the time of injury and not when the wrongful act was done. Plaintiff says that the right to maintain a tort action for personal injuries does not "accrue," within the meaning of the pertinent statutes, until the claimant has a "legally provable injury." He argues that when the word "injury" as used in § 8.01-230 is applied to the disease in question, the plaintiff has sustained an injury only when "the cancer manifests itself with sufficient certainty to be subject to proof in court." To rule otherwise, plaintiff asserts, would mean that a mesothelioma victim would be required to bring his suit at a time when it would have been impossible for him to have maintained it. Plaintiff argues that the purpose of a general statute of limitations, as here, is to regulate the remedy, not to destroy the right of action before it accrues or can be sued upon.

Defendants maintain that the trial court properly ruled that plaintiff's cause of action accrued no later than the date of his last alleged injurious exposure to an asbestos-containing product "and not upon his, or his physician's, discovery of resulting damage." Defendants say that the "purported legal basis" for plaintiff's lawsuit is that defendants failed to test properly their products and failed to warn adequately the plaintiff, prior to exposure, of any detrimental effects from their use. Defendants point out that plaintiff's proffer of medical evidence states that his disease was caused only by pre-1973...