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Virginia High Court Decides Against “Two-Disease Rule” for Asbestos Exposure

Kiser v. A.W. Chesterton Co., et al.
Record No. 120698 (Supreme Court of Virginia, January 10, 2013)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

In this case, the Virginia Supreme Court answered a certified question of law from the United States Court of Appeals for the Third Circuit. The Third Circuit asked, whether, under VA. CODE § 8.01-249(4), a Plaintiff's cause of action for damages due to latent mesothelioma is deemed to accrue either, 1) at the time of the mesothelioma diagnosis or 2), decades earlier, when the plaintiff was diagnosed with an independent, non-malignant asbestos-related disease.

§ 8.01-249(4) provides that a cause of action for personal injury "resulting from exposure to asbestos or products containing asbestos" accrues "when a diagnosis of asbestosis, interstitial fibrosis, mesothelioma, or other disabling asbestos-related injury or disease is first communicated to the person or his agent by a physician."

The majority of the Court held that when enacting § 8.01-249(4), the General Assembly did not abrogate the common law indivisible cause of action principle, and that a cause of action for personal injury based on exposure to asbestos accrues upon the first communication of a diagnosis of an asbestos-related injury or disease by a physician.

The underlying facts were that Plaintiff’s decedent worked at a DuPont plant in Waynesboro, Virginia from 1957 to 1985, during which time he was exposed to asbestos. After being diagnosed with nonmalignant pleural thickening and asbestosis in 1988, he filed suit in the United States District Court for the Western District of Virginia in 1990 against numerous asbestos manufacturers, sellers, and distributors, seeking damages for his employment-related exposure and resulting medical condition. In 2010, that action was voluntarily dismissed. In November 2008, Plaintiff’s decedent was diagnosed with mesothelioma, and he died the following March. Acting as executrix of her deceased husband's estate, Plaintiff filed a wrongful death action in October 2010 in the United States District Court for the Western District of Virginia against twenty-one defendants, none of which were parties to the first action. The Executrix alleged that the decedent’s exposure to the Defendants' products during his employment at the DuPont plant caused his development of mesothelioma and subsequent death. The Judicial Panel on Multidistrict Litigation transferred the action to the United States District Court for the Eastern District of Pennsylvania. The various defendants filed motions to dismiss, asserting that the applicable statute of limitations barred the Executrix's action. The district court dismissed the action as barred by the statute of limitations. The Executrix appealed to the Third Circuit, who turned to the Supreme Court of Virginia by posing this certified question, in order to ascertain whether the indivisible cause of action theory applies to distinct and independent asbestos-related diseases stemming from the same exposure.

The Supreme Court of Virginia noted that under the so-called indivisible action rule, although multiple rights of action may arise under a given cause of action, a wrongful act generally gives rise to only one, single, indivisible cause of action. Thus, when a Plaintiff suffers one actionable wrong, the Plaintiff is entitled to one recovery. The Court held that when the statute of limitations began to run under § 8.01-249(4), it runs as to all damages caused by the negligence of another, even if the individual suffers additional damages at a later date. The Court held that in enacting § 8.01-249(4), that the General Assembly was presumed to have known of the common law indivisible injury rule and its applicability to personal injury actions. Since there was no clear intent by the Legislature to abrogate the common law in enacting § 8.01-249(4), the Court determined that it must read the statute in conjunction with the common law, and give effect to both. To the Court, by enacting the statute, the Legislature created only a discovery accrual rule, and did not abrogate the common law indivisible injury rule. The Court acknowledged that this rule presented a “quandary” for asbestos Plaintiffs who have been diagnosed with an asbestos-related disease in deciding when to file an action, and that in recognizing this, numerous jurisdictions permitted separate causes of action for malignant and non-malignant asbestos-related diseases. The Court concluded that this “policy-related problem[]” should be addressed by the Legislature, and not by the Court.

Two judges dissented, arguing that that there should be two (2) causes of action—one for the non-malignant disease, and one for the malignant disease that develops later. The dissenters pointed to evidence that asbestosis and mesothelioma claims, while containing some overlap, are markedly different diseases. For instance, asbestosis, “by definition,” results only from an “overexposure” to asbestos, while, a lesser degree of exposure may be sufficient to prove causation in mesothelioma cases. The dissenters found it “fundamentally unfair[]” to deem only a single cause of action to exist for all asbestos exposure cases. The dissenters noted that the majority’s holding cut against the nationwide trend toward adopting a “two-disease rule” which supports both equity and judicial economy.