Prescription Rules in an Asbestos Case

As the last couple posts have described, some aspects of asbestos cases do not fit within the traditional mold of other personal injury cases. Because these cases continue to be treated as personal injury matters, some of the rules must be relaxed or modified. The Louisiana Supreme Court dealt with some of these modifications in the case of Cole v. Celotex, 599 So.2d 1058 (1992). We look now to explore what the Court had to say about prescription rules that place time limits on a plaintiff’s right to file suit for an injury.

Typically, the rules of prescription give an injured party one year from the date they are injured to file a lawsuit seeking damages against the person(s) responsible for the injury. As we have already noted, the time when an asbestos-related injury actually “occurs” is difficult to determine. Thus, the Court in the Cole case ruled that, for legal purposes, the repeated exposure to hazardous substances give rise to a claim. That is true even if the asbestos-caused disease does not manifest itself until later.

Because the time of the injurious event is difficult to pinpoint, the prescription rules are also hard to apply. Indeed, the Court recognized that a brief one year prescriptive period is incompatible with long latency diseases. An injured party may not even realize that he has suffered any harm for years. Thus, Lousiana courts can apply the “discovery” rule to asbestos cases. Under the discovery rule, the prescriptive period does not begin until “the plaintiff knows or through the exercise of due diligence should have known of the injury.” Cole, 599 So.2d at 1084. Even then, the prescriptive period only runs on injuries the plainiff knows about or should know about. In other words, a plaintiff will not miss his chance to seek damages for disease he does not know about:

“Simply because a plaintiff knows or should know that he has a cause of action seeking damages for asbestosis, for example, does not mean that he knows or through due diligence should know all of the consequences that might develop later, including separate and distinct illnesses such as mesothelioma or another form of cancer.” Id.

The discovery rule makes sense in light of two underlying principles of the prescription rules. First, the prescriptive rules seek to prevent the loss of evidence. In a typical injury case, the evidence – whether physical evidence or witness testimony – gets fuzzier with time. However, the Supreme Court observed that because of the nature of asbestos injuries, “evidence relating to [such issues] tends to develop, rather than disappear, as time passes.”

Secondly, the legal system is concerned with properly compensating an injured party. As much as the law does not want to undercompensate a plaintiff, it also seeks not to overcompensate him at the expense of a defendant. Thus, preserving a plaintiff’s right to sue for injuries as the injuries become evident prevents a plaintiff from having to guess about any future injuries or diseases that might arise. This fulfills the aims against both undercompensation and overcompensation. A plaintiff does not miss the chance to sue for a legitimate injury, but neither is a defendant forced to pay for an injury that never actually develops.

The complex and severe nature of the typical prescription rules and the asbestos modifications demonstrate the need to obtain qualified counsel as soon as possible. If a disease or condition begins to manifest itself, both medical and legal aid should be sought right away in order to protect and preserve an injured party’s rights.