Discovery Rules for Asbestos Cases

In the courts, mostly the limitations clock begins to run when the plaintiff is injured. In the year of 1973, the landmark case of asbestos was, Borel v. Fibreboard Paper Productions Corp., it was difficult to address for applying the traditional rule to asbestos claimants. At that time, courts applied the "discovery rule" to new asbestos cases.

Rules for Discovery

The plaintiff in that landmark case was Clarence Borel, he was an industrial insulation worker and were exposed to asbestos for almost 33 years. Between 1936 to 1969, and he was exposed to asbestos-laced insulation materials from multiple manufacturers. He was hospitalized in March 1969. After being hospitalized and undergoing a lung biopsy, it was diagnosed that he is suffering pulmonary asbestosis. After seven months of hospitalization, Mr. Clarence Borel filed a lawsuit in the court against certain manufacturers of the insulation materials he used at work. His health condition was continuously falling, and it came into his knowledge that he had mesothelioma and his right lung was removed in 1970.

The defendants of the lawsuit argued in the court that claimant's claim was barred by Texas' two-year statute of limitations. In the other arguments, they claimed that Mr. Clarence Borel's cause of action began to accrue at the time of injury. According to their arguments, claimant's injury took place long before claimant filed his claim in 1969 because he had been exposed to asbestos dust since 1936.

It was fortunate that the United States Court of Appeals, for the Fifth Circuit recognized this thing that it is unfairness in applying the traditional rule to asbestos claimants like Mr. Clarence Borel. In those cases, held that a cause of action did not accrue, until "the effects of such exposures manifest themselves."

The U.S Court of Appeals, the Fifth Circuit also noted the the discovery rule applied in such medical malpractice cases. Under that rule, "the cause of action does not accrue until the injury is discovered or in the exercise of reasonable diligence should have been discovered." The Clarence Borel case, the honorable court decided that the rule was also appropriate for identical asbestos personal injury cases. An Illinois court explained it later, in an asbestos case against Johns-Manville: "the cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another."

Today, courts across the united states are now applying the discovery rule while applying statutes of limitations to asbestos cases. Plaintiffs in these type of cases have an amount of time to file their claims, just after they diagnosed, knew or should have known of injuries . This is usually considered the time they were diagnosed with an asbestos-related disease. 

Getting Assistance

If you have been injured and developed by asbestos exposure, the length of the limitations period for your claim will depend on state law. It is wise decision to talk directly with a mesothelioma lawyer instead of guessing whether you still have time to file a claim or otherwise. An experienced mesothelioma lawyer can review your work history, trace the points where you were exposed to asbestos. Filing your case early gives the lawyer a chance to amend the complaint and include additional defendants.