The Statute of Limitations in Toxic Tort Exposure Cases

A party who claims injury through the neglect of another must institute suit within the period prescribed by law or be barred by the applicable statute of limitations. What is a statute of limitations and why does it exist in American law? Essentially, each right that is denied or infringed upon must be pursued within a specific time period against the party claimed to be responsible. For example, under New York law, the right to sue a defendant who is negligent or whose product injures a plaintiff, is three years from the date of the occurrence. The statute of limitations in a New York medical malpractice action is two and a half years from the date of the medical departure or two and a half years from the last date of treatment, so long as it was continuous. The statute of limitations varies with respect to other actions (contract, liable, slander, civil assault, etc.)

The rationale for the existence of the statute of limitations in the first instance, is to draw a line on “stale claims” so that a prospective defendant will be able to experience finality regarding an incident or transaction, without having a “sword of Damacles” hanging over him beyond a specific point in time.

There are exceptions to be noted, however: With regard to an infant, the New York statute of limitations does not begin to run until the age of 18. Thus, an infant who is injured through medical malpractice however must bring an action within 10 years from the date of the malpractice. In the event that the injury to the infant occurred from something other than medical malpractice the statute of limitations begins to run at age 18 and expires 2 ½ thereafter, up until the age of 20 ½ years old. If the injury was caused through the negligence of a person, corporation, or product, the infant can bring an action up to the age of 21 years. The statute of limitations, other than the 10 year maximum for an injury to an infant through medical malpractice, is extended beyond the age of eighteen on the theory that infancy creates a legal disability that requires such an extension by law.

The thorny questions arise however, when the injury does not manifest itself in those cases where a plaintiff was exposed to a toxic substance thereafter suffering injury from such exposure many years later. Prior to 1988, the statute of limitations barred any action brought after three years from exposure to a toxic substance even if the injury did not develop or was not discovered until many years thereafter. In essence, a defendant wrongdoer whose negligence caused a plaintiff to be exposed by a toxic substance thereby sustaining injury, would be free and clear if the injury did not manifest itself within the statute of limitations period of three years.

The injustice of the rule was finally changed however, in 1988 by the Civil Practice Law and Rules, set forth as CPLR 214-c (Finz & Finz, P.C., was at the forefront of that change. See in re NY County Des Litigation), with the result that the statute of limitations clock began to run at the time that the injury was discovered, or through the exercise of due diligence by the plaintiff, it should have been discovered, and not from the time of exposure to the toxic substance.

This issue comes up often and was raised again before the U.S. District Court in Garner v. NGC Bodily Injury Trust, and published in the New York Law Journal on August 27, 2012.

In the Garner case, a worker was exposed to asbestos from 1937 and died in 1966. His employer, the National Gypsum Company, filed bankruptcy in 1990 and was restructured in 1993 as approved by the Texas Bankruptcy court in creating the NGC Bodily Injury Trust “to resolve all asbestos related bodily injury claims”. Following non-binding arbitration which failed to resolve the dispute, the decedent’s daughter as Administratrix brought suit in 2011 claiming that exposure to asbestos caused the death of her father in 1966. The defendant raised several defenses, the statute of limitations being the most significant. The court held that the discovery of the injury “was at the time of his death in 1966”. As a result, the statute of limitations was held to be bar, and the case was dismissed.

What the Garner case points out, is that “exposure” cases that extend the statute of limitations within which to bring an action, can be extremely tricky and difficult. A deep understanding of this complicated area of the law as it pertains to “toxic tort” cases requires a high level of expertise calling upon a special knowledge and litigation experience in these most difficult cases. It cannot be emphasized too strongly that a person injured as a result of being exposed to a toxic substance should consult with an attorney who possesses the highest level of expertise in this practice area so that the precise statute of limitations can be determined.