|
|
|
Vol. 72, No. 12, December
1999 |
Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas
J. Hammer
Torts
Statute of Limitations - Discovery Rule - Asbestos
Cases -
Claims Preclusion
Sopha v. Owens-Corning Fiberglass
Corp., No. 98-1343 (filed 27 Oct. 1999)
In March 1987 the Sophas filed a complaint seeking damages
for injuries the husband suffered to his lungs as a result of
asbestos exposure. The action was dismissed on the merits and
with prejudice. In March 1997 the plaintiffs filed another complaint
based on a diagnosis that the husband had mesothelioma. The circuit
court found that mesothelioma was distinct from the asbestos-related
injuries alleged in the 1987 complaint, but it dismissed the
1997 action because it was barred by the statute of limitations.
The plaintiffs appealed and the court of appeals certified the
case to the supreme court.
The supreme court, in a decision written by Chief Justice
Abrahamson, reversed and remanded. The court faced two issues.
First, did the 1987 diagnosis of a nonmalignant asbestos-related
condition (pleural thickening or asbestosis) trigger the statute
of limitations for any and all injuries occurring because of
asbestos exposure, or did a later diagnosis of "a distinct
and later manifested malignant asbestos-related condition (here
mesothelioma) trigger a new statute of limitations on the distinct
and later manifested condition?" Second, did the doctrine
of claims preclusion bar the plaintiffs' 1997 complaint?
The court held that "a person who brings an action based
on a diagnosis of a nonmalignant asbestos-related condition may
bring a subsequent action upon a later diagnosis of a distinct
malignant asbestos-related condition. The diagnosis of a malignant
asbestos-related condition creates a new cause of action and
the statute of limitations governing the malignant asbestos-related
condition begins when the claimant discovers, or with reasonable
diligence should discover, the malignant asbestos-related condition."
A contrary ruling would force plaintiffs to bring premature claims
for fear that if their conditions worsen, they will be foreclosed
from filing suit. The holding brings Wisconsin into conformity
with the majority of other jurisdictions. The court also was
persuaded that this case "presents a special circumstance
in which claim preclusion should not apply."
Prof. Daniel D. Blinka and Prof. Thomas
J. Hammer invite comments and questions about the digests. They
can be reached at the Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
|
