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.
Wisconsin Lawyer
