The Statute of Limitations in Toxic Tort Cases: The Usual Rules May Not Apply

by Raphael Metzger, Esq.

The client has what appears to be a very strong toxic tort case.  He worked for years with solvents that you have ascertained contained high concentrations of benzene, and developed acute myelogenous leukemia -- the type of leukemia which is indisputably caused by exposure to benzene.

Shortly before trial, you receive a motion for summary judgment by all defendants based on the statute of limitations.  You recall investigating the statute of limitations before you accepted the case.  The client first contacted you 13 months after he was informed that he had leukemia.  However, the client told you that he first suspected that his leukemia was caused by benzene 11 months before, when an oncologist suggested that benzene had caused his cancer.  You filed suit within one year of the date the client first suspected benzene caused his leukemia.

At the time you believed the case was not time-barred because of delayed discovery.  However, as you read the summary judgment motion, your heart begins to pound and you break out in a cold sweat.  The defendants have discovered an entry in the chart of a physician who the client saw for a second opinion shortly after he was diagnosed with leukemia.  The entry says "patient suspects wrongdoing--believes cancer caused by solvent exposures at work."  You check the filing stamp on the complaint.  The complaint was filed a few days more than a year after the physician's entry.  Is the case time-barred?

The leading case regarding the commencement of the running of the statute of limitations when the plaintiff suffers a latent toxic injury is Jolly v. Eli Lilly & Co. (1988) 44 Cal. 3d 1103, 245 Cal.Rptr. 658.

The plaintiff in Jolly was born in 1951.  In 1972 she learned that while she was in utero her mother had ingested DES for the prevention of miscarriage.  In 1972 she was told that DES daughters could suffer injuries and went to a DES clinic at the UCLA Medical Center for a checkup.  She was diagnosed as having adenosis, a pre-cancerous condition that required monitoring.  In 1976 she had an abnormal pap smear and underwent surgery to remove abnormal tissue.  In 1978 she underwent a complete hysterectomy.  As of 1972 the plaintiff was aware, or at least suspected, that her condition was a result of her mother's ingestion of DES during pregnancy.  In 1972 she attempted to discover the manufacturer of the DES.  She increased her efforts in 1976 and 1978 when her condition "became acute."  She did not actually bring suit against the manufacturers until Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132 held that a plaintiff unable to identify the particular manufacturer of a fungible drug could join all defendants who manufactured a substantial part of the market.

The defendant manufacturers opposed the suit, asserting the statute of limitations as a defense and contending that the statute began to run when the plaintiff knew of her injury and its factual cause.

The Court held that in delayed discovery cases, "a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause, will commence the limitations period," id. at 1112, i.e., "the limitations period begins when the plaintiff suspects, or should suspect that she has been wronged."  Id. at 1114.

Since the plaintiff had identified a particular drug as the cause of her harm and admittedly suspected that its manufacturer had wrongfully caused damage to her reproductive system more than a year before she filed suit, the Supreme Court held her products liability case untimely.

Is your case time-barred?  The client suspected wrongdoing more than a year before the complaint was filed, and believed that his leukemia was caused by his exposure to solvents at work.  Is this belief sufficient to start the running of the statute of limitations?  Or did the statute begin when the oncologist suggested that benzene caused the client's cancer?  Or when the solvents that contained the benzene were identified?

Jolly does not answer this question.  The Jolly court observed that "[t]he discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause."  Id. at 1109.  The Court explained that "a plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her."  Id. But the Court rejected the defendants' argument that the statute should commence when the plaintiff knows of her injury and its factual cause. Id. at 1109 n.4.

The plaintiff in Jolly was diagnosed in 1972 as having adenosis, a pre-cancerous condition, and was aware, or at least suspected, that her condition was a result of her mother's ingestion of DES during pregnancy.  However, the Court did not have to decide whether this knowledge was sufficient to trigger the running of the statute of limitations, because her complaint was not filed until more than a year after she suspected wrongdoing by the DES manufacturers and wanted to file a claim in 1978.

What knowledge of the "cause" of injury must the plaintiff have for the statute of limitations to commence in a toxic tort case?   Was your client's belief that his leukemia was caused by occupational chemical exposures sufficient to start the statute?  Was his belief that the solvents he worked with caused his leukemia sufficient?  Did the statute begin to run when he first learned that benzene was the causative agent?  Or did it only begin to run when the products containing the benzene were identified?  Unfortunately, these questions were not resolved by Jolly.

Raphael Metzger is the principal of the Metzger Law Group, a Professional Law Corporation.  His firm concentrates its practice on occupational cancer, lung disease, and toxic organ failure cases.  The firm’s offices are located in Long Beach, California.

This article was published in the Los Angeles Daily Journal on November 5, 2001, under the title: “Keeping Time: Statute-of-Limitations Issues in Occupational Disease Cases.”