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Austin v. Abney Mills9/4/2002
x the point in time at which the disease is contracted." 599 So. 2d at 1076, n.54; see also Malone & Johnson, supra, ยง 219. The majority, instead of moving in the direction in which it is easier to say that a plaintiff had cognizable damages because such damages have manifested themselves, moves in the wrong direction so that pinpointing the time when cognizable damages occur is even more speculative than the contraction theory previously criticized by this Court.
Another problem with the majority's theory that a cause of action accrues at the time of significant exposure to asbestos is that it is not based on the realities of medical science. As stressed by the court of appeal, it is clear that the vast majority of persons who are exposed to asbestos or asbestos-containing products do not develop mesothelioma, or any other asbestos-related disease. Further, even if a person is exposed to asbestos which causes changes in the pleural membrane, that does not mean that the person will ever suffer an asbestos-related disease as a result. In fact, "the vast majority of new asbestos claims are filed by unimpaired claimants, defined as 'people who have been exposed to asbestos, and who (usually) have some marker of exposure such as changes in the pleural membrane covering the lungs, but who are not impaired by an asbestos-related disease and likely never will be." Mark A. Behrens, Some Proposals for Courts Interested in Helping Sick Claimants and Solving Serious Problems in Asbestos Litigation, 54 Baylor Law Review, 331, 342 (2002). Thus, at the time the majority holds that the cause of action accrues, it is pure speculation as to whether a person will ever actually develop an asbestos-related disease. As the Supreme Court of Pennsylvania has held, asymptomatic pleural thickening, unaccompanied by physical impairment, it not a compensable injury that gives rise to a cause of action, and that the discovery of pleural plagues or a nonmalignant, asbestos-related lung pathology does not trigger the statute of limitations with respect to an action for a later, separately diagnosed disease of lung cancer. Simmons v. Pacor, Inc., 674 A.2d 232, 237 (Pa. 1996). Further, mesothelioma is unlike asbestosis or silicosis, in which the scarring of lung tissues takes place coincident with exposure and could continue to progress with subsequent exposures. As plaintiff's doctor has previously testified, malignancies such as lung cancer and mesothelioma will not occur in any form for many years and do not exist, even in microscopic form, for more than approximately ten years prior to their diagnosis. Furthermore, once a tumor starts to grow, subsequent exposures are irrelevant.
The majority attempts to solve this problem by establishing a new and separate rule for plaintiffs who later get a serious disease, such as mesothelioma. The majority has to establish this separate rule because most persons who have merely been exposed (or even significantly exposed) to asbestos will never acquire an asbestos-related disease. Presumably then, according to the majority's reasoning, these persons who have suffered the identical exposures but who never acquire an asbestos-related disease have no accrued cause of action. Thus, the majority's separate rule for people who later do acquire a disease is simply an example of "Monday morning quarterbacking," all to avoid the compensation remedy established by the legislature.
In conclusion, in spite of the problems inherent in long-term latency diseases, such as mesothelioma, see Cole, they provide no justification for retreating from the firmly established law in this state that in order for a tort cause of action to accrue, the plaintiff must incur cognizable damages. Therefo
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