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Ott v. Alliedsignal5/19/2005
asbestos was insufficient to create a cause of action. Rather, these cases held that a cause of action accrued only when there was a diagnosable illness resulting from the exposure. For example, in Bernier v. Raymark Industries, Inc., 516 A.2d 534, 542 (Me. 1986), the Maine Supreme Judicial Court held that " he actionable harm is the manifestation of the disease in the body, not the exposure to the potentially hazardous substance." The court further held that " ven assuming that any inhalation of asbestos dust immediately causes microscopic injury to lung tissues, we conclude that the subclinical injury resulting from such inhalation is insufficient to constitute the actual loss or damage to a plaintiff's interest required to sustain a cause of action under generally applicable principles of tort law." Id. at 543 (internal quotation omitted). Bernier supported this conclusion with similar holdings from other state and federal jurisdictions. Similarly, Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996), held that physiological changes caused by exposure to asbestos that were not accompanied by symptoms or harm were not compensable in tort. Id. at 237 ("asymptomatic pleural thickening is not a compensable injury that gives rise to a cause of action."). See also Burns v. Jaquays Mining Corp., 752 P.2d 28, 30 (Ariz. Ct. App. 1987) ("subclinical injury resulting from exposure to asbestos is insufficient to constitute the actual loss or damage to a plaintiff's interest required to sustain a cause of action"), review dismissed.
Our supreme court's reliance on these cases underscores its conclusion that subclinical injuries or other physiological changes resulting from exposure to asbestos are insufficient to support a cause of action until symptoms emerge or until the disease can be diagnosed without resort to extraordinary procedures. If the kind of physiological changes described by Ott's experts were sufficient to support a cause of action in this case, our supreme court would not have relied on the authority in footnote 8.
Ott argues to the contrary that Ott I "requires a retrospective analysis. Once the cancer develops the Supreme Court requires medical testing that if a physician had conducted the proper diagnostic procedures during the ten years after sale the cancer would have been found." Appellant's Br. p. 22. This approach is not supported by the text of Ott I and would create an exception to the statute of repose that would swallow the rule. Ott's argument is that each time asbestos-related cancer develops after the repose period expires, the courts should determine whether any evidence of a disease process was present during the repose period and, if so, should permit the cause of action to proceed. Id. Under this approach, the statute of repose likely would never bar an action for asbestos-related cancer no matter how long after the initial sale the illness manifested itself.
Application of our supreme court's analysis in Ott I may seem harsh. It will preclude all products liability claims for asbestos-related illness and disease that manifest themselves more than ten years after the asbestos is delivered to the initial user. As we understand the evidence in this case, this rule will bar most claims for asbestos-related illness and disease related to occupational exposure. This outcome is consistent with interpretations of the products liability statute of repose, which is designed to ensure that evidence is readily available and not lost after a long period of time, to bolster "the ability of manufacturers to plan their affairs without the potential for unknown liability," and to recognize (perhaps erroneously in this case) "that after a decade of use, product failures are due to
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