Brian Schneider recently argued for a group of corporate defendants for dismissal of a product liability suit in federal court in Philadelphia.
Brian Schneider recently argued for a group of corporate defendants for dismissal of a product liability suit in federal court in Philadelphia. He argued that plaintiff’s case required dismissal under Virginia’s “single disease” rule. On March 17th Judge Robreno of the U.S.D.C. in Philadelphia agreed and dismissed the case with prejudice! Kudos Brian!
A little more detail: In Kiser v. A.W. Chesterton, et al., the plaintiff originally filed in 1990 a claim for asbestosis in the U.S. District Court in Roanoke. That suit against a number of defendants – like all federal asbestos suits, was transferred to the Multi-District Litigation Panel in Philadelphia (“MDL”) – remained pending until the summer of 2010, at which time it was dismissed by Judge Robreno in the MDL. In 2008, before dismissal of his original action, the plaintiff was diagnosed with mesothelioma. Just a few months after dismissal of that first case, the plaintiff filed a second claim in federal court in Roanoke to recover for his mesothelioma. The second suit was against a new group of defendants. Like the first case, the second suit was also transferred to the MDL.
It was the plaintiff’s contention before the MDL Court that a 1985 amendment to Va. Code § 8.01-249 – which changed the date of accrual for asbestos cases from the date that a plaintiff is “hurt” to when a diagnosis is actually communicated to the plaintiff – converted Virginia from its long-standing “single disease” rule. Under that rule, the statute of limitations for all of a plaintiff’s asbestos-related disease begins to run upon the diagnosis of the very first asbestos-related injury. Plaintiff instead asserted that under the 1985 amendment, Virginia is now a “two disease” jurisdiction, meaning that a new statute of limitations begins to run upon the diagnosis of each successive asbestos-related injury. Brian asserted that the plaintiff’s case required dismissal under the “single disease” rule. Relying in part on Caudill v. Wise Rambler, Inc., 210 Va. 11, 168 S.E.2d 257 (1969) and Joyce v. A. C. & S., Inc., 785 F.2d 1200 (4th Cir. 1986), the defendants argued that nothing in the 1985 amendment changed the “single disease” rule as it has existed in Virginia for nearly a century. On March 17, 2011, Judge Eduardo Robreno, of the U.S. District Court in Philadelphia, held that nothing in the 1985 amendment to § 8.01-249 affected the well-established “single disease” rule in Virginia. The Court granted the defendants’ motion and dismissed the case with prejudice.