For almost 29 years, Alabama law dictated that the state's two-year statute of limitations for toxic torts cases ran from the date of the last exposure to toxic substances. As set forth in Garrett v. Raytheon Co., 368 So. 2d 516, 520-521 (Ala. 1979), the "last exposure rule" was frequently harsh on potential plaintiffs who failed to show signs of injury or illness within the two years after their last exposure.

 

In Griffin v. Unocal Corp., 2008 Ala. LEXIS 19 (Ala. Jan. 25, 2008), the Alabama Supreme Court overruled Garrett (and its progeny) and adopted a "discovery rule" for toxic tort cases in Alabama. This landmark decision changed the playing field for toxic tort litigation in Alabama by permitting plaintiffs to pursue actions that they might not have been able to pursue under the former rule. Margie Searcy Alford, principal author and editor-in-chief of A Guide to Toxic Torts, explains this new rule and why the court adopted it:

 

While most states limit plaintiffs to one law suit for injuries due to particular toxic substances from one or a group of defendants, some states recognize the difference between immediate and long-term illnesses or injuries and allow separate suits for diseases that manifest themselves years apart. See, e.g., Peterson v. Instapak Corp., 690 F. Supp 697 (N.D. Ill. 1988); Anderson v. Sybron Corp., 165 Ga. App. 566, 299 S.E. 2d 160 (1982). See also Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C. Cir. 1982) (plaintiff developed asbestosis but did not sue; later he developed mesothelioma and was allowed to sue). Best practice dictates that the practitioner should consider: 1) whether a cause of action can be split, and 2) whether his or her client should avoid signing a release that bars the client from bringing a suit for future injury or illness.

 

In her commentary, the author gives practical advice on dealing with statute of limitations problems in toxic tort cases in any jurisdiction. If you have a lexis.com subscription, you can purchase the entire commentary.