# Fautheree v. McCaffrey

> Court of Civil Appeals of Oklahoma · August 4, 2005 · 141 P.3d 570

URL: https://www.frixlaw.com/law-library/cases/5153683

## Case

- **Full name:** Patsy FAUTHEREE, individually and as Personal Representative of the Estate of Calvin Fautheree v. George J. McCAFFREY, individually, Angela Thompson, individually, and McCaffrey & Gibson, P.L.L.C., an Oklahoma Professional Limited Liability Corporation, and Loren F. Gibson, individually, and K. David Roberts, individually
- **Court:** Court of Civil Appeals of Oklahoma
- **Decided:** August 4, 2005
- **Citations:** 141 P.3d 570; 2006 OK CIV APP 94; 2005 Okla. Civ. App. LEXIS 138; 2006 WL 2520310
- **Precedential status:** Published
- **Opinion:** Concurrence by Hansen
- **Judges:** Buettner, Hansen, Joplin
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5153683

## Opinion text

CAROL M. HANSEN, J.,
specially concurring:
¶ 1 “Mesothelioma is a rare tumor arising from the mesothelial cells lining the pleura pericardial and peritoneal cavities. The latency period of mesothelioma ranges from twenty to forty years. The disease may be compared to asbestosis, which is a pneumoco-niosis produced by inhaling asbestos fibers. It is characterized by bilateral diffuse interstitial fibrosis of the lung parenchyma.” Ganske v. Spahn and Rose Lumber Co. 580 N.W.2d 812 (Iowa 1998).
¶ 2 In Urie v. Thompson, 337 U.S. 163 , 69 S.Ct. 1018 , 93 L.Ed. 1282 (1949), a case dealing with asbestosis under the Federal Employers’. Liability Act, the United States Supreme Court succinctly stated: If Urie were held barred from prosecuting this action, “(i)t would mean that at some past moment in time, unknown and inherently unknowable, even in retrospect, Urie was charged with knowledge of the slow and tragic disintegration of his lungs; under this' view Urie’s failure to diagnose within the applicable statute of limitations a disease whose symptoms had not yet obtruded on his consciousness would constitute waiver of his right to compensation at the ultimate day of discovery and disability.” That Court did not believe the “humane legislative plan” intended such consequences to attach to blameless ignorance. It held no specific date of contact with the substance could be charged as the date of injury, inasmuch as the injurious consequences of the exposure were the product of a period of time rather than a point of time. “Consequently the afflicted employee can be held to be ‘injured’ only when the accumulated effects of the deleterious substance manifests themselves.” (Emphasis supplied)
¶ 3 Although in my view, Appellees dropped the ball in representing this Claimant, Oklahoma law is clear. Claimant would not have prevailed in her workers’ compensation action. The Legislature, in its wisdom, did not include “asbestos related” diseases such as mesothelioma, in providing an exception to the § 43(A) statute of limitations. However ill-advised, the Legislature has spoken. Accordingly, I must concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5153683. Public record. Not legal advice.