Petition for Writ of Certiorari — Cline v. Ashland, Inc. (No. 06-1329)

Supreme Court brief2006

Ask Donna

What actually matters in this document.

Text

OFFICE OF THE CLERK

In The

Supreme Court of the Gnited States

MARTHA JANE CLINE, Executrix of the

Estate of Jackie Edward Cline,

Petitioner,

ASHLAND, INC., et al.,

Respondents.

On Petition For A Writ Of Certiorari

From The Supreme Court Of Alabama

PETITION FOR A WRIT OF CERTIORARI

ROBERT LESLIE PALMER, ESQ.

ENVIRONMENTAL LITIGATION

GROUP, P.C.

3529 Seventh Avenue South

Birmingham, AL 35222

(205) 328-9200

LESLIE A. BRUECKNER, ESQ.

(Counsel of Record)

AMY RADON, ESQ.

PUBLIC JUSTICE, P.C.

1825 K Street, N.W.

Suite 200

Washington, DC 20006

(202) 797-8600

ARTHUR H. BRYANT, ESQ.

PUBLIC JUSTICE, P.C.

555 12th Street

Suite 1620

Oakland, CA 94607

(510) 622-8201

COCKLE LAW BRIEF PRINTING CO. :suU) 225-6964

OR CALL COLLECT ¢ 402) 342-2831

QUESTION PRESENTED

The Supreme Court of Alabama has interpreted

Alabama’s statute of limitations to require individuals

injured by toxic substances to sue both within two years of

exposure and after they have suffered a “manifest, present

injury.” In this case, petitioner’s decedent Jack Cline was

exposed to a toxic substance (benzene), but did not become

ill until many years later. He filed suit within two years of

becoming sick, but the Alabama Supreme Court dismissed

his case on statute of limitations grounds — even though he

could not legally have filed suit prior to that time. As the

dissent observed, this ruling creates an insurmountable

“Catch-22” in which Jack Cline - and other similarly

situated Alabamians — have literally no time in which to

file suit: “no matter when the person attempts to file the

action, it is either too soon or too late.” App. 37. The

question presented is this:

Whether a judicial interpretation of a statute of

limitations that gives injury victims no time in which to

file suit violates the Due Process Clause of the Fourteenth

Amendment to the United States Constitution?

PARTIES TO THE PROCEEDING

The parties to the proceedings below were petitioner’s

decedent Jack Cline (as appellant) and respondents

Ashland, Inc., Chevron Phillips Chemical LP, successor in

interest to Chevron Chemical Company, LLC, and Exxon-

Mobil Corporation (as appellees). Mr. Cline died twelve

days after the Alabama Supreme Court issued its decision

in this case. His widow, Martha Jane Cline, who has been

appointed executrix of his estate, has been formally

substituted as appellant by order of the Alabama Supreme

Court dated March 9, 2007. See App. 111.

TABLE OF CONTENTS

Page

QUESTION PREGENTED ......<.ccsccoceccoccsvessneroncscessovsves i

PARTIES TO THE PROCEEDING ...........cccccecsseseseseees ii

TABLE OF AUTHORITIBS ..04....ccccecesecessescsssecessesereceeses iv

Ce i aiiniictcetecicirccientckeunels 1

EMRE L A! SID LENSES SIN 1

STATUTORY PROVISIONS INVOLVED ............e:000000- 1

I diickccndieicce 2

STATEMENT OF THE CASE ........cccececccosescescosesessseeves 3

REASONS FOR GRANTING THE WRIT...........c000000- 10

I. THE DECISION BELOW CONFLICTS WITH

NUMEROUS LONG-STANDING DECISIONS

CI ERIE CPE oriesvicsiiaesaiehiiinekebueansabecisasinssitleia 10

Il. THE DECISION BELOW ALSO CONFLICTS

WITH NUMEROUS CONTRARY DECISIONS

OF OTHER STATE COURTS OF LAST RE-

PADOET. ss\eeunchicsceienduahinioeiiiaaddeiadlissesousdlackepsiihidenesiain 16

Ill. THE DECISION BELOW, ALSO CONFLICTS

WITH NUMEROUS DECISIONS OF FED-

ERAL COURTS OF APPEALS, WHICH ARE

THEMSELVES SPLIT ON THE QUESTION

PRESENTED IN THIS CASE..................:::cc0000 22

IV. THE DECISION BELOW PERPETUATES A

MANIFEST INJUSTICE THAT THE ALA-

BAMA SUPREME COURT AND THE ALA-

BAMA LEGISLATURE HAVE PROVEN THEM-

SELVES UNWILLING TO ADDRESS .............. 26

CI AD iidavisidsesicte eetitiliompiackamicniimninaaiueaeiabbnanthe 30

TABLE OF AUTHORITIES

CASES:

Adams & Freese Co. v. Kenoyer, 116 N.W. 98 (N.D.

Armstrong v. Manzo, 380 U.S. 545 (1965)...

Associated Indemnity Corp. v. Industrial Accident

Comm'n, 124 Cal. App. 378 (Cal. Dist. Ct. App.

Atkins v. American Motors Corp., 335 So.2d 134

Cee SID ascii cccsriicsnnicipesvactaduiiinhicmmasianiesmisananietintecide

Baccus v. Banks, 192 P.2d 683 (Okla. 1948)............0

Bell v. Union & Planters’ Bank & Trust Co., 130 So.

4B6 (DinG: 19BD) ...cccicsececcovvcevessecescovssenvesssarevseesscgeoser

Berg v. Berg, 264 N.W. 821 (lowa 1936) .........ssssereeees

Berry v. Branner, 421 P.2d 996 (Or. 1966) .......--.sse++0+

Black v. Ball Janitorial Serv., Inc., 730 P.2d 510

CO SOI cvscssiniccntsosrncsnkinrtninbcntvenecsiecctinienmuseaieone

Blevins v. Northwest Carolina Util., 184 S.E. 517

DEC, TDDB) ccc svccnsevessiveevsvesesosiscrnssoevessnereovecaninsahoresies

Block v. North Dakota ex rel. Bd. of Univ. and Sch.

Lands, 461 U.S. 273 (1983)......ccccsseresssessensserreesscoee

Boddie v. Connecticut, 401 U.S. 371 (1971)...........00008

Brackney v. Combustion Eng’g, Inc., 674 F.2d 812

(Dts Cir. 192) viccoccrccosescccepessenesesossnsdepetensveverooencesessits

Braswell v. Flintkote Mines, Ltd., 723 F.2d 527 (7th

Che, TCD mecvicctcccctsietvssaneiantnteccstuinationisimsonnniceetteneiaie

TABLE OF AUTHORITIES -— Continued

Page

Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S.

EE RE biniapeninaiciadevisiiecinteybsasiiels taleesteesvmabiabaaiuceasnewtidetea 15

Brothers v. Florence, 739 N.E.2d 733 (N.Y. 2000)............ 18

Bunker v. Nat'l Gypsum Co., 441 N.E.2d 8 (Ind.

: | SRR RRR: RO PME NTCIEE PIONS VCD DEN A AMON ERS SENT RIS 21

Calder v. City of Crystal, 318 N.W.2d 838 (Minn.

MEE vsvlsvihvcaxiidibisaiiosa aise tnsidudealebiashiesassadtekmliatiardcaaiainaa 18

Capitan Grande Band of Mission Indians v. Helix

Irrigation Dist., 514 F.2d 465 (9th Cir. 1975)............... 23

Casrell v. Altec Indus., Inc., 335 So.2d 128 (Ala.

Bae O Oe ieiipieiidhcccrdelangiesucnaatinianmniptabiaunsitssdtacdtiiimanainldesae daca 4

Chase Sec. Corp. v. Donaldson, 325 U.S. 304 (1945)...25, 26

Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d

GN Re: BION sai cdasastsiendeviotnsckacneaichouirinmcanmeasuae: 24

Clark v. Gulesian, 429 F.2d 405 (1st'Cir. 1970)................ 25

D’Andrea v. Montgomery Ward & Co., Inc., 571 F.2d

I Fae Rs Fe Pores sscncccdpisacicionteicenicncpiamabanidiiemsnsndadicls 22

Dincher v. Marlin Firearms Co., 198 F.2d 821 (2d

REA PME susiharvcrcinpiv dal dcedbieniainiuninasibeestdeasibieedtatimebal 25

Dinh v. Rust Intl Corp., 974 F.2d 500 (4th Cir.

TIPU ssihiastsan: Sha seiesdbietopiibtckaninlabaistecessambiacakestibbedaniaier dacadad 25

Douglas v. Hugh A. Stallings, M.D., Inc., 870 F.2d

1242 (7th Cir. 1989)..........ccsscesse sndblddsid ciadaabiuaisaciicoaaataas 24

Dove v. Delgado, 808 P.2d 1270 (Colo. 1991) 0.00... 18

Fink v. Shelder, 192 F.3d 911 (9th Cir. 1999)... 22

Fitzgerald v. Scovil Mfg. Co., 60 A. 132 (Conn.

SED sik insta tnenninseuaisunsjuauiidalanmeibedcdinkcaiuaiin acca saa ata, 21

TABLE OF AUTHORITIES - Continued

Page

Flippin v. Jarrell, 270 S.E.2d 482 (N.C. 1980)... 19

Fuentes v. Shevin, 407 U.S. 67 (1972) ........cecsseeesssereeseeees 14

Garcia v. LaFarge, 893 P.2d 428 (N.M. 1995) .......sseeers 17

Garrett v. Raytheon Co., 368 So.2d 516 (Ala.

BF occ cccccovcintsnisiecéecisentetseenensevesenveesvsinberesseseneseeeren passim

Hansen v. A.H. Robins, Inc., 335 N.W.2d 578 (Wis.

TITS... :scciunscecoodesnepannsebeantesdanevunpnecesneneentnienebwsieienins 18

Harris v. Omaha Hous. Auth., 698 N.W.2d 58 (Neb.

QOD) wscssccsscccicssvescecsarctssssasermerevecrsrvooreuscessaveveevevsvrvevererve 17

Helterline v. People, 66 N.E.2d 345 (N.Y. 1946) .........-+++ 18

Hinton v. Monsanto Co., 813 So.2d 827 (Ala.

Ey... scviiinihsaniseucapnicdnantnanenmnneeibeaieiiieds 2, 5, 6, 8, 28

In re Reed’s Estate, 142 P.2d 824 (Kan. 1943) ..........s+00 20

Jewson v. Mayo Clinic, 691 F.2d 405 (8th Cir. 1982)....... 24

Kaprow v. Bd. of Educ. of Berkeley Twp., 622 A.2d

DOF (IE. TODD) vi cereevesinerensveaccteeseervereneceeeinanniveesatnonetonetes 17

Kentucky Union Co. v. Kentucky, 219 U.S. 140

CUNT oc aactacebenenniabacienbbousenmnitasoneiediaeeneninnl 13

Koshkonong v. Burton, 104 U.S. 668 (1881) .........:seseeees 14

Kratchovil v. Motor Club Ins. Ass’n, 588 N.W.2d 565

FSU: SOE cicercisorstterriccenie SE NEE SANIT MONE Ae oC 19

Lamb v. Powder River Live Stock Co., 132 F. 434

BN Ce TI iicccscnsdciciancdaverosvnsneniotermnentbioroantvemicescinneed 23

Lankford v. Sullivan, Long & Hagerty, 416 So.2d

996 (Ala. 1982) .............. ilk ial rctenenlengianbaecbacaiiiadanie 27

Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. 1968) ........... 21

TABLE OF AUTHORITIES — Continued

, Page

Logan v. Zimmerman Brush Co., 455 U.S. 422

Sipe ikistichicelnedqeonanaplbdiadietckindineasesdinbibadiialamsecasatl 10, 14, 15

Lott v. Haley; 370 So.2d 521 (La. 1979) ...........csecesessseseees 20

McGahey v. Virginia (In re Brown), 135 U.S. 662

| REPRE a at cen erat ee Hotes Ne oc oe ROE NEN IP I 11, 12

McNamara v. Marx, 66 So. 764 (La. 1914)............cccceeeeeee 20

Mitchell v. Clark, 110 U.S. 633 (1884)...............eesesseseceeees 13

Mullane v. Central Hanover Bank & Trust Co., 339

Sa St Ce irctasitsviveestbipinicimnicdstintatonionnpeiemmdindiainionte 10

Oberst v. Mays, 365 P.2d 902 (Colo. 1961)................seseeeee 18

Ochoa v. Hernandez Y Morales, 230 U.S. 139 (1918)....... 13

Ockerman v. May Zima & Co., 27 F.3d 1151 (6th

Ce RE oisccccicschen, sestionreaveusceeneerentoeenesesesersesoesdacueventers 23

Owens v. Brochner, 474 P.2d 603 (Colo. 1970)................. 18

Owen v. Wilson, 537 S.W.2d 543 (Ark. 1976)............000eeeee 21

Philadelphia, Baltimore & Washington R.R. Co. v.

Quaker City Flour Mills Co., 127 A. 845 (Pa.

SRSA RAR? Noe Meo oe PLR ONE EOD CST MEN 7a tr OOO Z0

Phipps v. Sutherland, 111 S.E.2d 422 (Va. 1959)............. 20

Rand v. Bossen, 162 P.2d 457 (Cal. 1945).............ccceeseeseee 20

Richards v. Jefferson County, Alabama, 517 U.S.

TE iiiiat hcascicinsiietousniiabbadiia i uintitnniimainstnntecamtenniied 14

Scheas v. Robertson, 238 P.2d 982 (Cal. 1951) ................. 20

Sohn v. Waterson, 84 U.S. 596 (1873)........:ececcecereeeeeeeees 16

State ex rel. White v. Dickerson, 113 P. 105 (Nev.

vill

TABLE OF AUTHORITIES -— Continued

Page

Terry v. Anderson, 95 U.S. 628 (1877) .......++++ 11, 12, 23, 26

Texaco, Inc. v. Short, 454 U.S. 516 (1982) ..............e08e 11,12

Thomas v. BSE Indus. Contractors, Inc., 624 So.2d_ -

DOG (Aik, FIRS) nienitenticcncsditintinnnnnamance 5, 6,8

Tipton v. Smythe, 94 S.W. 678 (Ark. 1906) ........csccescesseers 20

Tr. of Sch. of Twp. No. 1 v. Batdorf, 130 N.E.2d 111

CT, RGD iiicccssssicndeicsedaaviminsdsecanssciiinetaandanebnnneas 20

Turner v. New York, 168 U.S. 90 (1897)...........cccseseseees 11, 12

United States Fid. & Guar. Co. v. United States for

the Use and Benefit of Struthers Wells Co., 209

UB, BOG AGO aanisicnecectisirittesrsennvecsbaisineennatadgain 16

United States v. Kubrick, 444 U.S. 111 (1979)..............000 25

Univ. of Utah Hosp. v. Pence, 657.P.2d 469 (Idaho

DOGG iscscissicsince seca satdainavite casiucnieicddsidncdcemmiadianremasedadabaeads 20

Urie v. Thompson, 337 U.S. 163 (1949) ......sseeerererereeens 15, 16

Vance v. Vance, 108 U.S. 514 (1883)..............ccsssseceeeeeereeees 12

Wheeler v. Jackson, 137 U.S. 245 (1890)................ 11, 12, 22

Wichelman v. Messner, 83 N.W.2d 800 (Minn. 1957) ....... 18

Williams v. Borden, Inc., 637 F.2d 731 (10th Cir.

DIED ss cciscivcccccviensvcrttcteciubiniuibactdtiaditinaeiieceiiaiseemigits daca 23

Wilson v. Iseminger, 185 U.S. 55 (1902) .............-+5 11, 12, 23

Windsor v. McVeigh, 93 U.S. 274 (1876) .......cccseerereeeeees 14

LEGISLATIVE HISTORY:

1998 Ind. Legis. Serv. 1-1998..............sccceseeees ORE BME ie 21

1970 Avks, Atte TOD, 6 4 vcscccoiiinssicsscisixistssateditbunseniiaimiae 21

TABLE OF AUTHORITIES — Continued

Page

STATUTES AND REGULATIONS:

U.S. Const. amend. XIV, art. 1..........cccccccsoseseceres 1, 2, 10, 25

Palate SE © Oe) (EOTO) ccccescscversncsrcecscvccnconseveeregeeees 1,4

ALA. CODE § 6-2-38(1) (1975) ...........ccsscoccessessssesscerescrereees 1,4

ARK. CODE ANN. § 16-114-203 (1979)..........cc:ccsessscsecectenees 21

IND. CODE § 34-20-3-2(b) (1998).........ccccccccssssssessssessesssccees 21

MINN. STAT. § 541.07 (1980), amended by MINN.

PEE © BI sxencorssverencesetesocvesersesneroeeevvceeesoveres 24

Mo. ANN. STAT. § 516.100 (West 2002)..................c.cceceeeeee 21

OTHER AUTHORITIES:

Adam Cohen, Op-Ed., They Say We Have Too Many

Lawsuits? Tell It to Jack Cline, N.Y. TIMES, Jan.

i cc sucadelenioons 3

Appellees’ Brief in Opposition to Application for

Rehearing, Cline v. Ashland, Inc., et al., No.

1041076 (November 22, 2005)............ccccccsccccsssscesecccccccees 8

Brief of Amicus Curiae, Business Council of Ala-

bama, Filed at Invitation of Court, Cline v. Ash-

land, Inc., et al., No. 1041076 (June 12, 2006)............... 9

Brief of the Appellant in Reply to Brief of Amicus

Curiae Business Council of Alabama, Cline uv.

Ashland, Inc., et al., No. 1041076 (July 7, 2006)............ 9

Robert Leslie Palmer, Withholding Justice From

- Toxic Tort Victims, 28 AM. J. TRIAL ADVOCACY 567

i iaicaicis cab iianicepieainkiivevenbeenineveoververteceenens 7, 29

OPINIONS BELOW

The opinion of the Alabama Supreme Court (App. 1-

48) is not yet reported. See 2007 WL 30070. The unre-

ported order of the trial court (App. 54-55) was entered on

March 29, 2005.

JURISDICTION

The judgment of the Alabama Supreme Court was

entered on January 5, 2007. App. 49. This Court has

jurisdiction under 28 U.S.C. § 1257.

STATUTORY PROVISIONS INVOLVED

Alabama Code § 6-2-30(a) (1975) provides that “alll

civil actions must be commenced after the cause of action

has accrued within the period prescribed in this article

and not afterwards, unless otherwise specifically provided

for in this code.”

Alabama Code § 6-2-38(1) (1975) provides that “[al]ll

actions for any injury to the person or rights of another not

arising from contract and not specifically enumerated in

this section must be brought within two years.”

The Fourteenth Amendment to the United States

Constitution provides, in relevant part, that “[nlo State

shall ... deprive any person of life, liberty, or property,

without due process of law... .” U.S. CoNsT. amend. XIV,

art. 1.

INTRODUCTION

The question presented in this case almost answers

itself: Whether a judicial interpretation of a statute of

limitations that gives injury victims no time in which to

file suit violates the Due Process Clause of the Fourteenth

Amendment to the United States Constitution? Numerous

decisions of this Court dating back to the nineteenth

century, as well as numerous decisions of state high courts

and U.S. Courts of Appeals, have held that a statute of

limitations, in order to pass constitutional muster, must

afford litigants a reasonable time in which to seek redress

for their injuries. In the State of Alabama, however, tort

victims who do not become sick until more than two years

after exposure to a toxic substance have literally no

opportunity in which to file a lawsuit: if they file before

they become sick, their lawsuit is subject to dismissal on

the-ground that the cause of action has not yet accrued.

See, e.g., Hinton v. Monsanto Co., 813 So.2d 827, 829 (Ala.

2001) (holding that “Alabama law has long required a

manifest, present injury before a plaintiff may recover in

tort”). If, however, they wait to sue until they have ac-

quired a “manifest, present injury,” as Hinton requires,

then their lawsuit is subject to dismissal on statute of

limitations grounds. Garrett v. Raytheon Co., 368 So.2d

516, 521 (Ala. 1979) (holding that a cause of action for

injuries caused by exposure to a toxic substance accrues,

for statute of limitations purposes, upon exposure to that

substance, even though the plaintiff’s illness does not

develop until many years later).

That is exactly what happened in this case. Peti-

tioner’s decedent Jack Cline was exposed to benzene

manufactured and/or supplied by respondents over the -

course of many years. Twelve years after the last exposure,

he developed leukemia which, according to his doctor, was

caused by the benzene exposure (and ultimately killed

him). He filed his lawsuit less than two years after he

became sick, in keeping with the two-year Alabama

statute of limitations governing personal injury claims.

His case was thrown out of court, however, on the ground

that, under Garrett, he should have filed within two years

of his last exposure to benzene, even though such a lawsuit

would have been premature under the accrual rule of

Hinton. To quote a recent New York Times op-ed article

regarding this case, this regime, which deprives Alabama

toxic tort victims who do not become sick within two years

of their exposure of any time in which to file suit, “would

have done Kafka proud.” Adam Cohen, Op-Ed., They Say

We Have Too Many Lawsuits? Tell It to Jack Cline, N.Y.

TIMES, Jan. 14, 2007, § 4, at 11. Review should be granted

to prevent this manifest injustice and square the law in

Alabama with the well-settled precedent of this Court, of

numerous state courts of last resort, and of a number of

U.S. Courts of Appeals.

STATEMENT OF THE CASE

The Petitioner: The petitioner, Martha Jane Cline,

is the executrix of the estate of her deceased husband,

Jack Cline, who died on January 17, 2007, just twelve

days after the Alabama Supreme Court issued its decision

in this case. See App. 109 (Order Permitting Substitution

of Executrix for Deceased Appellant). The cause of Mr.

Cline’s death was acute myelogenous leukemia, a form of

leukemia that is closely associated with exposure to

benzene. Mr. Cline was exposed to benzene manufactured

and supplied by respondents Ashland, Inc., Chevron

Phillips Chemical LP, and ExxonMobil Corporation, while

he was employed as a plant chemist at Griffin Wheel

Company in Bessemer, Alabama from about 1968 through

about 1987, but he was not diagnosed with leukemia until

October 7, 1999, twelve years after his last exposure to

respondents’ benzene. On April 6, 2001, less than two

years after his diagnosis with acute myelogenous leuke-

mia, Mr. Cline filed this personal injury action. App. 2-3.

Alabama Law: The claims asserted by Mr. Cline

arise out of the Alabama Extended Manufacturer’s Liabil-

ity Doctrine (““AEMLD”), a common-law doctrine, one

element of which is that the plaintiff must establish he

has suffered an injury. Atkins v. American Motors Corp.,

335 So.2d 134, 141 (Ala. 1976); Casrell v. Altec Indus., Inc.,

335 So.2d 128, 132 (Ala. 1976). Logically, then, an AEMLD

claim arising out of exposure to a toxic substance cannot

accrue before a victim has a manifest, present injury. The

two-year statute of limitations for AEMLD claims is

established by ALA. CODE § 6-2-38(1) (1975), and the

commencement of the limitations period is governed by

ALA. CODE § 6-2-30(a) (1975), which provides:

All civil actions must be commenced after the

cause of action has accrued within the period pre-

scribed in this article and not afterwards, unless

otherwise specifically provided for in this code.

Despite this clear legislative declaration tying the

commencement of the limitations period to the “accrual” of

a claim, the Alabama Supreme Court has divorced the two,

repeatedly ruling that a toxic tort action does not accrue,

and there is no right of action, until the victim has a

“manifest, present injury,” yet simultaneously declaring

that the two-year limitations period for such claims

commences on last exposure. Because most toxic tort

victims do not have a “manifest, present injury” for many,

many years after their last exposure, these two rules

effectively deny the vast majority of toxic tort victims any

access to court.

This departure from rationality began in 1979, in

Garrett v. Raytheon Co., 368 so0.2d 516, 521 (Ala. 1979), in

which the Alabama Supreme Court ruled that the statute of

limitations in a radiation exposure case commenced on the

plaintiffs last exposure to the radiation, even though the

plaintiff's illness did not develop until many years later.

Significantly, the Garrett decision neither overruled the

well-established principle that a cause of action does not

accrue until the plaintiff is entitled to bring it, nor did it

expressly establish a distinct exposure accrual rule for toxic

tort cases. Instead the majority simply found as a matter of

law that an injury had in fact occurred on exposure, without

any medical or scientific basis and without any considera-

tion of whether the plaintiff could have filed suit upon

exposure. Garrett, however, created the wedge with which

the Alabama Supreme Court, in subsequent decisions,

divorced the commencement of the statute of limitations

from the accrual of the cause of action.

Thus, despite its ruling in Garrett, the Alabama

Supreme Court has continued to apply the ancient rule

that a cause of action does not accrue until a plaintiff has

a “manifest, present injury.” See, e.g., Thomas v. BSE

Indus. Contractors, Inc., 624 So.2d 1041, 1046 (Ala. 1993)

(dismissing outrage action brought by individual exposed

to asbestos but not yet ill). The Alabama Supreme Court

reached the same conclusion in Hinton v. Monsanto Co.,

813 So.2d 827, 829 (Ala. 2001), which upheld the dismissal

of a cause of action for “medical monitoring” by individuals

exposed to polychlorinated biphenyls on the ground that

the plaintiff had not yet become sick, and therefore did not

have a ripe cause of action. To this day, Alabama continues

to adhere to the rule that a cause of action for personal

injuries does not accrue until the plaintiff has actually

manifested illness.

The combined effect of Garrett, on the one hand, and

Thomas / Hinton, on the other, has created a perversion of

justice in the State of Alabama with respect to toxic tort

victims whose illnesses do not manifest within two years

of their exposure. Under the statute of limitations rule of

Garrett, such victims are required to sue within two years

of exposure to a toxic substance, even though they have

not yet manifested any injuries. Under Thomas/Hinton,

however, their causes of action are deemed premature

until they have actually become sick. For such individuals,

then, their claims are either too early or too late. There is

never a time for them to seek redress for their injuries,

regardless of the egregiousness of the defendant’s conduct

or the severity of their injuries.

In this respect, Alabama is entirely unique. Alabama is

the only state in this country in which a toxic tort personal

injury claim is deemed to have accrued, for the purposes of

the statute of limitations, before there is a manifest present

injury. In every one of the other forty-nine states and the

District of Columbia, a toxic tort claim is deemed to accrue

only after an injury has manifested itself.’

The Proceedings Below: Mr. Cline filed this case

on April 6, 2001, less than two years after his diagnosis

with leukemia but more than twelve years after his last

* For a complete listing of authorities establishing the accrual rule

in other jurisdictions, see App. 112-27.

exposure to the benzene manufactured by respondents.

App. 2. On January 8, 2004, respondents moved for sum-

mary judgment on the ground that his claim was barred

under the rule of Garrett. On January 12, 2005, the trial

court heard argument on respondents’ renewed motion for

summary judgment. At the hearing, Mr. Cline’s counsel

told the trial court judge that a new law review article

about the statute of limitations issue had been written,

but not yet published, and he asked the court to entertain

an amicus curiae brief by the author of that article. The

trial court judge consented.

On February 4, 2005, the Amicus Curiae Brief of

Environmental Litigation Group, PC. in Response to

Defendants’ Motion For Summary Judgment was filed

with the trial court. See App. 56-59. The amicus brief

alerted the trial court to the fact that Alabama’s court-

created exposure accrual rule denied due process of law

under both the Alabama and United States Constitutions

(App. 65-67), and the brief included as an attachment an

unpublished draft of a law review article that was subse-

quently published. See Robert Leslie Palmer, Withholding

Justice From Toxic Tort Victims, 28 AM. J. TRIAL ADVOCACY

567 (2005). That article also discusses at length how

Alabama’s court-created exposure limitations accrual rule

denies due process of law.

On March 8, 2005, the trial court granted respondents’

renewed motion for summary judgment, stating that Mr.

Cline’s claims expired in 1989, “within two years of his last

exposures to their products,” even though Mr. Cline was not

diagnosed with leukemia for another ten years. App. 55.

On April 15, 2005, Mr. Cline timely filed a notice of

appeal to the Supreme Court of Alabama, and he thereafter

filed a brief in which he argued, inter alia, that the trial

court’s order granting summary judgment denied Mr. Cline

due process of law in violation of the Constitutions of the

United States of America and the State of Alabama. App. 71-

78 (excerpts from Brief of the Appellant, July 21, 2005, at 46-

55). In response, respondents argued that Mr. Cline was not

denied due process of law because he could have filed a

lawsuit in 1987, twelve years before he was ever diagnosed

with leukemia, an assertion that simply ignores the effect of —

Hinton, Thomas, and similar decisions. App. 84-85 (excerpts

from Brief of Appellees, August 9, 2005, at 42-44).

On October 14, 2005, without opinion and without

notice to the parties, the Supreme Court of Alabama

affirmed the summary judgment. App. 51. Just two days

after accidentally learning that the summary judgment

had been affirmed, Mr. Cline filed an application for

rehearing, together with a brief once again arguing that

the summary judgment had denied him due process of law

under both the United States and Alabama Constitutions.

App. 96-99 (excerpts from Brief of the Appellant on Re-

hearing, November 11, 2005, at 9-14). On November 14,

2005, the Alabama Supreme Court granted the motion to

permit the application for rehearing, and respondents

thereafter filed a brief once again arguing that the sum-

mary judgment did not deny Mr. Cline due process of law.

See Appellees’ Brief in Opposition to Application for Re-

hearing, Cline v. Ashland, Inc., et al., No. 1041076 (No-

vember 22, 2005) at 4.

Despite having denied oral argument on the initial

hearing, on February 13, 2006, the Alabama Supreme Court

scheduled the case for oral argument on April 4, 2006 in a

special session. On April 11, 2006, exactly one week after the

oral argument in the case, the court requested amicus

curiae briefs from the Alabama Trial Lawyers Association

and the Business Council of Alabama. App. 107.

On May 11, 2006, the Alabama Trial Lawyers Associa-

tion filed its amicus brief, and on June 12, 2006, the

Business Council of Alabama filed its amicus brief. Among

other things, the Business Council argued that Mr. Cline

could have filed a lawsuit within two years of his last

exposure and that he was therefore not denied a remedy.

See Brief of the Appellant in Reply to Brief of Amicus

Curiae Business Council of Alabama, Cline v. Ashland,

Inc., et al., No. 1041076 (July 7, 2006) at 7-9. In reply, Mr.

Cline again asserted that the court-created exposure

limitations accrual rule, when coupled with the manifest,

present injury action accrual rule, denied Mr. Cline due

process of law. See Brief of Amicus Curiae, Business

Council of Alabama, Filed at Invitation of Court, Cline v.

Ashland, Inc., et al., No. 1041076 (June 12, 2006) at 27-30.

On January 5, 2007, the Alabama Supreme Court

once again affirmed the summary judgment without

opinion. App. 1. All nine justices, however, participated in

one of three opinions, consisting of two “special concur-

rences” and one dissenting opinion. Although the issue

was fully briefed by the parties, none of these opinions

mentions the Due Process Clause of the United States

Constitution, although two of them discuss Alabama’s Due

Process: Clause. One special concurrence, authored by

Justice See, reduces Alabama’s Due Process Clause to a

mere competing “policy” concern. App. 5. Four dissenting

justices, however, recognized the Kafkaesque nature of the

majority’s decision:

As things now stand, and as left in place by the

majority in this case, the law in this State would

seem to be this: A person exposed to a toxic

substance having the potential to cause disease on

a delayed basis, but who has suffered no manifest,

present injury within two years thereafter, may

not file an action within that two-year period [cit-

ing, inter alia, Hinton). If, after two years, that

same person in fact suffers an injury from the ex-

posure and files an action, the action will be dis-

missed on the basis that it should have been filed

earlier. Thus, no matter when the person intends

to file the action, it is either too soon or too late.

App. 36-37. The law in Alabama is “confounded,” said the

dissent, and continued “blind obedience” to prior precedent

“does not serve the law, but rather greatly disserves it.”

App. 38. ;

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH

NUMEROUS LONG-STANDING DECISIONS OF

THIS COURT.

The decision below warrants review because it squarely

conflicts with more than a century of this Court’s prece-

dents requiring civil litigants to be afforded a reasonable

amount of time in which to commence a lawsuit. It is well

established that the Due Process Clause of the Fourteenth

Amendment protects a “cause of action [as] a species of

property,” Logan v. Zimmerman Brush Co., 455 U.S. 422,

428 (1982) (citing Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306 (1950)), and requires state courts to

provide injured parties with a meaningful opportunity to

have their claims adjudicated. See id. at 437. As applied to

statutes of limitation in particular, this Court has made

clear that limitations periods that extinguish claims before

the litigant has had a reasonable amount of time to seek

judicial recourse are repugnant to the U.S. Constitution.

See, e.g., Terry v. Anderson, 95 U.S. 628, 632 (1877) (“stat-

utes of limitation affecting existing rights are not unconsti-

tutional, if,a reasonable time is given for the commencement

of an action before the bar takes effect.”) (emphasis added).

By disregarding this long-standing hallmark of due process

and holding that toxic tort victims need not be afforded any

opportunity to commence a cause of action for their injuries,

the court below adopted a position antithetical to constitu-

tional principles reiterated by this Court since the 1800s.

Review is warranted for this reason alone.

The issue of due process as it applies to statutory

limitations periods most often arises in the context of

challenges to the applicability of newly-enacted statutes of

limitation to claims that have already accrued. In these

cases, this Court has taken pains to make clear that stat-

utes of limitation will pass constitutional muster only if

they provide a reasonable time to commence a cause of

action before the statutory bar takes effect.’ Although the

* See, e.g., Texaco, Inc. v. Short, 454 U.S. 516, 518-19 (1982)

(finding no due process violation because statute that required an end

to mineral interests provided a two-year grace period in which owners

could take appropriate action to protect their mineral interests); Wilson

vu. Iseminger, 185 U.S. 55, 64 (1902) (holding that provision of statute

extinguishing charges upon real estate did not violate due process

because it did not go into effect until three years after passage of

statute, affording litigants “ample time” to make a claim); Turner v.

New York, 168 U.S. 90, 94 (1897) (holding that statute extinguishing

rights to land did not offend Constitution because it provided six-month

grace period for the filing of claims to land); McGahey v. Virginia (In re

Brown), 135 U.S. 662, 707-08 (1890) (holding unconstitutional a statute

that limited the time to present state-issued coupons in the payment of

demands due to the state to one year because of the unlikelihood that

holders of the coupons would be able to use them in the time allotted);

Wheeler v. Jackson, 137 U.S. 245, 256 (1890) (finding constitutional a

statute providing six months in which to bring an action to compel the

(Continued on following page)

time afforded in most of these cases was held to be reason-

able, this Court in each case expressly noted that, had the

statute failed to provide a reasonable amount of time before

extinguishing the plaintiffs claims, the statute would be

repugnant to the Constitution. See Texaco, 454 U.S. at 527

n.21 (“It is essential that such statutes allow a reasonable

time after they take effect for the commencement of suits

upon existing causes of action. ...”) (quoting Wilson, 185

U.S. at 62); Wilson, 185 U.S. at 62 (statute would have been

“an unlawful attempt to extinguish rights arbitrarily” had

it not afforded parties a “full opportunity” to bring a cause

of action in court); Turner, 168 U.S. at 94 (statutes that

“take away any right of action” would be unconstitutional,

but those that “merely limit[] the time within which” to

assert a legal claim would not); Jn re Brown, 135 U.S. at

707 (“[T]he time given for the act to be done must be a

reasonable time; otherwise it would be unconstitutional and

void.”); Wheeler, 137 U.S. at 256 (statute of limitations

should not be disturbed “unless the time allowed to bring

suits upon existing causes of action is, in view of all the

circumstances, so short as not to give parties affected by it a

reasonable opportunity to protect their rights under the

new law”); Vance, 108 U.S. at 517 (statute that “declared

the abolition and extinction eo instanti of all tacit mort-

gages” would violate due process); Terry, 95 U.S. at 632-33

execution of certain conveyances or leases passed constitutiona] muster

because it afforded parties a “reasonable opportunity to protect their

rights under the new law”); Vance v. Vance, 108 U.S. 514, 517 (1883)

(holding as constitutionally sound a statute requiring tacit mortgages to

be recorded by a certain date in order to be enforceable against third

parties, because statute provided one year and eight months in which to

record the mortgage); Terry, 95 U.S. at 634 (holding that nine months

and seventeen days after passage of statute was reasonable amount of

time to enable litigants to commence a lawsuit).

(a “reasonable time” must be afforded to litigants to com-

mence a cause of action before the statutory limitations

period expires); see also Block v. North Dakota ex rel. Bd. of

Univ. and Sch. Lands, 461 U.S, 273, 286 n.23 (1983) (statute

“arguably was unconstitutional to the extent it extinguished

claims that could have been brought at the time of its pas-

sage”). Thus, contrary to the finding by the court below, this

Court has repeatedly held that a statute of limitations

cannot withstand constitutional scrutiny where it completely

obliterates a litigant’s right to seek judicial recourse.

This Court has reached the same conclusion in the

context of cases involving statutory amendments that

shorten a preexisting limitations period. In cases dating

back to the 1800s, this Court has held that a limitations

period may be amended to materially reduce the time in

which a cause of action may be commenced, but may not

extinguish the opportunity to seek redress altogether. See,

e.g., Ochoa v. Hernandez Y Morales, 230 U.S. 139, 161-62

(1913) (holding that a statute of limitations “may be

modified by shortening the time prescribed,” but the U.S.

Constitution requires that “this be done while the time is

still running, and so that a reasonable time still remains

for the commencement of an action before the bar takes

effect”); Kentucky Union Co. v. Kentucky, 219 U.S. 140, 156

(1911) (finding that shortening of limitations period posed

no constitutional problems when “an opportunity, not

unreasonable in character, [wa]s given for compliance with

the laws after the same [went] into effect ... ”); Mitchell v.

Clark, 110 U.S. 633, 643 (1884) (holding that limitations

period shortened to allow two years after statute’s passage

and two years after cause of action accrued to commence

an action passed constitutional muster because it provided

a “reasonable time ... for the enforcement of the contract

by suit before the statute [barred] that right”); Koshko-

nong v. Burton, 104 U.S. 668, 675 (1881) (holding that

amendment of statute to provide for different accrual date,

and one-year grace period in which litigants could com-

mence causes of action otherwise barred by the new

accrual date, was constitutional because statute provided

“a reasonable time, taking all the circumstances into

consideration ... for the commencement of an action

before the bar t{ook] effect”). Clearly, then, a statute that

altogether denies a litigant the right to seek redress for his

or her injuries does not pass constitutional muster.

Outside of the context of statutes of limitation, this

Court has more generally held that a state’s procedural

requirements governing the manner in which a lawsuit

may be commenced cannot deprive individual litigants of

access to the judicial system. See, e.g., Windsor v. McVeigh,

93 U.S. 274, 278 (1876) (“The period within which the

appearance must be made and the right to be heard

exercised is, of course, a matter of regulation. ... But the

denial of the right to appear and be heard at all is a

different matter altogether.”). Thus, this Court has held

that due process requires state court procedural require-

ments, including statutes of limitation, to afford litigants

“an opportunity ... granted at a meaningful time and in a

meaningful manner ... for [a] hearing appropriate to the

nature of the case.” Logan, 455 U.S. at 437 (emphasis in

original) (quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965); Mullane, 339 U.S. at 313).°

3 See also Richards v. Jefferson County, Alabama, 517 U.S. 793,

803 (1996) (“the State may not deprive individual litigants of their own

day in court”); Fuentes v. Shevin, 407 U.S. 67, 96 (1972) (prejudgment

replevin provisions violated due process “insofar as they denfied] the

(Continued on following page)

Applying these principles in Logan v. Zimmerman

Brush Company, this Court found a violation of due

process when the petitioner was denied an opportunity to

have his allegations of discrimination adjudicated pursu-

ant to the Illinois Fair Employment Practices Act. 455 U.S.

at 424. The Act required complainants to first bring any

charge of unlawful conduct before the Dlinois Fair Em-

ployment Practices Commission (“Commission”), and

provided that no further action could be taken on the

charge until the Commission convened a fact-finding

conference within 120 days. Id. at 424-25. In that particu-

lar case, the Commission failed to act in the time pre-

scribed, an error which the Supreme Court of Illinois

found to have extinguished the claimant’s action. Jd. at

427. This Court reversed, finding that a statutory limita-

tions period will simply not pass constitutional muster if it

extinguishes the rights of a litigant to be heard for reasons

beyond the litigant’s control. Jd. at 434.‘

right to a prior opportunity to be heard” before individual was deprived

of protected property interest); Boddie v. Connecticut, 401 U.S. 371, 390

(1971) (state’s requirement that a fee be paid upon filing an action in

court violated due process as applied to indigent claimants, “because it

operated] to foreclose a particular party’s opportunity to be heard”),

Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 681-82 (1930)

(state court’s decision denying an individual taxpayer any practicable

opportunity to contest a tax on federal constitutional grounds violated

due process, because “a State may not deprive a person of all existing

remedies for the enforcement of a right, which the State has no power

to destroy, unless there is, or was, afforded to him some real opportu-

nity to protect it”).

* In keeping with this principle, this Court has also, on several

occasions, interpreted statutes of limitation so as to avoid denying

litigants a reasonable opportunity to commence an action in court. For

example, in Urie v. Thompson, 337 U.S. 163, 169 (1949), the petitioner

sought to bring a cause of action under the Federal Employers’ Liability

Act (“FELA”) after he developed silicosis after years of exposure to silica

(Continued on following page)

In short, the decision below, which sanctions a legal

regime that deprives tort victims of any opportunity to

seek redress for their injuries, is in direct conflict with a

substantial body of Supreme Court case law to the con-

trary. Review is warranted to resolve this conflict and

remedy the widespread denial of due process hindering the

rights of Alabama toxic tort victims.

il. THE DECISION BELOW ALSO CONFLICTS

WITH NUMEROUS CONTRARY DECISIONS

OF OTHER STATE COURTS OF LAST RESORT.

Review is also warranted because the decision below

also conflicts with numerous state high court decisions

holding that the Due Process Clause of the U.S. Constitution

requires litigants to be afforded a reasonable opportunity to

commence a cause of action. In case after case, state courts

have held that a statute of limitations that does not provide

dust. FELA contained a three-year statute of limitations, which the

respondent urged accrued at the moment an individual contracted

silicosis. Id. This Court rejected the respondent’s reading of this

statute, noting that had the petitioner been required to commence an

action prior to any manifestation of his disability, “it would be clear that

[FELA] afforded [him] only a delusive remedy.” Jd. This Court went on to

find that the petitioner had three years from the time “when the accumu-

lated effects of the deleterious substances manifest[ed] themselves” in

which to file a claim. Id. at 170 (quoting Associated Indemnity Corp. v.

Industrial Accident Comm’n, 124 Cal. App. 378, 381 (Cal. Dist. Ct. App.

‘ 1932)); see also United States Fid. & Guar. Co. v. United States for the

Use and Benefit of Struthers Wells Co., 209 U.S. 306, 316 (1908) (statute

of limitations will not be construed so as to “tak{e] away absolutely a

present right to sue until a period of time, measured possibly by years,

shall have elapsed”) (internal citation omitted); Sohn v. Waterson, 84 US.

596, 599 (1873) (retroactive application of statute would violate the

Constitution, because “if an action accrued more than the limited time

before the statute was passed, a literal interpretation of the statute

would have the effect of absolutely barring such action at once”).

a reasonable time in which to commence a cause of action

violates federal due process. For example, the Supreme

Court of New Mexico found a violation of federal due process

under a set of facts strikingly similar to those presented

here. See Garcia v. LaFarge, 893 P.2d 428, 430 (N.M. 1995).

Garcia involved the constitutionality of New Mexico’s Medi-

cal Malpractice Act, which contained a statute of limitations

that barred claims for malpractice brought over three years

after the act of malpractice, regardless of a patient’s inability

to discover the malpractice until an injury manifested itself.

Id. at 432. The plaintiff in Garcia had been misdiagnosed by

his doctors, but was not aware of the malpractice until he

went into cardiac arrest and suffered irreversible brain

damage nearly three years later. Jd. at 430. Although his

guardians filed suit shortly thereafter, the lower court

granted summary judgment in favor of the defendant be-

cause the three-year limitations period had expired. Jd. The

Supreme Court of New Mexico reversed and, in doing so,

“reaffirm[ed] the principle that considerations of fairness

implicit in the Due Process Clauses of the United States and

New Mexico Constitutions dictate that when the legislature

enacts a limitations period it must allow a reasonable time

within which existing or accruing causes of action may be

brought.” Id. at 437. The decision below irreconcilably

conflicts with Garcia and countless other state high-court

decisions insofar as it adopted a position that gives toxic tort

victims no period of time — reasonable or otherwise — in

which to seek redress for their injuries.*

—

* See also Harris v. Omaha Hous. Auth., 698 N.W.2d 58, 64 (Neb.

2005) (upholding statute that provided over one year for plaintiff to

assert claims, ‘t noting that “the Legislature may not deprive a

plaintiff of an : » sady accrued cause of action without providing the

plaintiff a reasonable time in which to file the action”); Kaprow v. Bd. of

(Continued on following page)

The decision below also conflicts with numerous state

high court decisions involving amendments to preexisting

statutes of limitation that shortened the time for filing suit.

Many courts have held that federal due process forbids the

reduction of a statutory limitations period when doing so

prevents litigants from commencing a cause of action within

a reasonable time after the amendment takes effect. For

example, in Brothers v. Florence, 739 N.E.2d 733, 740-41

Educ. of Berkeley Twp., 622 A.2d 237, 242 (N.J. 1993) (upholding 90-day

limitations period because it provided litigant with “an opportunity,

granted at a meaningful time and in a meaningful manner for a

hearing appropriate to the nature of the case”) (internal citations

omitted); Dove v. Delgado, 808 P.2d 1270, 1273 (Colo. 1991) (finding a

two-year limitations period did not violate federal due process because

it was not “manifestly so limited as to amount to a denial of justice”)

(quoting Oberst v. Mays, 365 P.2d 902, 905 (Colo. 1961)); Black v. Ball

Janitorial Serv., Inc., 730 P-2d 510, 513-14 (Okla. 1986) (holding that

thirteen months in which to file suit was “a reasonable interval of time

[that did} not offend the concept of due process”) (emphasis in original);

Hansen v. A.H. Robins, Inc., 335 N.W.2d 578, 582 (Wis. 1983) (adopting

discovery rule for tort actions, because “{i]t is manifestly unjust for the

statute of limitations to begin to run before a claimant could reasonably

become aware of the injury”); Calder v. City of Crystal, 318 N.W.2d 838,

844 (Minn. 1982) (holding that statute requiring joinder of third parties

to a cause of action to occur within a period of fourteen months was a

reasonable resiriction and did not violate federal due process); Owens v.

Brochner, 474 P.2d 603, 605 (Colo. 1970) (applying discovery rule in

professional negligence cases, because to hold otherwise “makes a

mockery of the law”) (quoting Berry v. Branner, 421 P.2d 996, 998 (Or.

1966)); Wichelman v. Messner, 83 N.W.2d 800, 817-18 (Minn. 1957)

(holding that nine months in which one may preserve an interest in

property before the interest would be extinguished was reasonable),

Helterline v. People, 66 N.E.2d 345, 348 (N.Y. 1946) (holding that a

statute of limitations that precluded “any opportunity to bring a suit”

violated due process); State ex rel. White v. Dickerson, 113 P. 105, 110

(Nev. 1910) (noting the rule “in the Supreme Court of the United States,

and everywhere ... that a litigant or claimant cannot. be deprived

entirely of his right to bring an action by an act of the state or Legisla-

ture, as this would amount to a denial of justice”).

(N.Y. 2000), the New York Court of Appeals held that liti-

gants were entitled to a minimum one-year grace period in

which to commence a cause of action under a newly-enacted

statute that reduced a preexisting limitations period by three

years. Id. at 741. The court ruled that to hold otherwise

would have left litigants with an “unreasonably brief” time

in which to bring suit, id., or in some cases no time at all,

which would have violated federal due process. Id. at 738.

Likewise, in Flippin v. Jarrell, 270 S.E.2d 482, 487

(N.C. 1980), the Supreme Court of North Carolina found

that a reduction in a statutory limitations period that left

the plaintiff with only thirty-nine days in which to file a

medical malpractice claim after a misdiagnosed condition

manifested itself violated federal due process. In so find-

ing, the Court noted that no “North Carolina case ... has

approved a grace period shorter than five months” in

which to bring a cause of action before a statute of limita-

tions extinguished that right. Jd. at 487. See also id. n.8

(listing cases finding grace periods unreasonably short,

and therefore unconstitutional); Blevins v. Northwest

Carolina Util., 184 S.E. 517, 520 (N.C. 1936) (holding that

an amendment reducing the period of time in which a

plaintiff could bring an action for damages to land against

the state’s electric company from twenty years to six

months violated federal due process). Thus, for almost a

century, state high courts have affirmed the very principle

the court below rejected: statutes of limitation violate

federal due process when they fail to provide a reasonable

time in which to seek judicial redress.*

* See also Kratchovil v. Motor Club Ins. Ass’n, 588 N.W.2d 565, 573-

74 (Neb. 1999) (upholding limitations period, but affirming the princi-

ple that federal due process forbids the shortening of a limitations

(Continued on following page)

The decision below also runs contrary to a host of

state high court cases involving the constitutionality of

retroactive applications of statutes of limitation. Here

again, court after court has held that a statute of limita-

tions violates federal due process unless it affords litigants

a reasonable time in which to commence a cause of action

after the statute takes effect. See, e.g., Lott v. Haley, 370

So.2d 521, 524 (La. 1979) (holding that the limitations

period in a medical malpractice case violated federal due

process because it applied retroactively to immediately bar

the plaintiff’s claims); Bell v. Union & Planters’ Bank &

Trust Co., 130 So. 486, 487 (Miss. 1930) (declining, on

federal due process grounds, to apply a statute of limita-

tions retroactively because “the statute contain[ed] no

savings clause by which appellee was given time within

which to preserve its claim from the bar of the statute”).’

period when doing so deprives litigants of a reasonable time to com-

mence a cause of action after the amendment takes effect), Phipps v.

Sutherland, 111 S.E.2d 422, 426 (Va. 1959) (same); Tr of Sch. of Twp. No.

1 v. Batdorf, 130 N.E.2d 111, 115 (Ill. 1955) (same), Scheas v. Robertson,

238 P2d 982, 986-87 (Cal. 1951) (same); Baccus v. Banks, 192 P.2d 683,

689 (Okla. 1948) (same); In re Reed’s Estate, 142 P.2d 824, 828 (Kan.

1943) (same); Tipton v. Smythe, 94 S.W. 678, 680 (Ark. 1906) (same).

’ See also Univ. of Utah Hosp. v. Pence, 657 P.2d 469, 471 (Idaho

1983) (statute requiring application for medical indigency benefits to be

made within forty-five days after admission to hospital did not apply

retroactively; to hold otherwise “would unfairly penalize the appellant

for failure to comply with a statute of which it had no notice”), Allen

v. Dovell, 66 A.2d 795, 797 (Md. 1949) (applying reasonableness

standard to uphold retroactive application of statute of limitations);

Rand v. Bossen, 162 P.2d 457, 459-60 (Cal. 1945) (same); Berg v. Berg,

264 N.W. 821, 823-25 (Iowa 1936) (same); Philadelphia, Baltimore &

Washington R.R. Co. v. Quaker City Flour Mills Co., 127 A. 845, 847

(Pa. 1925) (declining to apply statute of limitations retroactively when

doing so would extinguish a plaintiff’s claims in violation of federal due

process); McNamara v. Marx, 66 So. 764, 765 (La. 1914) (statute

. (Continued on following page)

In direct cunflict with all of these holdings, the Ala-

bama Supreme Court interpreted its statute of limitations

so as to afford no opportunity whatsoever for victims of

torts whose injuries do not manifest within two years of

exposure to commence a cause of action. Review is war-

ranted to resolve this conflict between the Alabama

Supreme Court and numerous other state courts of last

resort.

providing six-month grace period in which to institute a cause of action

otherwise barred by retroactive applicati#n of limitations period did not

deprive litigants of property without due process of law); Adams &

Freese Co. v. Kenoyer, 116 N.W. 98, 100 (N.D. 1908) (holding that the

retroactive application of a statute that left three months arid twenty-

one days in which to initiate foreclosure proceedings on mortgages

violated federal due process because “it would be almost an utter

impossibility” to initiate proceedings within that period of time);

Fitzgerald v. Scovil Mfg. Co., 60 A. 132, 133 (Conn. 1905) (finding that a

statute of limitations applied retroactively was reasonable because it

provided over six months to bring a cause of action).

* Although a number of state high courts have upheld statutes of

limitation that deprived the litigant of any right to commence a cause of

action before an injury manifested itself, state legislatures in the wake of

these decisions have responded by amending the statutes of limitation to

incorporate a discovery rule. See, e.g., Bunker v. Nat'l Gypsum Co., 441

N.E.2d 8, 13-14 (Ind. 1982) (upholding as constitutional a statute of

limitations that limited time to assert disability benefit claims based on

exposure to asbestos to three years from exposure, regardless of whether

the asbestosis had manifested itself), superseded by statute, 1998 Ind.

Legis. Serv. 1-1998 (codified as amended at IND. CopE § 34-20-3-2(b)

(1998)); Owen v. Wilson, 537 S.W.2d 543, 545 (Ark. 1976) (holding that

statute of limitations which barred medical malpractice claims after two

years of the wrongful act complained of, regardless of the plaintiffs

ability to discover ai injury until after that time, did not violate federal

due process), superseded by statute, 1979 Ark. Acts 709, § 4 (codified as

amended at ARK. CODE ANN. § 16-114-203 (1979)); Laughlin v. Forgrave,

432 S.W.2d 308, 315 (Mo. 1968) (same), superseded by statute (codified

as amended at Mo. ANN. STAT. § 516.100 (West 2002)).

Ill. THE DECISION BELOW ALSO CONFLICTS

WITH NUMEROUS DECISIONS OF FEDERAL

COURTS OF APPEALS, WHICH ARE THEM-

SELVES SPLIT ON THE QUESTION PRE-

SENTED IN THIS CASE.

Review is also warranted because the decision below

also conflicts with the decisions of numerous U.S. Courts

of Appeals — which are themselves divided on whether a

statute of limitations may constitutionally eliminate a

cause of action without affording litigants a reasonable

time to bring suit. On one hand, contrary to the decision

below, many U.S. Courts of Appeals have held a state may

not constitutionally eliminate a cause of action without

giving a litigant a reasonable amount of time to file suit.

See, e.g., Fink v. Sheider, 192 F.3d 911, 915-16 (9th Cir.

1999) (where the retroactive application of a statute of

limitations still afforded the litigant three years in which

to commence his cause of action, the statute passed consti-

tutional muster because it provided a “reasonable time ...

to bring suit”); Brackney v. Combustion Eng’g, Inc., 674

F2d 812, 815 (9th Cir. 1982) (holding that a five-month

period in which to commence a cause of action “provided a

reasonable time ‘for the commencement of suit before the

bar takes effect,’” and therefore did not violate federal due

process) (quoting Wheeler, 137 U.S. at 255); D’Andrea uv.

Montgomery Ward & Co., Inc., 571 F.2d 403, 404 (7th Cir.

1978) (holding that two-year grace period in which to

commence action after attaining age of majority could not

be shortened by reducing age of majority from twenty-one

to eighteen years, because, “although a legislature may

shorten the period of limitations, it must afford potential

plaintiffs affected by the statutory change a reasonable

opportunity to file suit after the effective date of the

amendment”) (citing Terry, 95 U.S. at 633); Lamb v.

Powder River Live Stock Co., 132 F. 434, 442-43 (8th Cir.

1904) (applying reasonableness standard to strike down as

unconstitutional a statute of limitations that provided only

three months in which to commence a cause of action

based upon a judgment or decree rendered outside the

state, noting that a statute which fails to provide a rea-

sonable time in which to commence a cause of action is “an

unlawful attempt to extinguish rights arbitrarily”) (quot-

ing Wilson, 185 U.S. at 62).°

On the other hand, despite the clarity of this Court’s

repeated holdings that a statutory limitations period must

be reasonable to withstand federal due process scrutiny

(supra at Point I), several Courts of Appeals have upheld

state statutes of limitation that afforded litigants no time

* A number of cases have likewise affirmed the principle that a

limitations period must afford litigants a reasonable time to commence

a cause of action in the course of determining Congressional or state

legislative intent with respect to statutes of limitation. See, e.g.,

Ockerman v. May Zima & Co., 27 F.3d 1151, 1157 (6th Cir. 1994)

(holding that “Congress is without authority to extinguish claims by

shortening the statute of limitations unless the prior limitations period

has not yet expired and Congress provides a reasonable time in which

the plaintiff may file suit”); Williams v. Borden, Inc., 637 F.2d 731, 735

(10th Cir. 1981) (finding that the Oklahoma legislature intended that

limitations period for personal injury action should not begin to run

until the plaintiff knows, or with reasonable prudence should know,

that a serious or permanent condition has been induced by defendant’s

product); Capitan Grande Band of Mission Indians v. Helix Irrigation

Dist., 514 F.2d 465, 468-69 (9th Cir. 1975) (finding that Congress

intended federal statute of limitations, rather than shorter state statute

of limitations, to govern claims where application of state statute would

have eliminated plaintiff’s right to sue on the ground that a contrary

result “would be discordant with the Supreme Court’s view that the

constitutionality of statutes of limitations depend upon whether ‘a

reasonable time is given for the commencement of an action before the

bar takes effect’ ”) (citing Terry, 95 U.S. at-632-33).

whatsoever in which to commence a cause of action. See,

e.g., Douglas v. Hugh A. Stallings, M.D., Inc., 870 F.2d

1242, 1249-50 (7th Cir. 1989) (upholding as constitutional

a statute of limitations in a medical malpractice case that

limited the time in which to commence action to two years

from the act of malpractice, regardless of the patient's

ability to discover the malpractice during that time);

Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548,

554-55 (3d Cir. 1985) (holding that one-year wrongful

death and two-year survival limitations periods passed

constitutional muster, despite the fact that plaintiffs could

not have reasonably discovered cause of asbestos-related

diseases within that time); Braswell v. Flintkote Mines,

Ltd., 723 F.2d 527, 530-31 (7th Cir. 1984) (finding no

federal due process violation where statute limited the

time in which to commence product liability actions to two

years after last exposure to asbestos), Jewson v. Mayo

Clinic, 691 F.2d 405, 411-12 (8th Cir. 1982) (holding that

two-year limitations period for medical malpractice claims

that began to run when the physician’s treatment ceased

did not violate federal due process, even though statute

extinguished many claims before an injury manifested

itself).

In each of these cases, with the exception of Jewson, the state

legislature subsequently amended the statute at issue to incorporate a

discovery rule, or the state high court adopted the discovery rule in its

application of the statute. (The same is true with respect to all cases

cited infra at n.11.) No such action has been taken in the wake of

Jewson; thus, medical malpractice cases arising in Minnesota may be

extinguished before a plaintiff’s injury manifests itself. Jewson, 691

F 2d at 408 (citing MINN. STAT. § 541.07 (1980), amended by MINN. STAT.

§ 541.076 (1999)).

The source of this conflict appears to be confusion

about this Court’s Fourteenth Amendment jurisprudence.

The courts that have upheld statutes of limitation barring

a litigant’s claim before it even accrued principally relied

on this Court’s holding in Chase Securities Corporation v.

Donaldson, 325 U.S. 304 (1945). Chase, however, arose in

the context of a case involving whether or not a defendant

had a constitutional right to immunity from suit after a

statutory limitations period had expired, and whether the

limitations bar could be lifted so as to restore a plaintiff’s

right to commence a cause of action. 325 U.S. at 316.

Chase did not address the reasonableness of the limita-

tions period, nor did it address the plaintiff’s due process

rights." Notably, the Courts of Appeals that cite Chase for

" In addition to Chase, two federal Courts of Appeals have cited

United States v. Kubrick, 444 U.S. 111, 117 (1979), for the proposition

that statutes of limitation “represent a pervasive legislative judgment

that it is unjust to fail to put the adversary on notice to defend within a

specified period of time and that ‘the right to be free of stale claims in

time comes to prevail over the right to prosecute them.’” (Citation

omitted). Kubrick, however, was a case interpreting the proper accrual

date for claims arising under the Federal Tort Claims Act. The holding

in that case was that a plaintiff need only be aware that he has suffered

an injury, and not necessarily that he has a legally cognizable claim, for

his cause of action to accrue. Id. at 123-24. Additionally, a number of

cases cited no U.S. Supreme Court case law whatsoever in determining

that a statute that afforded litigants no time in which to commence a

cause of action passed constitutional muster. See, e.g., Dinh v. Rust Int'l

Corp., 974 F.2d 500, 502 (4th Cir. 1992) (finding no violation of federal

due process where statute limited actions for defective design, manufac-

ture, and installation of improvement to real property to five years

within furnishing the improvement, even though plaintiff was not

injured during that time); Clark v. Gulesian, 429 F.2d 405, 406 (1st Cir.

1970) (holding that “[u)nfortunate as the present result may be for the

plaintiff,” statute of limitations that accrued at the time of the wrongful

act can bar claim for medical malpractice before plaintiff was aware of

injury); Dincher v. Marlin Firearms Co., 198 F.2d 821, 823 (2d Cir.

1952) (upholding statute limiting time in which to commence suits for

(Continued on following page)

support fail to mention — let alone discuss - the numerous

decisions of this Court holding that unreasonably short

state statutes of limitations violate federal due process.

By contrast, the Court of Appeals decisions that do

scrutinize statutes of limitation to ensure that they afford

litigants a reasonable time in which to bring suit all cite

Terry and its progeny, instead of Chase, to guide their

analyses. The federal split of authority is especially

striking given the clarity of this Court’s teachings on the

matter. In any event, review is warranted to resolve the

disagreement not only between the Alabama Supreme

Court and numerous U.S. Courts of Appeals, but also to

rectify the disarray among the federal Courts of Appeals

regarding the constitutionality of statutes of limitation (or

judicial interpretations thereof) that unreasonably restrict

victims’ rights to sue.

IV. THE DECISION BELOW PERPETUATES A

MANIFEST INJUSTICE THAT THE ALABAMA

SUPREME COURT AND THE ALABAMA LEG-

ISLATURE HAVE PROVEN THEMSELVES

UNWILLING TO ADDRESS.

Finally, review should be granted because the decision

below perpetuates an injustice that both the Alabama

Supreme Court and the Alabama Legislature have refused to

address. As recounted in the opinion below, following the

Alabama Supreme Court’s decision in Garrett, 368 So.2d at

521, which held that the statute of limitations in a toxic tort

personal injury caused by defective gun from one year of sale of gun as

constitutional, even though injury occurred outside the limitations

period).

case began to run when the plaintiff was last exposed to the

toxic substance, the Alabama Legislature passed a new

statute of limitations that mirrored the so-called “discovery

rules” that are currently in place in every other state in this

country. See App. 25. See also App. 112-27 (list of accrual

rules in other jurisdictions). Under that new discovery rule,

the statute of limitations would not have begun to run until

the date the plaintiff discovered, or should have discovered,

the injury (App. 25) ~ an entirely appropriate rule that, if it

had been applied to petitioner’s decedent here, would have

afforded him a reasonable time in which to file suit. The

entire post-Garrett statute was declared invalid, however, on

the ground that a portion of the statute that included a rule

of repose was unconstitutional. App. 25.”

Rather than simply reenact the discovery rule on a

prospective basis, the Alabama Legislature, which had

apparently undergone a political change of heart, aban-

doned any attempt to protect the rights of most toxic tort

victims in the state of Alabama, and instead enacted a

very narrow discovery rule that merely applies to victims

of asbestos exposure. App. 25. Under that statute, which

* See Lankford v. Sullivan, Long & Hagerty, 416 So.2d 996, 1004

(Ala. 1982) (holding that statute of repose that cut off tort victims’

rights to sue ten years after a product’s manufacture violated due

process, thereby invalidating entire statute). In this case, by contrast,

the very same Court upheld a regime that bars toxic tort victims’ rights

to sue for their injuries at all, without even bothering to address the

due process implications of its ruling — or its obvious conflict with

Lankford. lronically, however, even Lankford ~ a progressive decision

that sought to advance victims’ rights in the state of Alabama —

ultimately backfired because the discovery rule that was struck down

along with the repose provision was never reenacted by the Legislature,

leaving Alabama tort victims worse off than if Lankford had never been

decided in the first place.

remains in effect to this day, only victims of asbestos

exposure enjoy the benefit of a discovery rule; all remain-

- ing toxic tort victims, like petitioner's decedent here, must

sue within two years of their exposure to a hazardous

substance, even if they have not yet manifested any injury.

App. 25-26. Their cases are then subject to dismissal on

the ground that their causes of action have not yet accrued

under the holding of Hinton and numerous other decisions

of the Alabama Supreme Court, which require a “manifest,

present injury” as a prerequisite to suit. App. 36-37.

There the situation stands in the State of Alabama. In

recent years there have been several attempts to introduce

bills into the Legislature to address this problem, but the

Legislature has refused to act. See App. 4-5; App. 13; App.

25. Meanwhile, the Alabama Supreme Court ducked the

issue in this case without even bothering to write a majority

opinion. Curiously, however, each of the five justices who

formed the silent majority joined one of two “special concur-

rences” that purported to explain the basis for the major-

ity’s decision. App. 2-15. The first concurrence candidly

admitted that “[t]he public-policy question presented to this

Court in this case is one of profound importance, not only to

the parties involved, but to countless others as well.” App.

7. Both the concurrences concluded, however, that the

appropriate solution was for the Legislature to take action

(see App. 7 and 14-15) — this despite the fact that the

Legislature has repeatedly and steadfastly refused to take

any action at all. Clearly, the buck is being passed in the

State of Alabama, and the price is ultimately being paid by

victims like Jack Cline, who are being deprived of their

right to seek any redress for their injuries.”

This is by no means a trivial problem. Alabama ranks

fourth in the nation for the production of toxic wastes and

thirteenth for total toxic releases. See Robert Leslie

Palmer, Withholding Justice from Toxic Tort Victims, 28

AM. J. TRIAL ADVOCACY 567, 568 (2005) (citing 2001 Toxics

Release Inventory, United States Environment Protection

Agency, available at http://www.epa.gov/tri/tridata/tri01/

state/Alabama.pdf). Alabama ranks tenth in the nation in

the incidence of lung cancer and sixteenth in the incidence

of all cancers. Jd. (citations omitted). It is estimated that,

by the end of 2004, approximately 24,270 Alabamians will

have been diagnosed with cancer and 10,000 Alabamians

will have died as a result of cancer. Jd. (citations omitted).

A substantial number of these cancer cases will be attrib-

utable to exposure to toxic substances, but, under the

* Although the first special concurrence recognized the “appeal” to a

discovery rule as applied to this case, App. 6, it concluded that creation of

such a rule constituted a “policy change” that “falls squarely within the

province and competence of the legislative branch of our government.”

App. 6. As the four dissenting justices recognized, however, this rationale

is clearly erroneous, given that the decision in Garrett was itself a “court-

made” rule, and thus could appropriately be reversed by a decision of the

Alabama Supreme Court without affecting any of the statutory limita-

tions periods enacted by the Alabama Legislature. See App. 27. Indeed, as

the dissent rightfully observed, if anything, it is Garrett itself, which

announced a bizarre accrual rule that is nowhere reflected in any of the

statutory provisions governing toxic tort cases, that “represents judicial

public policy-making of the type the majority in this case now rightfully

decries.” App. 20. As the dissent properly concluded, the problem created

by Garrett can and should “be corrected now.” App. 39. See also App. 47

(“(T]he Court, having created the Garrett rule, should assume the

responsibility for overruling it and replacing it with a rule that conforms

to established principles for determining when a court cause of action

accrues.”).

perverse rules adopted by the Alabama Supreme Court and

enshrined by the decision below, many — if not most — of the

victims will find themselves locked out of Alabama courts.

Plainly, this will not do. The decision below should be

reversed to prevent this manifest injustice and give Ala-

bama citizens the right to seek redress for their injuries.

CONCLUSION

This petition for a writ of certiorari should be granted.

Respectfully submitted,

ROBERT LESLIE PALMER, Esq. LESLIE A. BRUECKNER, Esq.

ENVIRONMENTAL LITIGATION (Counsel of Record)

Group, P.C. Amy RADON, Esq.

3529 Seventh Avenue South PUBLIC JUSTICE, P.C.

Birmingham, AL 35222 1825 K Street, N.W.

(205) 328-9200 Suite 200

Washington, DC 20006

(202) 797-8600

ARTHUR H. BRYANT, ESQ.

PUBLIC JUSTICE, P.C.

555 12th Street

Suite 1620

Oakland, CA 94607

(510) 622-8201

App. 1

2007 WL 30070

Notice: This opinion is subject to formal revision before

publication in the advance sheets of Southern Reporter.

Readers are requested to notify the Reporter of Deci-

sions, Alabama Appellate Courts, 300 Dexter Avenue,

Montgomery, Alabama 36104-3741 ((334) 242-4621), of any

typographical or other errors, in order that corrections

may be made before the opinion is printed in Southern

Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2006-2007

1041076

Jack Cline

Ashland, Inc., et al.

Appeal from Jefferson Circuit Court,

Bessemer Division

(CV-01-423)

On Application for Rehearing

(Filed Jan. 5, 2007)

SEE, Justice.

APPLICATION GRANTED; NO-OPINION AFFIR-

MANCE OF OCTOBER 4, 2005, WITHDRAWN; AF-

FIRMED. NO OPINION.

App. 2

See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.

Nabers, C.J., and See, Stuart, Smith, and Bolin, JJ.,

concur specially.

Lyons, Harwood, Woodall, and Parker, JJ., dissent.

SEE, Justice (concurring specially).

Jack Cline appeals from the summary judgment

entered by the Jefferson Circuit Court, which held that

Cline’s claims are barred by the statute of limitations. On

October 14, 2005, this Court affirmed the summary

judgment without an opinion. Cline applied for a rehear-

ing. We granted his application and heard oral argument.

This Court today affirms the summary judgment on

rehearing, without an opinion, and I write specially to

explain why I concur in its decision to do so.

Cline alleges that from 1968 to 1987, while he was

working for Griffin Wheel Company of Bessemer, he was

exposed to the chemical benzene. He retired from Griffin

Wheel in 1995, and he was diagnoséd with acute myeloge-

nous leukemia (“AML”) on October 7, 1999. On April 6,

2001, Cline sued Ashland, Inc.; Chevron Phillips Chemical

L.P., the successor in interest to Chevron Chemical Com-

pany, LLC; and ExxonMobil Corporation, alleging that the

defendants manufactured and/or supplied the benzene to

which he was exposed during the course of his employ-

ment at Griffin Wheel. He alleges that the defendants are

responsible for his developing AML and are liable under

the Alabama Extended Manufacturer’s Liability Doctrine

(“the AEMLD”). The defendants moved for a summary

judgment, arguing that Cline’s claims are barred by the

applicable statute of limitations. Cline argued that the

statute of limitations did not begin to run until he was

App. 3

diagnosed with AML. The trial court entered a summary

judgment in favor of the defendants, holding that the

applicable statute of limitations began to run in 1987,

when Cline was last exposed to the benzene. Cline ap-

pealed the trial court’s summary judgment as to his

AEMLD claim, and this Court affirmed the summary

judgment, without an opinion. Cline applied for a rehear-

ing, which this Court granted.

In 1979, in Garrett v. Raytheon Co., 368 So. 2d 516

(Ala. 1979), this Court considered the case in which Jerry

Garrett sued several companies, claiming that he had

unknowingly been exposed to massive amounts of radia-

tion from 1955 to 1957 because, he argued, the companies

had negligently designed certain radar systems where he

worked. He did not experience any health problems as a

result of the radiation exposure until March 1975, when

his hair suddenly turned white and then fell out. He

consulted several doctors but it was not until March 1977

that a radiologist told him that his earlier radiation

exposure had caused his health problems. Although

Garrett brought his action within 1 year of the radiolo-

gist’s diagnosis, he did so more than a year after the first

manifestation of his health problems and more than 20

years after his last exposure to the radiation. At the time

this Court decided Garrett, the applicable statute of

limitations required that “[a]ctions for any injury to the

person or rights of another not arising from contract and

not specifically enumerated in this section” be commenced

within one year from accrual. § 6-2-39(a)(5), Ala. Code

1975.’ In Garrett, this Court held that “the statute of

' This provision was recodified at § 6-2-38(), Ala. Code 1975, after

the limitations period was increased to two years in 1985.

App. 4

limitations of one year began to run when [the] plaintiff

was last exposed to radiation and the plaintiff’s ignorance

of the tort or injury, there being no fraudulent conceal-

ment, does not postpone the running of the statute until

the tort or injury is discovered.” 368 So. 2d at 521.

The Garrett Court invited the legislature to respond.

The legislature responded by enacting Act No. 79-468, Ala.

Acts 1979.2 Act No. 79-468 provided a discovery rule for

cases in which a person has been injured by a toxic sub-

stance over a period of time. § 6-5-502, Ala. Code 1975.

Under the discovery rule, the statute of limitations did not

begin to run until the date the plaintiff discovered, or

should have discovered, the injury. § 6-5-502, Ala. Code

1975. The legislature, however, provided in Act No. 79-468

that if any part of the Act was declared unconstitutional,

then the entire Act would become inoperative. § 6-5-504,

Ala. Code 1975. In accordance with this limitation, this

Court invalidated the entire Act wuen it held that a

particular section of Act No. 79-468 concerning a rule of

repose was unconstitutional. With Act No. 79-468 no

longer in effect, the law reverted to the “last exposure”

rule declared in Garrett. Since then, the legislature has

acted in the toxic-tort area, but has limited the scope of

the subsequent act to injuries resulting from exposure to

asbestos. § 6-2-30(b), Ala. Code 1975. The Alabama Legis-

lature also _has considered, and thus far chosen not to

2 Act No. 79-468 is codified at §§ 6-5-500 through -504, Ala. Code

1975.

App. 5

adopt, proposals that would provide a discovery rule in

cases of the nature of this one.’

This Court also has consistently chosen to continue to

follow Garrett’s “last exposure” rule. See, e.g., Moore v.

Glover, 501 So. 2d 1187, 1190 (Ala. 1986) (“[T]his Court’s

opinion in Garrett v. Raytheon Co., 368 So. 2d 516 (Ala.

1979), settled the question of the ‘accrual’ of a plaintiff’s

claim in a radiation exposure case for purposes of deter-

mining when the applicable statute of limitations begins to

run... .”); Hubbard v. Liberty Mut. Ins. Co., 599 So. 2d 20,

21 n.2 (Ala. 1992) (“I]t seems to be settled in Alabama

that the ‘date of injury,’ which starts the running of the

statutory period of limitations in a continuous exposure

case, occurs when the plaintiff was last exposed to the -

chemical or condition causing his injuries.”).

The legislature has acted in this area both by enacting

legislation and by considering, and thus far not adopting,

proposed legislation. See §§ 6-5-500 through -504, Ala.

Code 1975, and citations in footnote 3. The power “to

declare what the law shall be” is a legislative power, and

this Court will not revisit an area of the law in which the

legislature has already acted. City of Daphne v. City of

Spanish Fort, 853 So. 2d 933, 942 (Ala. 2003).

The determination of when the statute of limitations

ought to begin to run in toxic-substance-exposure cases

depends on a weighing of competing public policies. We

seek in Alabama to compensate those who have been

injured. Ala. Const. 1901, Art. I, § 13 (“[T]hat every person,

* See Senate Bill 534 and Senate Bill 535 (2006 Regular Session);

House Bill 659 and House Bil] 660 (2005 Regular Session); and House

Bill 93 and House Bill 103 (2004 Regular Session).

App. 6

for any injury done him ... shall have a remedy by due

process of law; and right and justice shall be administered

without sale, denial, or delay.”). On the other hand, we

also seek to avoid stale claims and the injustice such

claims can engender. Travis v. Ziter, 681 So. 2d 1348, 1355

(Ala. 1996) (“At its core, the statute of limitations ad-

vances the truth-seeking function of our justice system,

promotes efficiency by giving plaintiffs an incentive to

timely pursue claims, and promotes stability by protecting

defendants from stale claims.”), The proper balance

between these competing public policies requires a weigh-

ing, and “[iJt is well established that ‘“{t]he Legislature is

endowed with the exclusive domain to formulate public

policy in Alabama... .”’” Leonard v. Terminix Int'l Co.,

854 So. 2d 529, 534 (Ala. 2002) (citations omitted).

Justice Harwood states in his dissent that he would

require that there be a manifest, physical injury before the

statute of limitations begins to run in these toxic-

substance-exposure cases. He would apply this interpreta-

tion prospectively only, as a forward-looking resolution of

the problem. There is an appeal to the proposal; it looks

very much like the statute enacted by the legislature in

response to this Court’s decision in Garrett, but without

the repose provision that this Court held unconstitutional

and that the legislature considered essential to the Act.

The imposition of this sort of policy change, however, falls

squarely within the power and competence of the legisla-

tive branch of our government. Berdeaux v. City Nat'l

‘ “Within their respective spheres each branch of government is

supreme. Judicial power and legislative power are coordinate, and

neither can encroach upon the other.” Morgan County Comm'n v.

Powell, 292 Ala. 300, 306, 293 So. 2d 830, 834 (1974) (citations omitted).

App. 7

Bank of Birmingham, 424 So. 2d 594, 595 (Ala. 1982)

(“[W]e cannot agree that redress should come by rewriting

the law of torts.... To be able to answer [the question

presented by the appeal] would require data that a court is

ill equipped to gather, but which the legislature is equally

capable of assessing. The issue itself presents a policy

matter peculiarly within the province of the legislative as

opposed to the judicial branch of government. ... [CJourts

... Should leave to the executive and legislative branches

matters requiring resolution in the body politic.”).

The public-policy question presented to this Court in

this case is one of profound importance, not only to the

parties involved, but to countless others as well; however,

this Court’s jurisdiction and competence are not defined by

the importance of the matter presented. See Etowah

County Comm’n v. Hayes, 569 So. 2d 397, 398 (Ala. 1990)

(“In testing the absolutism of the authority of the legisla-

tive branch to appropriate operational funds for the

executive branch, the judicial branch of government is

constrained not to substitute its judgment for that of the

legislature and thus usurp the plenary power of that

branch.”). The legislature is entrusted with making the

public policy of this State, whether or not it is public policy

of which this Court would approve. Boles v. Parris, [Ms.

1030744, August 18, 2006] ___ So. 2d __, ___ (Ala. 2006)

(“[I]t is well established that the legislature, and not this

Court, has the exclusive domain to formulate public policy

in Alabama.”); Marsh v. Green, 782 So. 2d 223, 231 (Ala.

2000) (“Matters of policy are for the Legislature and,

whether wise or unwise, legislative policies are of no

concern to the courts.”). The legislature is empowered to

investigate the full impact of a public-policy decision on

not only the parties involved in a particular case, but on

App. 8

the State as a whole; it is designed to offer the very kind of

forward-looking resolution Justice Harwood proposes in

the dissent. See Holmes v. Circo, 196 Neb. 496, 505, 244

N.W.2d 65, 70 (1976) (“The Legislature may hold hearings,

debate the relevant policy considerations, weigh the

testimony, and, in the event [it] determines a change in

the law is necessary or desirable, it can then draft statutes

which would most adequately meet the needs of the public

in general, while balancing the interest of specific sec-

tors.”). I, therefore, defer to the legislature for a resolution

of the problem presented by this case.

I would also note that the proposed prospective

application of the interpretation of the law advocated by

the dissent to only future litigants may exceed the power

of this Court. This Court has stated that whether to apply

an interpretation of the law retroactively or prospectively

is a “matter of judicial discretion,” State v. Morrison

Cafeterias Consol., Inc. of Delaware, 487 So. 2d 898, 903

(Ala. 1985), but that this Court’s “strong inclination is to

avoid establishing rules that are to be applied prospec-

tively only.” Alabama State Docks Terminal Ry. v. Lyles,

197 So. 2d 432, 439 (Ala. 2001). We have stated that

applying the law retroactively “‘is in keeping with the

traditional function of the courts to decide cases before

them based on their current understanding of the law. ...

It also reflects the declaratory theory of law, . . . according

to which the courts are understood only to find the law, not

to make it” McCullur v. Universal Underwriters Life Ins.

Co., 687 So. 2d 156, 165 (Ala. 1996). “‘Courts do not and

cannot change the law by overruling or modifying former

opinions. They only declare it by correcting an imperfect or

erroneous view. The law itself remains the same.’” G.P. v.

A.A.K., 841 So. 2d 1252, 1255 n.1 (Ala. Civ. App. 2002)

App. 9

(quoting Crigler v. Shepler, 79 Kan. 834, 842, 101 P. 619,

621 (1909)).

The Supreme Court of the United States has re-

nounced the practice of prospective application of judicial

decisions. See Harper v. Virginia Dep't of Taxation, 509

U.S. 86, 97 (1993) (“When this Court applies a rule of

federal law to the parties before it, that rule is the control-

ling interpretation of federal law and must be given full

retroactive effect in all cases still open on direct review

and as to all events, regardless of whether such events

predate or postdate our announcement of the rule.”);

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752 (1995)

(following Harper and summarizing the decision as fol-

lows: “this Court, in Harper v. Virginia Dept. of Taxation,

509 U.S. 86, 97, ... held that, when (1) the Court decides a

case and applies the (new) legal rule of that case to the

parties before it, then (2) it and other courts must treat

that same (new) legal rule as ‘retroactive, applying it, for

example, to all pending cases, whether or not those cases

involve predecision events”). In his special concurrence in

Harper, Justice Scalia explained that prospective applica-

tion of judicial decisions violates the separation-of-powers

doctrine. Harper, 509 U.S. at 107 (Scalia, J., concurring).

(“Fully retroactive decisionmaking was considered a

principal distinction between the judicial and the legisla-

tive power: ‘[I]t is said that that which distinguishes a

judicial from a legislative act is, that the one is a determi-

nation of what the existing law is in relation to some

existing thing already done or happened, while the other is

a predetermination of what the law shall be for the regula-

tion of all future cases.’ T. Cooley, Constitutional Limita-

tions *91 [(1868)].”).

App. 10

I agree with Justice Scalia and the Supreme Court of

the United States that prospectivity is incompatible with

the traditional conception of judicial power. Moreover, the

Alabama Constitution unequivocally states that “the

judicial [branch] shall never exercise the legislative and

executive powers, or either of them; to the end that it may

be a government of laws and not of men.” Article III, § 43,

Ala. Const. 1901. As I stated in State ex rel. King v. Mor-

ton, [Ms. 1051771, October 12, 2006] ___ So. | Ee ee

(Ala. 2006) (See, J., concurring specially): “Unlike the

Constitution of the United States, from which we may

deduce a general, but limited, separation-of-powers doc-

trine by its structure, the Constitution of Alabama pro-

vides expressly for a separation of powers that appears

more rigorous than that of the federal constitution.”

(Footnote omitted.) Certainly, if the prospective applica-

tion of a judicial decision is violative of the United States

Constitution, it is also violative of the Alabama Constitu-

tion. As we stated in City of Daphne v. City of Spanish

Fort, 853 So. 2d 933, 942 (Ala. 2003): “‘“[T]o declare what

the law is, or has been, is a judicial power; to declare what

the law shall be, is legislative.”’” (quoting Sanders v.

Cabaniss, 43 Ala. 173, 180 (1869), quoting in turn Thomas

M. Cooley, Constitutional Limitations 91-95 (1868)).

For the foregoing reasons, I concur in affirming the

summary judgment.

Nabers, C.J., and Stuart, J., concur.

App. 11

SMITH, Justice (concurring specially).

I concur in affirming the judgment of the trial court. I

write specially to emphasize, as this Court has in the past,

that the legislature must act to determine the date of the

accrual of the cause of action in toxic-substance-exposure

cases.

Although the Justices in Garrett v. Raytheon Co., 368

So. 2d 516 (Ala. 1979), were split as to the proper defini-

tion of “accrued,” both the majority opinion and the dis-

senting Justices called on the legislature to enact

legislation addressing that definition. Garrett thus placed

the ball in the legislature’s court.

The legislature responded by enacting Act No. 79-468.

Ala. Acts 1979 (codified at Ala. Code 1975, §§ 6-5-500

through -504). Section 6-5-502 provided a discovery rule

for actions seeking damages for injuries resulting from

exposure to toxic substances. However, § 6-5-502(c), which

contained a rule of repose, was declared unconstitutional

in Lankford v. Sullivan, Long & Hagerty, 416 So. 2d 996

(Ala. 1982), as recognized in Daniel v. Heil Co., 418 So. 2d

96 (Ala. 1982). Because § 6-5-504 provided that in the

event any part of §§ 6-5-500 through -504 was declared

invalid the entire act would become inoperable, Garrett

remained the law. Soon thereafter, the legislature again

_acted to alter this Court’s definition of “accrued” in toxic-

substance-exposure cases by enacting Act No. 80-566, Ala.

Acts 1980, but this time it limited the act strictly to claims

alleging injury from asbestos. See Ala. Code 1975, § 6-2-30(b).°

* Act No. 80-566 was also challenged as unconstitutional, and part

of it was declared unconstitutional. See Tyson v. Johns-Manville Sales

Corp., 399 So. 2d 263 (Ala. 1981). However, unlike Act No. 79-468, it did

(Continued on following page)

App. 12

The definition of “accrued” in toxic-substance-exposure cases

other than asbestos cases was left untouched, and the

legislature is presumed to have knowledge of this fact.

Mobile Infirmary Med. Ctr. v. Hodgen, 884 So. 2d 801, 814

(Ala. 2003) (“The Legislature, when it enacts legislation, is

presumed to have knowledge of existing law and of the

judicial construction of existing statutes.”).

This Court has continued to apply the holding of

Garrett since 1979. See, e.g., Ramey v. Guyton, 394 So. 2d

2,5 (Ala. 1980) (stating that “while rejecting the ‘discovery

of injury’ rule, [Garrett] remained true to the common law

‘accrual’ principle”); Tyson v. Johns-Manville Sales Corp.,

399 So. 2d 263, 268 (Ala. 1981) (noting that, before the

enactment of Act No. 80-566, Garrett held that a claim

based on injury from exposure to asbestos accrued on the

date of plaintiff’s last exposure); American Mut. Liab. Ins.

Co. v. Phillips, 491 So. 2d 904, 908 (Ala. 1986) (holding

that “the longstanding damages rule followed in {Garrett]”

was applicable in a case involving an injury sustained

from exposure to cotton fibers); Moore v. Glover, 501 So. 2d

1187, 1190 (Ala. 1986) (“[T]his Court’s opinion in [Garrett],

settled the question of the ‘accrual’ of a plaintiff’s claim in

a radiation exposure case for purposes of determining

when the applicable statute of limitations begins to

run... .”); Hillis v. Rentokil, Inc., 596 So. 2d 888, 890 (Ala.

1992) (applying the rule in Garrett that the statute of

limitations begins to run from the “date of injury”); Hub-

bard v. Liberty Mut. Ins. Co., 599 So. 2d 20, 21 n.2 (Ala.

1992) (citing Garrett for the proposition that “the ‘date of

not contain a clause nullifying the entire act if a portion were found to

be invalid. Thus, the discovery rule provided by Act No. 80-566 in

asbestos-exposure cases remains operable.

App. 13

injury,’ which starts the running of the statutory period of

limitations in a continuous exposure case, occurs when the

plaintiff was last exposed to the chemical or condition

causing his injuries”); Johnson v. Garlock, Inc., 682 So. 2d

25 (Ala. 1996) (applying the rule of Garrett in an asbestos-

exposure case in which § 6-2-30(b) did not apply); and

Becton v. Rhone-Poulenc, Inc., 706 So. 2d 1134, 1135 (Ala.

1997) (citing Garrett for the proposition that “[flor pur-

poses of an action based on continuous exposure to a

hazardous substance, the date of the injury is the day on

which the plaintiff was last exposed to the hazardous

substance causing the injuries”). See also Payton v. Mon-

santo Co., 801 So. 2d 829 (Ala. 2001).

Proposals to adopt a discovery rule or to redefine

when a cause of action accrues in toxic-substance-exposure

cases have been introduced in the legislature, but those

proposals have not been enacted. See Senate Bill 535

(2006 Regular Session) (expanding Ala. Code 1975, § 6-2-

30(b), to provide that a civil action for any injury to the

person resulting from exposure to “any toxic substance”

shall be deemed to accrue on the first date the injured

party, through reasonable diligence, should have reason to

discover the injury); House Bill 660 (2005 Regular Session)

(proposing a constitutional amendment to provide that a

civil cause of action for exposure to toxic substances shall

be deemed to accrue on the date the injured party should

have reason to discover the injury giving rise to the cause

of action); and House Bill 103 (2004 Regular Session)

(providing that an action for breach of warranty or for

injury caused by the “latent” effects of exposure to “sub-

stances” must be brought within two years from the date

the injury is discovered or, by the exercise of reasonable

diligence, should have been discovered).

App. 14

On some level, all statutes of limitations can lead to

harsh results. On the other hand, the absence of statutes

of limitations, or statutes of limitations that allow the

litigation of exceedingly old and stale cases, can also lead

to harsh results. Given the various types of toxic sub-

stances and injuries that could result from exposure to

such substances, the science involved in detecting and

diagnosing injuries or the manifestation of injuries result-

ing from such exposure, and the public-policy considera-

tions that must be taken into account, I believe the

legislature is better equipped than is this Court to formu-

late a proper definition of “accrued” in these types of cases.

The legislature has certain fact-finding and investigative

capabilities that this Court lacks; it is thus in a better

position to weigh the countervailing public-policy consid-

erations inherent in properly determining “how long is too

long.” See Leonard v. Terminix Intl Co., 854 So. 2d 529,

534 (Ala. 2002) (holding that the legislature, and not this

Court, has the exclusive domain to formulate public policy

in Alabama); Berdeaux v. City Natl Bank of Birmingham,

424 So. 2d 594, 595 (Ala. 1982) (declining to create a duty

requiring banks to provide protection for customers using

automatic teller machines because to do so “would require

data that a court is ill equipped to gather, but which the

legislature is especially capable of assessing” and noting

that “[t]he issue itself presents a policy matter peculiarly

within the province of the legislative as opposed to the

judicial branch of government”); and Matthews v. Moun-

tain Lodge Apartments, Inc., 388 So. 2d 935, 938 (Ala.

1980) (plurality opinion) (stating that the legislature -

through hearings and other fact-finding procedures — is

better equipped to accurately weigh various factors in

creating law in accord with public policy).

App. 15

Given the long history of Garrett, the difficulty in

crafting a proper definition of “accrued” in toxic-substance-

exposure cases, along with the public-policy considerations

that must be taken into account in formulating such a

definition, and the legislature’s specific prior action in

asbestos-exposure cases, I believe that the legislature is

the more appropriate body to impose a new rule.

Bolin, J., concurs.

HARWOOD, Justice (dissenting).

In their special concurrences to this Court’s decision to

affirm the trial court’s summary judgment in this appeal

without an opinion, Justice See and Justice Smith empha-

size that it is the role of the legislature, not this Court, to

declare public policy. I quite agree. Indeed, the legislature

has already acted and declared the public policy applicable

to this case, by means of the interaction of two provisions

of the Code of Alabama. Section 6-2-30(a), Ala. Code 1975,

provides, in pertinent part, that “[aJll civil actions must be

commenced after the cause of action has accrued within

the period prescribed ... and not afterwards. ...” Section

6-2-38(/), Ala. Code 1975, provides that an action of the

type Jack Cline has filed “must be brought within two

years.” Therefore, the legislatively declared public policy is -

that an action such as Cline’s can be filed (within the two-

year limitations period) only after the cause of action has

accrued. By this dissent, I do not presume to advocate a

contrary public policy; I simply attempt to honor the public

policy the legislature has declared, by correctly construing

the statutory language “cause of action has accrued” in

§ 6-2-30(a) in accord with traditional principles of tort law.

App. 16

Neither special concurrence takes the position that

the construction given that language in Garrett ». Ray-

theon Co., 368 So. 2d 516 (Ala. 1979), was in accord with

those principles and true to the legislature’s intent. They

simply take the position, in support of which they offer

reasoned argument, that any chasige from the rule set out

in Garrett must, at this late date, be left exclusively to the

legislature. For the reasons | set forth hereinafter, I

respectively disagree. :

First, however, these three miscellaneous points:

Although Justice See fairly states the basic facts underly-

ing Cline’s tort claim, it is appropriate to note that it is

undisputed that acute myelogenous leukemia can be

caused by exposure to benzene, which this Court described

in Shell v. Union Oil Co., 489 So. 2d 569, 570 (Ala. 1986),

as “a carcinogen known to cause leukemia.” Also, Cline

made the alternative argument before the trial court and

on original submission on this appeal that his “last expo-

sure” in 1999 to benzene contained in the product of an

alleged “joint tortfeasor” of the present appellees should

serve to delay the running of the statute of limitations as

to them as well. Because this contention was not revisited

in Cline’s brief in support of his application for rehearing,

it was thereby waived and will not now be considered.

Birmingham News Co. v. Horn, 901 So. 2d 27, 77 (Ala.

2004). Last, the defendants have not attempted to argue

that the natural history of acute myelogenous leukemia is

such that Cline must have been suffering from it, i.e., that

he must have actually experienced a manifest, present

injury in connection with it, before his October 7, 1999,

diagnosis. Accordingly, Cline’s action filed on April 6, 2001,

was timely under the two-year statute of limitations, if the

commencement of the running of that statute is measured

App. 17

from October 7, 1999, or any other time within two years

before April 6, 2001.

“

Relevant Caselaw and Legislation

In Garrett, supra, Jerry Kenneth Garrett filed an

action in 1978 against seven companies he alleged had

designed, manufactured, or serviced certain radar systems

with which he had had contact from 1955 to 1957; he

asserted that because of the defective condition of those

systems, he unknowingly had been exposed to massive

dosages of dangerous radiation. He had experienced no

symptoms or health problems until March 1975. He then

consulted numerous doctors, but the nature of his prob-

lems was not diagnosed until March 1977 when a radiolo-

gist advised him that his problems were the result of his

earlier radiation exposure. Garrett’s action was filed

within one year of that diagnosis, but more than one year

after the first manifestation of his health problems and

more than two decades after his last exposure to the

radiation. Then, as now, § 6-2-30, Ala. Code 1975, required

that all civil actions must be commenced within the

statutorily prescribed limitations period “after the cause of

action has accrued” (emphasis supplied). The then appli-

cable statute of limitations, former § 6-2 39(a)(5), required

“{alctions for any injury to the person or rights of another

not arising from contract and not specifically enumerated

in this section” to be commenced within one year from

accrual. (That provision was recodified as § 6-2-38(1) when

the limitations period was increased to two years in 1985.)

The opinion of the five-member Garrett majority (four

Justices dissented) commenced: “When does the statute of

limitations begin to run for injuries suffered as a result of

App. 18

radiation exposure? We conclude that it begins to run

when the plaintiff is exposed to radiation and an injury

occurs.” 368 So. 2d at 517-18 (emphasis supplied). How-

ever, the majority then collapsed injury into exposure,

‘holding that “the statute of limitations of one year began

to run when plaintiff was last exposed to radiation and

plaintiff’s ignorance of the tort or injury, there being no

fraudulent concealment, does not postpone the running of

the statute until the tort or injury is discovered.” The

Court justified this conclusion by stating, “lif plaintiff was

not injured in 1955-1957 then defendant committed no

negligent act at that time which resulted in injury and

defendant would not be liable. If plaintiff did become

injured or damaged at that time, then the statute of

limitations has run.” 368 So. 2d at 521. The Court simi-

larly reasoned, “[djamage must have occurred at the time

of exposure else defendant would not be liable. It is simply

that all the progressive nature of the injury has not made

itself manifest at the time of the last exposure.” 368 So. 2d

at 520. As Justice Shores observed in her dissent, “(t]he

majority opinion assumes that the injury occurred simul-

taneously with the plaintiff’s exposure to the radiation.”

368 So. 2d at 526. She disagreed, stating that “[t]he

defendant’s exposure of the plaintiff to radiation would not

create a cause of action in the plaintiff until injury re-~

sulted from that exposure.” 368 So. 2d at 526. Justice

Jones in his dissenting opinion on application for rehear-

ing likewise explained that the holding of the majority

“reduces date of injury (and thus accrual of the cause of

action) to a legal conclusion without regard to when the

injury in fact occurs.” 386 So. 2d at 528.

App. 19

Leading up to its conclusion that “[t]he injury in this

case occurred on the date or dates of exposure,” 368 So. 2d

at 520, the majority acknowledged that

“there are cases where the act complained of does

not itself constitute a legal injury at the time, but

plaintiff’s injury only comes as a result of, and in

furtherance and subsequent development of, the

act defendant has done. In such cases, the cause

of action accrues, and the statute of limitation

begins to run, ‘when, and only when, the dam-

ages are sustained.’”

368 So. 2d at 519. The countervailing rule was explained

by the Court as follows:

“*“Tf the act of which the injury is the natu-

ral sequence is of itself a legal injury to plaintiff,

a completed wrong, the cause of action accrues

and the statute begins to run from the time the

act is committed, be the actual damage (then ap-

parent) however slight, and the statute will op-

erate to bar a recovery not only for the present

damages but for damages developing subse-

quently and not actionable at the time of the

wrong done; for in such a case the subsequent in-

crease in the damages resulting gives no new

cause of action.”’”

368 So. 2d at 519 (quoting Home Ins. Co. v. Stuart-

McCorkle, 291 Ala. 601, 608, 285 So. 2d 468, 473 (1973),

quoting in turn Kelley v. Shropshire, 199 Ala. 602, 604-05,

15 So. 291, 292 (1917)).

The majority’s explanation that Garrett’s radiation

exposure fell within the second class of cases because the

“defendant committed no negligent act at that time which

resulted in injury and defendant would not be liable,” 368

App. 20

So. 2d at 521, and “[dJamage must have occurred at the

time of exposure else defendant would not be liable,” 368

So. 2d at 520, seems to me to be no more than circular

reasoning that ignores the first class of cases. Indeed, to

my best attempt to follow the reasoning of the Garrett

majority, it represents judicial public policy-making of the

type the majority in this case now rightfully decries.

In selecting “last exposure” as the accrual date, the

Garrett Court relied upon three of its prior decisions and a

federal case: Howell v. City of Dothan, 234 Ala. 158, 174

So. 624 (1937); American Mut. Liab. Ins. Co. v. Agricola

Furnace Co., 236 Ala. 535, 183 So. 677 (1938); Garren v.

Commercial Union Ins. Co., 340 So. 2d 764 (Ala. 1976);

and Minyard v. Woodward Iron Co., 81 F. Supp. 414 (N.D.

Ala. 1948), aff’d 170 F.2d 508 (5th Cir. 1948).

Howell simply commented in connection with its

review of a lower court’s order abating a nuisance caused

by the overflow of sewage but failing to award any mone-

tary damages, as follows:

“It may not be out of place to observe, as to

damages that are recurring and separable, that

the right to recover, as to such damages not

barred by statute, is not affected by the fact that

other damages of the same character are barred

by statute, provided the damages sustained

within the statutory period are separable from

those that are barred under the statute by the

lapse of time.”

234 Ala. at 162; 174 So. at 628. There was no issue in the

case about when each item of damage had occurred.

In Agricola Furnace, the plaintiff in the lawsuit

underlying his employer’s declaratory-judgment action

App. 21

against its insurer alleged that he had contracted silicosis

and tuberculosis by his exposure to dust and metal parti-

cles in his 10 years of employment. The plaintiff claimed

that “along about the first of May 1936 while so engaged

fin his employment] he was made sick in that way,”

although his sickness “did not appear suddenly, violently

or by accidental means but gradually appeared to grow

progressively worse as a result of said continuous effect of

said dust and particles of metal... .” 236 Ala. at 537, 183

So. at 678. The Court stated its understanding of the

employee’s complaint to be that his exposure was continu-

ous, “but that in May 1936 he was for that cause made

sick.” 236 Ala. at 537, 183 So. at 679. The employee filed

his action in November of that year; thus, there was no

issue of its timeliness vis-a-vis the stated date of injury.

The Court held that a tort “may be of a continuous sort,

and, if so, a recovery may be had for all damages which

occurred within the period of limitations,” and that such a

continuous tort could qualify as “an accident” under an

insurance policy, “however difficult it may be to separate

the amount of the damages done within the period of the

statute of limitations from that occurring in the period

preceding.” 236 Ala. at 538, 183 So. at 679.

In Minyard, the federal district judge awarded the

plaintiff, who had been exposed to silica dust from Novem-

ber 1945 until he quit his job for health reasons in Sep-

tember 1946, monetary damages representing the

aggravation by that exposure of the employee’s preexisting

“silicotic condition.” The judge held that Alabama’s one-

year statute of limitations “began to run from the last date

on which plaintiff inhaled silica dust while employed by

defendant....” 81 F. Supp. at 417. Citing Howell and

Agricola Furnace, among other cases, the judge concluded

that under Alabama caselaw

App. 22

“a recovery may be had for injury resulting from

a continuous tort subject to the limitation that

only damages which occurred within the period

of limitations may be recovered, provided that

the damages sustained within the statutory pe-

riod are separable from those that are barred

under the statute by the lapse of time.”

81 F. Supp. at 417. The United States Court of Appeals for

the Fifth Circuit affirmed the district court’s judgment,

stating simply that it found no merit in the defendant's

contention that the action was barred by Alabama’s one-

year statute of limitations. Woodward Iron Co. v. Minyard,

170 F.2d 508 (5th Cir. 1948).

Garren was a third-party-tortfeasor action by an

employee who had suffered pulmonary injury “as a conse-

quence of continuously breathing dust and lint” emanating

from a machine she had operated on her job for several

years, until she was forced to quit work on April 23, 1974.

On April 22, 1975, she sued the manufacturer of the

machine on a products-liability theory and her employer’s

insurance carrier on a negligent-safety-inspection theory.

“Both defendants were granted partial

summary judgments on the grounds that plain-

tiff’s claims for relief, seeking to recover dam-

ages for injuries suffered more than one year

prior to April 22, 1975, are barred by the one-

year statute of limitations; further, any damages

to which plaintiff might otherwise be entitled

could not include those for any injuries suffered

by plaintiff more than one year prior to April 22,

1975. Plaintiff appeals from these partial sum-

mary judgments. Rule 54(b), [Ala. R. Civ. P.}.”

340 So. 2d at 766.

App. 23

Thus, the issue in Garren was not when the statute of

limitations had been triggered, but simply whether the

plaintiff could recover damages for an injury that had

occurred more than one year before the date she sued.

Given the fact that plaintiff’s right to file a third-party

action arose out of the Workmen’s Compensation Act, the

Court reasoned that “the statute of limitations begins to

run from the date of the injury, which is defined in [Code

ef Alabama, Tit. 26,] § 313(42) [of the Workmen’s Compen-

sation Act} as the date of the last exposure to the hazards

of the disease which gave rise to the injury.” 340 So. 2d at

765. That Code section (recodified at the time of Garrett as

§ 25-5-117) provided that for the purpose of bringing a

workmen’s compensation claim, “[t}he date of the injury

shall mean ... the date of the iast exposure to the hazards

of the disease in the employment of the employer in whose

employment the employee was last exposed to the hazards

of the disease.”

However, as Justice Jones emphasized in his dissent

in Garrett and his extended dissent oh denial of applica-

tion for rehearing in that case, the Garren Court’s reliance

on the workers’ compensation Code section was “misplaced

because the third-party common law action in Garren does

not draw upon the Workmen’s Compensation Act for its

definition of date of injury.” 368 So. 2d at 525. Justice

Jones pointed out that if the Workmen’s Compensation Act

definition of date of injury had in fact applied, Garren

should have been decided differently because under the

Workmen’s Compensation Act Ms. Garren would have

been entitled to recover her full injuries, not just those

incurred during the one-year period preceding the filing of

her complaint. Justice Faulkner likewise explained in his

App. 24

dissent in Garrett that “to engraft this [Workmen’s Com-

pensation Act] statutory scheme on unrelated common law

claims is illogical and unsupported.” 368 So. 2d at 523.

Recognizing the harsh effect of its holding, the Garrett

majority encouraged the legislature to consider adopting a

“discovery” rule, “so that a plaintiff’s claim will not be

barred when he has no way to ascertain that he has been

damaged by a deleterious substance because the result has

not manifested itself until the statute of limitations has

run.” 368 So. -2d at 521 (emphasis supplied). Noting that

the legislature “‘has the inherent power to determine the

date and time within which an action may be brought

unless the time fixed is clearly arbitrary or unreason-

able,’” 368 So. 2d at 520 (quoting an earlier case), the

Court stated:

“It may be that Alabama’s rejection of the

‘Discovery Rule’ is contrary to the weight of opin-

ion generally. However, as this Court is commit-

ted to the proposition that the legislature has the

inherent power to establish statutes of limitation,

we have no other alternative than to leave it to

the legislature to abrogate this rule and adopt a

more equitable one should it see fit... .”

- 368 So. 2d at 521. Justice Shores in her dissent joined the

majority in inviting the legislature to remedy the situa-

tion.

The legislature attempted to do just that later that

year, enacting Act No. 79-468, Ala. Acts 1979, now codified

as §§ 6-5-500 through -504. The legislation represented “a

comprehensive system consisting of the time for com-

mencement of actions, for discoverability of actions based

on insidious disease and the repose of actions” and “a

App. 25

complete and unified approach to the time in which

product liability actions” might be brought. § 6-5-500. It

contained, among other things, a “rule of discovery”

whereby latent-injury cases resulting from exposure to

toxic substances over a period of time could be brought

within one year from the date that the injury “is or in the

exercise of reasonable diligence should have been discov-

ered by the plaintiff,” and the cause of action was “deemed

to accrue” at that time. § 6-5-502(b). Section 6-5-503 stated

that the legislation would “apply only to product liability

actions, wherein each element accrues after the effective

date of this division, and no provision of this division shall

have retroactive application.” The legislature also included

a 10-year absolute rule of repose measured from the date

the product was first put to use, § 6-5-502(c), but that

feature was declared unconstitutional in Lankford v.

Sullivan, Long & Hagerty, 416 So. 2d 996 (Ala. 1982). This

Court’s decision in Lankford had the result of invalidating

the entire act, because § 6-5-504 provided that “each

section, clause, provision, or portion” of the act was to be

deemed “inseparable and nonseverable from all others,”

and in the event any aspect of the legislation was declared

invalid or unconstitutional “the entire [Act] and each

section, clause, provision, or portion thereof shall be

inoperative and have no effect.” Therefore, after Lankford

Act No. 79-468 was a “dead letter.”

In 1980 the legislature enacted Act No. 80-566. Sec-

tion 2 of that act, now codified as § 6-2-30(b), provides that

asbestos-exposure claims “shall be deemed to accrue on

the first date the injured party, through reasonable dili-

gence, should have reason to discover the injury giving

rise to such civil action.” Although Section 3 of Act No. 80-

566, stating that following its effective date the act would

App. 26

“apply retroactively to all pending causes of action,” was

held unconstitutional in Tyson v. Johns-Manville Sales

Corp., 399 So. 2d 263 (Ala. 1981), as violating § 95, Ala.

Const. 1901, the prospective “discovery rule” feature

remains viable. Bills providing for the adoption of the

discovery rule in all hazardous-exposure cases have been

proposed in the legislature for at least the last three years,

but have not been passed; Senate Bill 534 and Senate Bill

535 (2006 Regular Session); House Bill 659 and House Bill

660 (2005 Regular Session); and House Bill 93 and House

Bill 103 (2004 Regular Session).

In his dissent in Garrett, Justice Jones noted the

potentially anomalous result that logically could flow from

the artificiality of the “last exposure” rule of accrual:

“The holding of the majority says, or it may be

fairly interpreted to say, that one so exposed can

bring his action within the year of last exposure

- and be entitled to at least nominal damage -— in-

jury being presumed as a matter of law; or, hav-

ing timely filed his claim, he may be able to delay

trial to await the manifestations of injury and

medical proof.”

368 So. 2d at 528 (footnote omitted).

The flawed artificiality of the Garrett Court’s choice of

the last-exposure rule was evident when this Court had to

apply it to the particular facts in Hillis v. Rentokil, Inc.,

596 So. 2d 888 (Ala. 1992). The plaintiff there suffered

physical injury as a result of his exposure to chromated

copper arsenate during the course of his employment from

September 1985 to December 31, 1987, when his employ-

ment was terminated. His adverse physical symptoms had

manifested well before that “last exposure,” however, and

App. 27

he had actually been diagnosed by a doctor on September

25, 1987, who advised him “to see a dermatologist because

of an allergic reaction to the [chromated copper arsenate].”

596 So. 2d at 889. He did not file suit until November 15,

1989. Relying on the traditional rule that the running of

the statute of limitations is triggered by the first actual

damage, the defendant argued that the limitations period

had begun to run, at the latest, by September 25, 1987,

when the plaintiff’s physical symptoms had progressed to

the point that he had returned to see his doctor and had,

in effect, received a diagnosis. Constrained by the Garrett

last-exposure rule, however, this Court held that because

the action was filed within two years after the date of last

exposure, it was timely. Thus, in Hillis the last-exposure

rule became a sword instead of a shield; an individual

whose cause of action had clearly accrued under the

conventional common-law approach, because he had

experienced a manifest, present injury, was given the

protection of the “last exposure equals first injury” rule of

Garrett.

Although, as Justice See notes, this Court has consis-

tently chosen to continue to follow in subsequent cases the

last-exposure rule of Garrett, it has done so simply by

accepting that holding at face value, under the constraint

of stare decisis, without any reexamination of its underly-

ing rationale.

Garrett’s last-exposure rule is purely a “court made”

rule, because § 6-2-30 then provided, and § 6-2-30(a) now

provides, only that civil actions must be commenced

within the applicable limitations period “after the cause of

action has accrued.” The Garrett Court simply declared, as

a matter of policy rather than scientific fact, that a toxic-

exposure cause of action accrues contemporaneously with

App. 28

the last exposure to the toxic substance, it being judicially

deemed that an injury has occurred at that time as a

matter of law. .

Neither Garrett nor any of its progeny articulate any

scientific basis for that conclusion, and certainly the

defendants in the present case do not argue that benzene

exposure, even up through a last exposure, is known to

cause concurrently some actual damage at the cellular

level or otherwise to inflict an objectively ascertainable

bodily injury.

Although it is undisputed that “the Legislature has

the inherent power to enact a statute of limitations estab-

lishing the period within which a claim must be brought,”

Baugher v. Beaver Constr. Co., 791 So. 2d 932, 934 n.1

(Ala. 2000), the question presented by this appeal is

whether this Court should reexamine its construction in

Garrett of the operative phrase in § 6-2-30, “after the cause

of action has accrued” and interpret it differently than it

did in Garrett for toxic-substance-exposure cases.

The Doctrine of Stare Decisis, and When Change

in the Law is the Role of the Judiciary

“Stare decisis is ‘[t]he doctrine of precedent under

which it is necessary for a court to follow earlier judicial

decisions when the same points arise again in litigation.’

Black’s Law Dictionary, 1443 (8th ed. 2004).” Goldome

Credit Corp. v. Burke, 923 So. 2d 282,.292 (Ala. 2005). As

we explained in Burke:

“Stare decisis, however, ‘is a golden rule, not an

iron rule.’” Ex parte Nice, 407 So. 2d 874, 883

(Ala. 1981) (Jones, J., dissenting). At times ‘this

Court has had to recognize . . . that it is necessary

App. 29

and prudent to admit prior mistakes and to take

the steps necessary to ensure that we foster a

system of justice that is manageabie and that is

fair to all concerned.’ Foremost Ins. Co. v. Par-

ham, 693 So. 2d 409, 421 (Ala. 1997). As Justice

Maddox has stated: ‘[W]hile we accord “due re-

gard to the principle of stare decisis,” it is also

this Court’s duty “to overrule prior decisions

when we are convinced beyond ... doubt that

such decisions were wrong when decided or that

time has [effected] such change as to require a |

change in the law.”’ Ex parte State Farm Fire &

Cas. Co., 764 So. 2d 543, 545-46 (Ala. 2000) (em-

phasis added) (quoting Beasley v. Bozeman, 294

Ala. 288, 291, 315 So. 2d 570, 572 (1975) (Jones,

J., concurring specially)). See also Ex parte Melof,

735 So. 2d 1172, 1186 (Ala. 1999) (‘“‘courts are

not bound by stare decisis to follow a previous in-

terpretation [that is] later found to be errone-

ous’”’ (quoting Goodyear Tire & Rubber Co. v.

J.M. Tull Metals Co., 629 So. 2d 633, 638 (Ala.

1993), quoting in turn 2B Norman J. Singer,

Sutherland Statutory Construction § 49.05 at 16

(5th ed. 1992))).”

923 So. 2d at 292-93.

-Admittedly, we stated in Hexcel Decatur, Inc. v. Vick-

ers, 908 So. 2d 237, 241 (Ala. 2005), that “[w]hen revisiting

this Court’s interpretation of a statute, we will afford

greater deference to the doctrine of stare decisis than we

would if asked to revisit an interpretation of a constitu-

tional provision.” Nonetheless, this Court on a number of

occasions has felt obliged to correct its earlier statutory

construction, including Burke, supra. For example, in

Foremost Insurance Co. v. Parham, 693 So. 2d 409 (Ala.

1997), one of the issues presented was when a fraud cause of

action “accrued” under Ala. Code 1975, § 6-2-30(a), so as to

App. 30

trigger the running of the limitations period of § 6-2-38(/).

Before 1989, the Court had construed the term “accrued”

in that context to mean that “a fraud claim accrued, thus

commencing the running of the statutory limitations

period, when the plaintiff discovered the fraud or when the

plaintiff should have discovered the fraud in the exercise

of reasonable care.” 693 So. 2d at 417. Under the combined

effect of Hickox v. Stover, 551 So. 2d 259 (Ala. 1989), and

Hicks v. Globe Life & Accident Insurance Co., 584 So. 2d

458 (Ala. 1991), that judicial interpretation was changed

so that the theretofore recognized “reasonable reliance”

standard was replaced by a “justifiable reliance” standard.

Under that-new construction, a person’s reliance was to be

judged only by what he or she actually knew of facts that

would have put » reasonable person on notice of fraud. 693

So. 2d at 418. The Court determined in Parham, supra,

that the reasonable-reliance standard had in fact been the

proper construction for the statutory term “accrued” and

overruled Hickox and Hicks on that point. In doing so, the

Court declared:

“Although this Court strongly believes in the doc-

trine of stare decisis and makes every reasonable

attempt to maintain the stability of the law, this

Court has had to recognize on occasion that it is

necessary and prudent to admit prior mistakes

and to take the steps necessary to ensure that we

foster a system of justice that is manageable and

that is fair to all concerned. See, e.g., Jackson v.

City of Florence, 294 Ala. 592, 598, 320 So. 2d 68,

73 (1975), in which Justice Shores, writing for

this Court, stated: ‘As strongly as we believe in

the stability of the law, we also recognize that

there is merit, if not honor, in admitting prior

mistakes and correcting them.’”

693 So. 2d at 421.

App. 31

The Court further held in Parham, however, that

“(blecause this return to the reasonable reliance

standard represents a fundamental change in the

law of fraud, we think it appropriate to make the

new standard applicable in all fraud cases filed

after the date of this decision, i.e., all cases filed

after March 14, 1997.”

693 So. 2d at 421.

In Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d

68 (1975), the plaintiff/appellant sought “a re-evaluation of

this court’s construction” of a statute, acknowledging that

in order for the plaintiff/appellant to prevail, the Court

would have to overrule a line of cases extending for more

than 60 years following the 1907 enactment of the statute.

The interpretation accorded the statute during that period

had occasioned opinions employing what the Jackson

Court labeled a “judicial sleight of hand,” the necessity for

which “could have been avoided entirely by giving to the

1907 legislative enactment its clear meaning.” 294 Ala. at

597, 320 So. 2d at 72. In choosing to correct its erroneous

construction of the statute, despite the fact that the

legislature had reenacted the statute without change as a

part of its adoption of the Codes of 1923 and 1940, the

Court had the following to say:

“No one believes in the validity of the rule of

stare decisis and the necessity for stability in the

law more than we do....

“As strongly as we believe in the stability of

the law, we also recognize that there is merit, if

not honor, in admitting prior mistakes and cor-

recting them. The city here argues that the failure

App. 32

of the legislature to act in this area constitutes

its approval of the construction placed on its en-

actments by this court. It is equally arguable, as

noted by Justice Currie, concurring specially in

Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115

N.W.2d 618, 626 (1962), that‘... they (the legis-

lature) deferred to the supposed wisdom of the

court, or else determined that the court should

correct its own mistakes,’ or as Judge Moremen

of the Court of Appeals of Kentucky responded to

the same argument in Haney v. City of Lexington,

(Ky.), 386 S.W.2d 738, 741 (1964):

*... It seems to us that an equally reason-

able assumption is that the legislature might ex-

pect the courts themselves to correct an unjust

rule which was judicially created... .’”

294 Ala. at 597-98, 320 So. 2d at 73.

More recently, we explained in Ex parte State Farm

Fire & Casualty Co., 764 So. 2d 543, 545-46 n.3 (Ala.

2000):

“... The doctrine of stare decisis tends to

produce certainty in our law, but it is important

to realize that certainty per se is but a means to

an end, and not an end in itself. Certainty is de-

sirable only insofar as it operates to produce the

maximum good and the minimum harm and

thereby to advance justice.... When it appears

that the evil resulting from a continuation of the

accepted rule must be productive of greater mis-

chief to the community than can possibly ensue

from disregarding the previous adjudications on

the subject, courts have frequently and wisely

departed from precedent, 14 Am.Jur, Courts,

§ 126.”

App. 33

In Lloyd v. Service Corp. of Alabama, Inc., 453 So. 2d

735 (Ala. 1984), the Court, having determined that a

change from the law as previously declared by it was

necessary, proceeded to determine whether the change

“should be effected by the judiciary.” 453 So. 2d at 740. The

Court’s analysis of that issue was as follows:

“First, the judiciary originally created this

rule of law. It has not been altered, amended, or

expanded upon by our legislative body. In this

circumstance, where a judicial creation has be-

come outmoded or unjust in application, it is

more often appropriate for the judicial body to

act to modify the law. Further, it is not uncom-

mon for the Legislature to defer to the court’s

wisdom regarding such a rule of law. See Jackson

uv. City of Florence, 294 Ala. 592, 320 So. 2d 68, 73

(1975); Haney v. City of Lexington, 386 S.W.2d

738, 741 (Ky. 1964); and Holytz v. City of Mil-

waukee, 17 Wis.2d 26, 115 N.W.2d 618, 626

(1962). McAndrew v. Mularchuk, 33 N.J. 172,

193, 162 A.2d 820, 832 (1960).

“Second, this is a tort law issue. An unjust

tort law may indirectly affect every citizen of the

state, but it will almost never directly affect

enough people at any given point in time to gen-

erate a great deal of attention. It is not likely,

therefore, to be placed on the Legislature’s

crowded agenda for consideration. For that rea-

son, tort law issues are, when certain other fac-

tors are present, proper subjects for judicial

reform.

“Last, when it has determined that a judi-

cially created law is unjust in its application, this

court cannot long permit itself to be used as an

instrument of inequity by refusing to act to

App. 34

change the law. To do so undermines our credibil-

ity in the public perception. The judicial branch

of government cannot avoid action. It must con-

tinuously apply the law to resolve the conflicts

between citizens of this state. To continue to ap-

ply a judicially created rule this court has recog-

nized as obsolete and unjust is a violation of its

integrity.”

453 So. 2d at 740.

Given the legislative history recited earlier, particu-

larly the legislature’s prompt response to this Court’s

decision in Garrett by enacting Act No. 79-468 (Ala. Code

1975, §§ 6-5-500 through -504) so as to register its dis-

agreement with the holding in Garrett, I do not view the

legislature’s failure to act further than it has done in this

area to constitute its approval of the construction this

Court has placed on the statutory term “accrued” in toxic-

exposure cases. Since Garrett, this Court has again and

again reaffirmed the proposition acknowledged but ig-

nored in Garrett — that there are cases where the defen-

dant’s act does not cause a contemporaneous injury to the

plaintiff, but an injwry later manifests as a result of, and

in furtherance and sulssequent development of, the defen-

dant’s act. See, e.¢,. Fx parte Stonebrook Dev., LLC, 854

So. 2d 584 (Ala, 2003); Hinton ex rel. Hinton v. Monsanto,

813 So. 2d 827 (Ala. 2001); Payton v. Monsanto, 801 So. 2d

829 (Ala. 2001); Ex parte Floyd, 796 So. 2d 303 (Ala. 2001);

System Dynamics Int'l, Inc. v. Boykin, 683 So. 2d 419 (Ala.

1996); Smith v. Medtronic, Inc., 607 So. 2d 156 (Ala. 1992);

and Payne v. Alabama Cemetery Ass’n, Inc., 413 So. 2d

1067 (Ala. 1982). In Hinton, the Court was asked in a

certified question from a federal district court whether

Alabama law recognized a cause of action for medical

monitoring following hazardous-substance exposure when

App. 35

the plaintiffs were not claiming any present injury or

illness. Based on that precise set of facts, the Court con-

cluded that Alabama law “provides no redress for a plain-

tiff who has no present injury or illness” because, as the

plurality opinion explained, “Alabama law has long re-

quired a manifest, present injury before a plaintiff may

recover in tort.” 813 So. 2d at 831-32, 829.

In his special writing concurring in the result, which I

joined, Justice Lyons observed:

“Turning to the question as phrased by the

district court, this Court, dealing with a similar

issue involving the accrual of a cause of action for

radiation exposure, stated the question as fol-

lows: ‘When does the statute of limitations begin

to run for injuries suffered as a result of radia-

tion exposure?’ Garrett v. Raytheon Co., 368 So.

2d 516, 517-18 (Ala. 1979). This Court then an-

swered the question as follows: ‘We conclude that

it begins to run when the plaintiff is exposed to

radiation and an injury occurs.’ Id. (emphasis

added). Recently, in Payton v. Monsanto Co., 801

So. 2d 829, 835 (Ala. 2001), this Court quoted Ex

parte Floyd, 796 So. 2d 303, 308 (Ala. 2001):

“*“Thus, if the act complained of does

not in and of itself constitute a legal in-

jury on the date on which it was per-

formed, the cause of action does not

accrue on that date. It is only when the

first legal injury occurs that the cause

of action accrues and the limitations

period begins to run.”’”

813 So. 2d at 832.

App. 36

In Southern Bakeries, Inc. v. Knipp, 852 So. 2d 712

(Ala. 2002), addressing the issue of what constitutes an

“injury” under § 6-2-30(b), Ala. Code 1975, sufficient for a

cause of action for exposure to asbestos to accrue, the

Court had this to say:

“Alabama has long required a manifest, pre-

sent injury before a plaintiff may recover in tort.’

Hinton v. Monsanto Co., 813 So. 2d 827, 829 (Ala.

2001); see also DeArman v. Liberty Nat'l Ins. Co.,

786 So. 2d 1090 (Ala. 2000); Stringfellow v. State

Farm Life Ins. Co., 743 So. 2d 439 (Ala. 1999);

Williamson v. Indianapolis Life Ins. Co., 741 So.

2d 1057 (Ala. 1999); Ford Motor Co. v. Rice, (726

So. 2d 626 (Ala. 1998)]; Pfizer, Inc. v. Farsian,

682 So. 2d 405 (Ala. 1996). The plaintiff in Hin-

ton did not allege that he sustained a physical in-

jury or an illness as a result of his exposure to

polychlorinated biphenyls (‘PCBs’); instead, he

sought to recover the cost of medical monitoring

he alleged was made necessary by his exposure

to PCBs. 813 So. 2d at 828. In Hinton, a plurality

of this Court held that Alabama law provides no

redress for a plaintiff who has suffered no pre-

sent injury or illness. 813 So. 2d at 831-32.

“

“" Tt is a basic principle of tort law that in

negligence cases, the plaintiff must suffer actual

injury; the threat of future harm, not yet real-

ized, is not enough. W. Page Keeton et al., The

Law of Torts § 30 at 165 (5th ed. 1984)... .”

852 So. 2d at 716-17.

As things now stand, and as left in placed by the

majority in this case, the law in this State would seem to

be this: A person exposed to a toxic substance having the

App. 37

potent’ .1 to cause disease on a delayed basis, but who has

suffered no manifest, present injury within two years

thereafter, may not file an action within that two-year

period. Hinton, supra; Southern Bakeries, supra. If, after

two years, that same person in fact suffers an injury from

the exposure and files an action, the action will be dis-

missed on the basis that it should have been filed earlier.

Thus, no matter when the person attempts to file the

action, it is either too soon or too late. This is a classic

Catch-22,° and one that would seem to violate Art. 1, § 13,

Ala. Const. 1901, which provides, in pertinent part, “that

every person for any injury done him ... shall have a

remedy by due process of law.”

Perhaps, however, I am mistaken in understanding

that the interaction of the rule in Garrett and our more

recent caselaw serves to disallow the maintenance of a

personal-injury tort claim after exposure to a toxic sub-

stance but in advance of a manifest, present injury. After

all, as noted earlier, Justice Jones forecast in his dissent in

Garrett that “one so exposed can bring his action within

the year [now two years] of last exposure without medical

proof of ... damage — in‘ ury being presumed as a matter of

law.” 368 So. 2d at 528. In fact, the defendants embraced

this view of the Garrett rule when they asserted in their

initial brief to this Court that Cline “was entitled to sue

these defendants for his exposure to benzene at Griffin

Wheel from the first day he was exposed to benzene there

to any time up to and including the day two years after

he was last exposed there to benzene supplied by the

* “Catch-22: a frustrating situation in which one is trapped by

contradictory regulations or conditions.” Random House Webster’s

Unabridged Dictionary (2d ed. 2001).

App. 38

defendants. . . .” (Appellee’s brief, p. 43.) If this then is the

correct state of the law, why could not the plaintiff in such

a situation, after asserting a “Garrett injury,” claim as

additional damage mental anguish stemming from his or

her fear of subsequently developing disease? And why

could not the plaintiff in such a case, if asserting claims of

fraudulent suppression, misrepresentation, and/or wan-

tonness (as in Southern Bakeries, supra), additionally

maintain a demand for punitive damages? All without any

proof of any manifest, present injury.

The number of persons eligible to file an action if all

that is required is some period of exposure to a toxic

substance is potentially huge. See Ex parte BASF Corp.,

[Ms. 1051060, Cut. 27, 2006] __ So. 2d ___ (Ala. 2006)

(1,600 plaintiffs); Ex parte Flexible Prods. Co., 915 So. 2d

34 (Ala. 2005) (1,675 plaintiffs); and Ex parte Monsanto

Co., 862 So. 2d 595 (Ala. 2003) (3,500 plaintiffs).

I submit that under either view of the implications of

the Garrett rule, the law is confounded; thus, a continued

blind obedience to that rule, simply in deference to stare

decisis, does not serve the law, but rather greatly disserves

it. As the Court explained in Ex parte First Alabama Bank,

883 So. 2d 1236, 1245 (Ala. 2003):

“Justice Houston, writing specially in South-

ern States Ford, Inc. v. Proctor, $41 So. 2d 1081

(Ala. 1989), embraced a useful standard for

weighing the need for change against the advan-

tages of settled principles of law under the doc-

trine of stare decisis. He posed the question as

follows: whether the ratio decidendi of earlier

precedent would ‘“hypothetically be consented

to today by the conscience and the feeling of jus-

tice of the majority of all those whose obedience

App. 39

is required by [that] rule of law?”’ Southern

States Ford, Inc., 541 So. 2d at 1093 (quoting

Laun, Stare Decisis, 25 Va. L.Rev. 12, 22 (1938)).”

Surely the conscience and feeling of justice of the

majority of those whose obedience would be required to a

rule that says an action filed by a victim of delayed-onset

injury from toxic-substance exposure will always be

disallowed as either premature or too mature would be

shocked. On the other hand, similar shock would surely be

the reaction of the majority of those required to accept a

rule that would permit anyone and everyone exposed to a

toxic substance to maintain a tort action even though that

person had not yet suffered, and statistically would proba-

bly never suffer, any health problem as a result of that

exposure.

Based on the foregoing analyses, I conclude that the

Garrett construction of the § 6-2-30(a) phrase “after the

cause of action has accrued” in toxic-substance-exposure

situations should be corrected, that it should be corrected

now, and that this Court should undertake the correction

rather than abdicating that responsibility to the legisla-

ture.

Construction of “Accrued”

The proper construction of the term “accrued” in § 6-2-

30(a) in the context of toxic-substance-exposure cases

should honor the rule that a cause of action accrues only

when there has occurred a manifest, present injury. I

understand “manifest” in this context to mean an injury

manifested by observable signs or symptoms or the exis-

tence of which is medically identifiable. “Manifest” in this

sense does not mean that the injured person must be

App. 40

personally aware of the injury or must know its cause or

origin. All that is required is that there be in fact a physi-

cal injury manifested, even if the injured person is igno-

rant of it for some period after its development. This

approach is mandated by the rule stated as early as Kelly

vu. Shropshire, 199 Ala. 602, 605, 75 So. 291, 292 (1917),

and as late as Gilmore v. M & B Realty Co., LLC, 895 So.

2d 200, 208 (Ala. 2004), and on innumerable occasions in

between, that “plaintiff’s ignorance of the tort or injury, at

least if there is no fraudulent concealment by defendant,

[does not] postpone the running of the statute [of limita-

tions] until the tort or injury is discovered.” An oft-

declared companion rule is that “this Court will not apply

the discovery rule unless it is specifically prescribed by the

Legislature.” Travis v. Ziter, 681 So. 2d 1348, 1354 (Ala.

1996).

We operate within our proper sphere when we under-

take to determine the construction that should be ascribed

to the legislatively prescribed term “accrued” in § 6-2-

30(a); we would operate outside that sphere were we to

attempt to add to the text of § 6-2-30(a) so as to superim-

pose some sort of discovery feature. Thus, I reject the

notion that our prior and present requirement of a “mani-

fest,” present injury means that the injury must be obvi-

ous to and known by the injured party. That would simply

represent the creation of a type of discovery rule. I reaf-

firm that creation of a discovery rule lies within the

province of the legislature, which is equipped to weigh the

competing public-policy arguments and to fashion varia-

tions of discovery.-principles tailored to the particular

nature of each affected cause of action. The legislature has

shown its special capability in that regard by structuring

variations of discovery features in the following statutes:

App. 41

§ 6-2-3; § 6-2-30(b); § 6-5-482; § 6-5-502(b); § 6-5-574(a);

§ 7-2A-506(2); § 8-19-14; § 8-26A-16(c); and § 8-27-5.

Thus, as used in the phrase “manifest, present injury,”

the word “manifest” designates a condition that has

evidenced itself sufficiently that its existence is objectively

evident and apparent, even if only to the diagnostic skills

of a physician.

“An injury manifests itself ‘when it has become

evidenced in some significant fashion, whether or

not the patient/plaintiff actually becomes aware

of the injury.’ (Marriage & Family Center v. Su-

perior Court (1991) 228 Cal. App. 3d 1647, 1654

[279 Cal. Rptr. 475)).”

Photias v. Doerfler, 45 Cal. App. 4th 1014, 1021, 53 Cal.

Rptr. 2d 202, 206 (1996), abrogated on other grounds by

Arredondo v. Regents of Univ. of Cal., 131 Cal. App. 4th

614, 619, 31 Cal. Rptr. 3d 800 (2005).

Moreover, this case does not properly present the

issue whether a discovery feature should apply, because

Cline claims that his injury occurred on the date of his

diagnosis of acute myelogenous leukemia, and there is no

present argument by the defendants that the actual onset

of the disease had accrued at some earlier time.

The defendants argue that apart from the statute-of-

limitations issue there were failure-of-proof bases on

which the trial court should have entered a summary

judgment in their favor, and this Court could rely on those

bases to affirm that judgment. They acknowledge that the

trial court did not reach those issues, but they invoke the

principle of appellate procedure that this Court may affirm

the judgment of a trial court on any valid ground pre-

sented by the record, regardless of whether the ground

App. 42

was considered, or even if it was rejected, by the trial

court. See Unum Life Ins. Co. of America v. Wright, 897 So.

2d 1059, 1082 (Ala. 2004). Because I would not affirm the

summary judgment here based on a statute-of-limitations

ground, it behooves me to explain why I do not explore the

option of affirming that judgment based on other grounds.

This Court unhesitatingly resorts to the device of

affirming a trial court’s judgment on an alternative basis if

to do otherwise would have us apply an incorrect rule of

law to the parties’ circumstances. See Blue Cross & Blue

Shield of Alabama v. Hodurski, 899 So. 2d 949, 960 (Ala.

2004). Nonetheless, the decision to affirm a trial court’s

ruling on an alternative basis is discretionary with the

appellate court. E.g., Tualatin Valley Builders Supply, Inc.

v. TMT Homes of Oregon, Inc., 179 Or. App. 575, 31 P.3d

1006 (2002); Frady v. Morrow, 169 Or. App. 250, 255-56, 9

P.3d 141, 144 (2000); and Busch v. Graphic Color Corp.,

169 Ill. 2d 325, 662 N.E.2d 397, 214 Ill. Dec. 831 (1996). I

would decline to exercise our discretion to invoke that

principle under the circumstances presented by this case.

It was necessarily clear to the trial court, obliged as it was

to apply the last-exposure rule of Garrett, that the case

had to be dismissed because the statute of limitations had

expired. Thus, it was not just that the trial court failed to

consider other possible bases for entering a summary

judgment, it was effectively precluded from doing so.

The defendants principally argue that Cline’s evidence

failed sufficiently to establish the element of causation

required under the Alabama Extended Manufacturer’s

Liability Doctrine, but the trial court’s reliance on the

Garrett rule effectively eliminated causation as an issue.

That is to say, if a last exposure effects a legally cognizable

injury as a matter of law, then one need not prove actual

App. 43

causation. Additionally, Cline’s counsel asserts, and

submits arguably supportive materials, that he forwent

fully developing certain evidentiary aspects once it became

evident that the trial judge was going to dispose of the

case on the basis of the statute of limitations, and Cline’s

counsel came to understand that counsel for the defen-

dants was in agreement that the planned appeal would

focus solely on that issue.

Presumably because of its determination early on that

Garrett clearly would require a dismissal of the claims

against the defendants, the trial court did not address

certain challenges they made to the admissibility and

adequacy of some of Cline’s evidentiary submissions.

Because the construction of “accrued” in § 6-2-30(a) that I

advocate as the proper one would so alter the analytical

approach the trial court would have taken had it had the

benefit of that rule, 1 would deem it appropriate to afford

the trial court the opportunity to address on the merits the

defendants’ evidentiary-challenge arguments.

Retroactive Versus Prospective Application of

the New Standard Proposed by this Dissent

Although my position was not adopted by the majority

of the Court, I nonetheless believe a discussion of the

reasons favoring a prospective application of a new accrual

rule for toxic-substance-exposure cases is in order.

“The determination of the retroactive or

peaspective application of a decision overruling a

priory decision is a matter of judicial discretion

tnat must be exercised on a case-by-case basis.’

Ex parte Coker, 575 So. 2d 43, 51 (Ala. 1990), cit-

ing City of Birmingham v. Blount County, 533

So. 2d 534 (Ala. 1988); State Dep’t of Revenue v.

App. 44

Morrison Cafeterias Consol., Inc., 487 So. 2d 898

(Ala. 1985). Although circumstances occasionally

dictate that judicial decisions be applied prospec-

tively only, retroactive application of judgments |

is overwhelmingly the normal practice. McCullar

v. Universal Underwriters Life Ins. Co., 687 So.

2d 156 (Ala. 1996) (plurality opinion). ‘Retroac-

tivity “is in keeping with the traditional function

of the courts to decide cases before them based \

upon their best current understanding of the

law.... It also reflects the declaratory theory of

law, ... according to which the courts are under-

stood only to find the law, not to make it.”’ 687

So. 2d 156, quoting James B. Beam Distilling Co.

uv. Georgia, 501 U.S. 529, 535-36, 111 S.Ct. 2439,

2443-44, 115 L.Ed.2d 481 (1991). While reliance

upon prior law is an ‘important variable that

must be appraised in every case presenting ques-

tions of prospectivity,’ we conclude that, as a pol-

icy matter, the application of this newly adopted

rule to these parties ‘rewards the prevailing

party on the appeal, thereby providing “an incen-

tive for litigants to challenge existing rules of law

that are in need of reform.”’ Hosea O. Weaver &

Sons, Inc. v. Towner, 663 So. 2d 892, 899 (Ala.

1995), quoting Prospective Application of Judi-

cial Decisions, 33 Ala. L.Rev. 463, 473 (1982).”

Professional Ins. Corp. v. Sutherland, 700 So. 2d 347, 352

(Ala. 1997).

“Because the rule stated in this opinion would

change this Court’s construction of the limita-

tions provision of § 6-5-547(a) and reject its pre-

vious construction of the statute, a construction

[the plaintiff] may have relied on, we would ap-

ply this new rule prospectively only, i.e., to legal-

malpractice actions filed after the date of this

—_

App. 45

decision. See Professional Ins. Corp. v. Suther-

land, 700 So. 2d 347, 351-52 (Ala. 1997); Fore-

most Ins. Co. v. Parham, 693 So. 2d 409, 421

(Ala. 1997); McCullar v. Universal Underwriters

Life Ins. Co., 687 So. 2d 156, 165-66 (Ala. 1996).”

Ex parte Panell, 756 So. 2d 862, 869 (Ala. 1999) (plurality

opinion of three Justices, but all six remaining Justices

concurred in the result, thus joining in the decision for

prospective relief only).

“The United States Supreme Court has sug-

gested consideration of the following factors in

choosing whether to apply a judicial decision pro-

spectively:

“‘First, the decision to be applied non-

retroactively must establish a new

principle of law, either by overruling

clear past precedent on which litigants

may have relied, see, e.g., Hanover Shoe,

Inc. v. United Shoe Machinery Corp.,

[392 U.S. 481, 496, 88 S.Ct. 2224, 2233,

20 L.Ed.2d 1231 (1968)] . . . or by decid-

ing an issue of first impression whose

resolution was not clearly foreshadowed,

see, e.g., Allen v. State Board of Elec-

tions, [393 U.S. 544, 572, 89 S.Ct. 817,

835, 22 L.Ed.2d 1 (1969)]. Second, it has

been stressed that “we must ... weigh

the merits and demerits in each case by

looking to the prior history of the rule in

question, its purpose and effect, and

whether retrospective operation will fur-

ther or retard its operation.” Linkletter

v. Walker, [381 U.S. 618, 629, 85 S.Ct.

1731, 1737-38, 14 L.Ed.2d 601 (1965)}.

Finally, we have weighed the inequity

imposed by retroactive application, for

App. 46

“lwlhere a decision of this Court could

produce substantial inequitable results

if applied retroactively, there is ample

basis in our cases for avoiding the ‘in-

justice or hardship’ by a holding of non-

retroactivity.”’

92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971)[, but see

Harper v. Virginia Dep't of Taxation, 509 U.S. 86

(1993)).”

McCullar v. Universal Underwriters Life Ine Co., 687 So.

2d 156, 165 (Ala. 1996).

My view of the proper construction to be accorded the

term “accrued” in § 6-2-30(a) in the context of toxic-

substance-exposure cases would establish a new principle

of law by overruling clear past precedent on which liti-

gants may have relied. This consideration weighs in favor

of a prospective application of the principle, as does the

purpose of time limitations for filing actions. On the other

hand, Cline, as the prevailing party in bringing about a

change in the law should be rewarded for his efforts and to

deny him the benefit of the new rule would have a chilling

effect on litigants who desire to challenge existing rules of

law that are in need of reform. Weighing the merits and

demerits of the possible-_options for effectuating the new

rule, I would recommend that it be accorded a completely

prospective operation, save only for its application in

Cline’s case, where it would apply retroactively. Therefore,

except for Cline, only those persons whose last exposure to

a toxic substance, and first manifest injury resulting from

that exposure, gecurred within two years of the opinion

adopting the new rule would be entitled to have the

App. 47

accrual of their cause of action determined according to

the new rule.

By this approach, there would be no “flood gates of

litigation” opened, and only if the legislature chose to

refrain from any action for many years would there even-

tually develop the potential for a significant lag time

between last exposure and manifest, present injury.

Likewise, this approach would answer the concerns of the

specially concurring Justices about the presentation of

“stale” claims. Claims could become stale, in the sense of

there being a significant temporal separation between

cause and effect, only if the legislature is satisfied with the

new rule and forgoes for a decade or more any legislative

adjustment. (It bears noting, moreover, that under the

Garrett rule, a claim is “fresh” only at a time when it is not

actionable, and when it finally becomes actionable, upon

the occurrence of a manifest, present injury, it is necessar-

ily impermissibly “stale” under the statute of limitations.)

I do not seek to preempt the legislature by having this

Court correct the erroneous Garrett rule. I simply take the

position that the Court, having created the rule, should

assume the responsibility for overruling it and replacing it

with a rule that conforms to established principles for

determining when a tort cause of action accrues. Thereaf-

ter, the Court having corrected its own mistake, I would

welcome further legislative action aimed at providing any

different rules for accrual, including those incorporating a

“discovery” feature, that the legislature might determine

to be in order. I therefore would reverse the trial court’s

judgment and remand this case to the trial court so that it

might gauge the accrual of Cline’s Alabama Extended

Manufacturer’s Liability Doctrine cause of action under

the new rule, as well as consider the other grounds the

App. 48

defendants asserted in support of their motion for a

summary judgment.

Lyons, Woodall, and Parker, JJ., concur.

App. 49

IN THE SUPREME COURT OF ALABAMA

[LOGO]

February 7, 2007

1041076

Jack Cline v. Ashland, Inc., et al. (Appeal from Bessemer

Division of Jefferson Circuit Court: CV-01-423).

CERTIFICATE OF JUDGMENT

WHEREAS, the appeal in the above referenced cause

has been duly submitted and considered by the Supreme

Court of Alabama and the judgment indicated below was

entered in this cause on January 5th 2007:

Application Granted; No-Opinion Affirmance of

October 4, 2005, Withdrawn; Affirmed. No opinion.

SEE, J. — Nabers, C.J., and See, Stuart, Smith, and

Bolin, JJ., concur specially. Lyons, Harwood,

Woodall, and Parker, JJ., dissent.

NOW, THEREFORE, pursuant to Rule 41, Ala. R.

App. P., IT IS HEREBY ORDERED that this Court’s

judgment in this cause is certified on this date. IT IS

FURTHER ORDERED that the costs of this cause are

hereby taxed against the appellant as provided by Rule 35,

Ala. R. App. P.

I, Robert G. Esdale, Sr., as Clerk of the Supreme

Court of Alabama, do hereby certify that the forego-

ing is a full, true, and correct copy of ‘the instru-

ment(s) herewith set out as same appear(s) of

record in said Court.

App. 50

Witness my hand this 7th day of February, 2007.

/s/ Robert G. Esdale

Clerk, Supreme Court of Alabama

App. 51

STATE OF ALABAMA — JUDICIAL DEPARTMENT

THE SUPREME COURT

OCTOBER TERM, 2005-2006

1041076

Jack Cline v. Ashland, Inc., et al. (Appeal from Jefferson

Circuit Court, Bessemer Division: CV-01-423).

(Filed Oct. 14, 2005)

HARWOOD, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(1), (a)(2)(A), and (a)(2)(E), Ala. R. App.

Nabers, C.J., and See, Stuart, and Bolin, JJ., concur.

RLP, GAC

App. 52

IN THE SUPREME COURT OF ALABAMA

[LOGO]

November 1, 2005

1041076

Jack Cline v. Ashland, Inc., et al. (Appeal from Bessemer

Division of Jefferson Circuit Court: CV-01-423).

CERTIFICATE OF JUDGMENT

WHEREAS, the appeal in the above referenced cause

has been duly submitted and considered by the Supreme

Court of Alabama and the judgment indicated below was

entered in this cause on October 14th 2005:

Affirmed. No opinion.

HARWOOD, J. — Nabers, C.J., and

See, Stuart, and Bolin, JJ., concur.

NOW, THEREFORE, pursuant to Rule 41, Ala. R.

App. P,, IT IS HEREBY ORDERED that this Court’s

judgment in this cause is certified on this date. IT IS

FURTHER ORDERED that the costs of this cause are

hereby taxed against the appellant as provided by Rule 35,

Ala. R. App. P.

I, Robert G. Esdale, Sr., as Clerk of the Supreme

Court of Alabama, do hereby certify that the fore-

going is a full, true, and correct copy of the instru-

ment(s) herewith set out as same appear(s) of

record in said Court.

App. 53

Witness my hand this lst day of November, 2005.

/s/ Robert G. Esdale

Clerk, Supreme Court of Alabama

RLP, GAC

App. 54

IN THE CIRCUIT COURT FOR

JEFFERSON COUNTY, ALABAMA

BESSEMER DIVISION

JACK CLINE, §

Plaintiff,

3 CIVIL ACTION NO.

vs.

N :

ASHLAND, INC,; BP AMOCO CV-2001-423

CHEMICAL COMPANY, INC;

BP AMOCO CORPORATION; §&

CHEVRON CHEMICAL §

COMPANY; EXXON MOBIL

CORPORATION; et al.,

Defendants. §

ORDER ON MOTION FOR S Y MENT

(Filed Mar. 29, 2005)

This motion is before the Court on the Motion for

Summary Judgment of Defendants Ashland, Inc., Chevron

Phillips Chemical LP, successor in interest to Chevron

Chemical Company, LLC, and Exxon Mobil Corporation.

The Court has considered the pleadings, the arguments of

counsel, and the controlling law, and for the reasons set

forth below, such motion is GRANTED.

This is a personal injury action in which plaintiff

contends that he acquired acute myelogenous leukemia as

a proximate result of his repeated exposures to benzene

over many years. Plaintiff contends that he was exposed to

pure benzene manufactured or supplied by defendants

Ashland, Inc., Chevron Phillips Chemical LP, and Exxon

Mobil Corporation while employed as a plant chemist for

Griffin Wheel Company in Bessemer, between 1979 and

App. 55

1987. Plaintiff concedes that he-was last exposed to ben-

zene supplied by these defendants in 1987 or earlier.

Within two years prior to the date on which he filed

this lawsuit in 2001, plaintiff used a product known as

Thompson’s Water Seal, a product manufactured by

Thompson & Formby Company, a former defendant in this

matter. Plaintiff has offered evidence in opposition to the

Motion for Summary Judgment that the Thompson prod-

uct he used within two years before filing his lawsuit

contained benzene.’ The Court concludes that plaintiff's

recent exposures to benzene supplied by Thompson &

Formby, while sufficient to preserve his claims against

that defendant, do not resurrect his claims against Ash-

land, Chevron, and/or Exxon-Mobil; plaintiff’s claims

against those defendants expired within two years of his

last exposures to their products (1989), or within four

years of the last tender of delivery of benzene by any of

them to which he was exposed (1991). Accordingly, plain-

tiff’s claims were barred by the statutes of limitation at

the time this lawsuit was filed.

DONE this 8th day of danvary March, 2005.

Ys/ Dan C. King, II]

DAN C. KING, Ill

CIRCUIT COURT JUDGE

‘ The evidence submitted by plaintiff in this regard consists of

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.