Vermont Supreme Court Limits Asbestos Exposure Claims

The Green Mountain State’s 20-year statute of repose is not unconstitutional and, therefore, applies to asbestos exposure civil cases, according to the Vermont State Supreme Court.

Vermont’s statute of repose requires lawsuits within 20 years of the "last occurrence" to which the asbestos-related disease can be attributed. Testimony traced Shirley Hilster's last exposure to 1995, but her daughter did not file suit until 2021.

"Although it may appear unfair to bar the plaintiff's claims under §518(a), especially when the repose period expired before Hilster was diagnosed with mesothelioma, that is the result of the policy expressed in the statute," Justice Harold Eaton wrote.

"Statutes of repose like the one at issue seek to provide defendants with 'certainty' and 'eliminat[e] potential abuses from stale claims' at the cost of 'denying certain plaintiffs a remedy at common law for injury.'"

In many states, the statute of repose was one part of a 1990s tort reform wave. The controversial McDonald’s hot coffee case was the “Remember the Alamo” rallying cry for business groups determined to shut down, to the greatest extent possible, personal injury lawsuits.

According to most news reports at the time, a woman spilled hot coffee on herself, sued Mcdonald's, and won $3 million. These basic facts, while true, are misleading.

Stella Liebeck, the victim in this case, was a 79-year-old woman. She sustained third-degree burns and spent eight days in the hospital undergoing skin graft treatments. Furthermore, at the time, McDonald’s restaurants served coffee at 190 degrees, just short of boiling hot. Additionally, McDonald’s had received and ignored more than 700 hot coffee complaints.

Business groups ignored these facts and pushed tort reform measures through state legislatures, with cries of “lawsuit lottery” and “jackpot justice.”

The statute of repose is a hard lawsuit cutoff that applies to construction defect cases. Usually, the SOR cuts off these cases after a certain number of years, regardless of when victims discovered their illnesses. The theory is that, after a certain number of years, products break down and cause injury. Manufacturers shouldn’t be responsible for such inevitable breakdown-related injuries.

In contrast, the statute of limitations, which is usually two years, is a soft cutoff. The SOL bars most injury lawsuits unless victims discover their injuries later. The SOL clock starts ticking at the time of illness discovery, not at the time of asbestos exposure.

Fortunately, a number of SOR exceptions apply, as outlined below. Additionally, an asbestos exposure lawyer can overturn the SOR, usually based on the length of time, the statute's overly broad application, or the purpose of the law.

Basically, the SOR protects companies from frivolous lawsuits they cannot effectively defend. This principle usually does not apply in the following cases:

• Product manufacturers,
• Extensions if the illness was discovered after the SOR expired,
• Negligent property maintenance,
• Gross negligence,
• Type of construction (brick, concrete, etc.),
• Parties limitations (e.g., the SOR only protects people like engineers, surveyors, and inspectors),
• Willful misconduct,
• Fraudulent concealment, and
• Defective products.

Compensation in asbestos exposure civil claims usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages are usually available in these claims as well.

Mesothelioma victims need and deserve significant compensation. For a confidential consultation with an experienced nationwide mesothelioma lawyer, contact the Throneberry Law Group. Virtual, home, and hospital visits are available.