Product Liability Cases:
GOVERNOR NORTHAM SIGNS LANDMARK PRODUCT LIABILITY BILL INTO LAW
PWHD is pleased to announce that Governor Northam signed HB 2139 into law. This bill amends Virginia Code § 8.01-249 by providing a more reasonable time limit for Virginians suffering from latent diseases caused by toxic substances and defective products to bring a claim. Delegate Elizabeth Guzman was the Chief Patron of this bill, which will go into effect on July 1, 2021.
Under prior law, many victims' claims were time barred before they even knew they were injured. This bill corrects this inequity by providing that the statute of limitation in a case involving a latent disease or injury resulting from exposure to a substance or the use of a product does not start to run until the injured person knew or should have known of the injury and its causal-connection to an injury-causing substance or product.
PWHD attorneys have worked hard for many years to promote this change to Virginia law. During the 2021 session, PWHD products liability partners, Robert R. Hatten, and Erin E. Jewell, testified in the House Courts of Justice and Senate Judiciary Committees about the need for this change, and the inherent injustice that existed for those suffering from latent diseases in Virginia under existing law.
This bill was supported by a 2020 Fourth Circuit Court of Appeals decision, which applied Virginia’s statute of limitations to dismiss a latent disease claim filed by a coal miner against the manufacturer of a defective respirator. The court’s opinion characterized the current Virginia statute of limitations for latent disease claims as tantamount to a “get out of jail free card” for manufacturers of dangerous products because the time limit on these claims expires before the victim is even diagnosed with the disease, much less is aware of the cause of that disease. See Adams v. American Optical Corp., 979 F.3d 248 (2020). As the court observed, Virginia’s law is manifestly unfair because an individual with a latent disease or injury will never get his or her day in court.
This inherent inequity was based upon the 1981 Virginia Supreme Court decision Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900, which held that the statute of limitations for latent disease claims “do[es] not accrue when the diagnosis is first made or when symptoms first occur.” Instead, the court held, the statute of limitations begins to run when any "injury, however slight" first occurs in the body, a time that “expert medical testimony may demonstrate to have occurred weeks, months, or even years before the onset of symptoms.” The Court concluded that “the adoption of a discovery rule which triggers the running of the statute only when the injury is discovered or should have been discovered in the exercise of reasonable diligence must be accomplished by the General Assembly.”
Following Locke, in 1985, Robert R. Hatten spearheaded the passage of statutes by the Virginia General Assembly to change the time limit for filing asbestos claims, so that the time limit did not begin to run until an individual received a diagnosis of an asbestos-related disease from his or her physician. Unfortunately, the change regarding asbestos-related diseases did not address other toxic and carcinogenic substances.
The new amendment to Virginia Code § 8.01-249 signed into law by Governor Northam corrects this inequity and brings Virginia law in line with the majority of other states by stating that the statute of limitation does not start to run the injured person knows or should know of the injury and its causal-connection to an injury-causing substance or product.
The attorneys at PWHD bring over 70 years of litigation experience to a variety of complex matters. PWHD is a local firm with a national reputation. Starting as a pioneer and champion of the rights of asbestos victims, PWHD’s product liability practice has grown over time to handle a wide variety of defective product lawsuits, including breast implants, hernia mesh, Zantac, Roundup®, Biocell, Benzene, and talc.
If you have been injured as a result of a defective product design, manufacturing defect, or a failure to warn of the hazards of a product, please contact us for a free case evaluation. We can help.