Diseases with Extended Latency Periods

The June 2018 issue of Legal News featured a discussion of a possible exception to the six-year limit set forth in the Massachusetts statute of repose during which any tort action alleging deficiency or neglect in “the design, planning, construction, or general administration of an improvement to real property” must be filed in court. In that case, a judge from the U.S. District Court denied summary judgment to a defendant contractor who had installed insulation materials containing asbestos in two Massachusetts nuclear power plants in the 1970’s. The plaintiff, who had worked as a pipe inspector at time of construction, was diagnosed with mesothelioma, a form of cancer uniquely caused by exposure to asbestos, some forty years later in 2015. Noting that “it is not at all clear that the six-year statute of repose was designed to bar a category of claims known uniformly to have a latency period of at least twenty years,” the District Court judge certified to the Massachusetts Supreme Judicial Court the question “whether or not the Massachusetts statute of repose can be applied to bar personal injury claims arising from diseases with extended latency periods, such as those associated with asbestos exposure, where defendants had knowing control of the instrumentality at the time of exposure.” In a unanimous decision issued in early March, the SJC answered definitively that there are no exceptions to the statute of repose for private plaintiffs, and any exception must come from the legislature which has the exclusive prerogative to include such relief within the statute.

Absolute Time Limit

In its decision, the SJC referred to the statute of repose as “unequivocal” and an “ironclad rule” whose language is clear and unambiguous, which places an “absolute time limit on the liability of those within its protection,” and abolishes a plaintiff’s cause of action and remedy after six years regardless of whether a cause of action has accrued or injury resulted. The SJC also reiterated that the statute of repose may not be tolled for any reason, and that it makes no difference whether the defendant may have caused deficiency or neglect by negligence, gross negligence, wanton conduct, or even knowing and intentional wrongdoing. The SJC noted that although its decision would have the “regrettable effect” of barring all or nearly all asbestos in construction related suits, the appropriate recourse is in the legislature, not the court.

Two Exceptions

The SJC mentioned two exceptions to statutes of repose that the legislature did carve out to permit actions otherwise barred. The legislature expressly excluded actions arising from foreign objects left in a body from the seven-year statute of repose applicable to medical malpractice actions. The legislature also established special time periods outside the statute of repose, effectively reviving claims, during which the Commonwealth and its subdivisions could bring an action to recover the cost of asbestos removal from public buildings. The court encouraged the legislature to consider doing the same for private plaintiffs should it determine that such an exception is consistent with public policy.

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