Products Liability Law Daily Virginia’s statute of limitations prevents coal miners from suing respirator makers for black lung
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Monday, November 9, 2020

Virginia’s statute of limitations prevents coal miners from suing respirator makers for black lung

By David Yucht, J.D.

The appellate panel opined that it was "difficult to imagine how any miner could bring a personal injury claim [in Virginia] based on black lung."

The U.S. Court of Appeals for the Fourth Circuit affirmed the decision of a trial court which granted summary judgment in favor of two respirator manufacturers, dismissing a personal injury action brought by a coal miner who developed black lung disease. Here, the only issue was whether the miner had developed black lung at some point prior to September 29, 2014-the earliest date on which he could have developed the disease without time-barring his lawsuit. Because he must have developed the disease prior to that date, his action was time-barred (Adams v. American Optical Corp., November 6, 2020, Floyd, H.).

A miner worked in coal mines for over 30 years, where he was exposed to harmful dust. He was given and wore respirators allegedly produced by two manufacturers to protect himself from inhaling excessive amounts of that dust. In 2000, he received a government-sponsored x-ray and was informed that the x-ray showed evidence of mild coal workers’ pneumoconiosis (CWP), also known as "black lung." He was advised in writing to see a doctor and was told that he was eligible to transfer to a less dusty job. He received a second x-ray in 2006 and was given a similar notice. He took no action on either occasion, claiming that he felt healthy.

Between 2010 and 2011, various doctors treated the miner for shortness of breath, but they were unable to diagnose CWP. He was not diagnosed with CWP until September 2014, at which point it was severe. In September 2016, several days shy of the second anniversary of his diagnosis, he brought a personal injury lawsuit against the respirator manufacturers, contending that their respirators failed to protect him from lung disease that he developed by inhaling coal dust. The manufacturers argued that his illness developed outside the statute of limitations. The trial court granted the manufacturers’ motion for summary judgment, finding that the miner filed his lawsuit after Virginia’s two-year statute of limitations had expired. The miner appealed.

Statute of limitations. The appellate panel affirmed the decision of the trial court granting summary judgment to the manufacturers. According to Virginia statute, a "cause" of action for personal injury must be brought "within two years after the cause of action accrues." A "right" of action accrues in Virginia on the date an injury is sustained "and not when the resulting damage is discovered." Virginia courts hold that a cause of action in a latent disease case does not accrue on the date of exposure but, instead, on the date the injured party develops the disease. A cause of action accrues on the actual date of injury, even if no symptoms have yet appeared-not on the date of discovery. Here, the only issue was whether the miner developed CWP at some point prior to September 29, 2014-the earliest date on which he could have developed the disease without time-barring his September 29, 2016 suit. Black lung develops slowly. Generally, it takes 10 to 15 years for CWP to develop to the stage of severity that afflicted the miner in 2014. In rare cases, it can take only five years to advance to this point. It was impossible for the miner not to have developed CWP prior to September 29, 2014. Under Virginia law, the fact that doctors were unable to diagnose his CWP earlier did not affect this decision.

Fairness. Although ruling against the miner’s position, the panel noted that Virginia’s statute of limitations was manifestly unfair as applied to individuals who suffer from latent diseases that cause ambiguous symptoms for the first two years or successive harms that fall outside the limitations window. "Virginia law essentially bars certain plaintiffs from recovery." The miner was "faced with a catch-22 from which Virginia law provide[d] no escape." If the miner had brought his claims within the two-year statute of limitations, he would have been unable to prove them because doctors had not yet clinically correlated his symptoms with CWP. By the time he was able to prove his injuries, his suit was time-barred. The panel noted that it was "difficult to imagine how any miner could bring a personal injury claim based on black lung" in Virginia.

The case is No. 19-1609.

Attorneys: Michael Blair Martin (Martin Walton Law Firm) for Gary Adams. Bethany A. Breetz (Stites & Harbison, PLLC) for American Optical Corp. Milton Trent Spurlock (Dinsmore & Shohl LLP) for Mine Safety Appliances Co.

Companies: American Optical Corp.; Mine Safety Appliances Co.; Coast Holdings, Inc.; 3M Co.

MainStory: TopStory IndustrialCommercialEquipNews SofLReposeNews GCNNews DesignManufacturingNews MarylandNews NorthCarolinaNews SouthCarolinaNews VirginiaNews WestVirginiaNews

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