Larson and the Two Disease Conundrum

Perception is often stronger than reality. In Michigan, it is commonly thought that with respect to asbestos litigation, Michigan is a “two disease state.” That is, many believe that a person can bring multiple lawsuits against the same defendants for the exact same asbestos exposures.  This perception is based upon an incorrect interpretation of Michigan case law and is perpetuated by the nature of how asbestos claims are handled in Michigan.

The general rule in Michigan is that subsequent damages do not give rise to a new cause of action.   Larson v Johns-Manville Sales Corp, 427 Mich 301, 304-305; 399 NW2d 1 (1986),, citing 51 Am Jur 2d, Limitation of Actions, § 136, p 706 (“Thus, if there is a coincidence of a negligent act with the fact of some damage, the cause of action comes into being and the statute of limitations begins to run even though the ultimate damage is unknown or unpredictable”).  In Larson, two of the four consolidated Plaintiffs knew of, or should have known, of their asbestosis diagnoses and subsequently developed cancer. Because the Plaintiffs’ asbestosis occurred more than three years prior to the filing to recover for asbestos-related cancer, the Defendant argued that Plaintiffs’ cancer claims were therefore time barred, as there had been a “coincidence of a negligent act with the fact of some damage.” The Larson Court carved out an exception to the general rule that subsequent damages do not give rise to a new cause of action:

[W]e hold that plaintiffs who develop asbestosis may bring a suit within three years of the time they discover or should have discovered their disease. We also hold that plaintiffs who develop cancer which may be related to asbestos exposure, and who have not brought an earlier action for asbestosis, may bring an action to recover damages for cancer within three years of the date they discover or should have discovered the cancer.

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We believe that discouraging suits for relatively minor consequences of asbestos exposure will lead to a fairer allocation of resources to those victims who develop cancers.  Rather than encouraging every plaintiff who develops asbestosis to recover an amount of money as compensation for the chance of getting cancer, we prefer to allow those who actually do develop cancer to obtain a full recovery.

Id at 319 (emphasis added).

Given Larson’s general rule against allowing claims for later discovered damages and the fact that Larson does not carve out an exception for those who have actually filed an asbestosis lawsuit, it is difficult to understand where the “two-disease state” belief comes from.  Yet, some Courts and several attorneys continue to maintain that Michigan allows a person to file an asbestosis lawsuit and then, many years down the road, file a second lawsuit for cancer.  This arises from a couple of factors.

Only a handful of cases have gone to trial and, therefore, this issue has  not been preserved for appeal.  Motions for Summary Disposition are not likely to provide an avenue for appeal, either, as plaintiffs’ counsel are too savvy to appeal this issue and risk an adverse published opinion. We can say this based on personal experience.  To a defendant, a loss means the case proceeds to trial or settlement and  takes us full-circle to where we started i.e. few cases in Michigan are tried to a verdict.

The number of asbestos lawsuits in Michigan is declining. Nonetheless, an increasing number of cases are re-runs, in which the plaintiff filed for asbestosis several years ago and is now looking for a second bite of the apple.  So long as the system tolerates this duplication of litigation, a plaintiff attorney must file the claim or risk depriving her or his client of a recovery that might be obtained by the next plaintiff attorney.  At some point, our appellate courts need to get a chance to get involved and provide some much-needed guidance.