Families Fight Clock on Cancer-Death Lawsuits

     MADISON, Wis. (CN) – The families of factory workers who died of cancer waited too long to sue that employer for exposure, an attorney told the Wisconsin Supreme Court.
     The arguments came in a hearing Wednesday on the wrongful-death and survival case led by Donald Christ on behalf of Uniroyal tire factory employees who were allegedly exposed to the carcinogen benzene on the job.
     Though the Eau Claire County Circuit Court had dismissed the case against Exxon-Mobil and others as time-barred, citing a three-year statute of limitations for wrongful-death and survival claims in Wisconsin, an appellate panel later reversed.
     It is undisputed that the filing of the 2006 action came more than three years after the employees’ deaths, but the plaintiffs claim that the three-year window did not open at the date of death.
     They say the correct trigger is the discovery date – the point at which a reasonably diligent family member could or should have discovered the injury and its source, according to the discovery rule.
     Though the Christ plaintiffs say their suit was filed within that time frame, Exxon’s attorney told the Wisconsin Supreme Court on Wednesday that this creates a potentially limitless pool of claimants in wrongful-death and survival actions.
     “Reasonable diligence at that point is meaningless,” said Dennis Sullivan, a partner with Chilton Yambert & Porter LLP.
     If some distant uncle brought a claim years after a family member’s death, his delay into discovering the cause of injury would be considered reasonable, Sullivan argued.
     “The potential for mischief certainly exists there,” Sullivan said.
     Justice Ann Walsh Bradley asked whether other jurisdictions experienced this “sky-is-falling” perspective on allowing non-victim claimants to use the discovery rule.
     Sullivan replied that differences in law and procedure between states makes it difficult to pin down how other courts treat similar cases.
     Matthew Biegert of Doar Drill & Skow SC, representing the plaintiffs, fired back, saying that procedural safeguards prevent the need for an outright bar against claims brought under the discovery rule by non-victims.
     If a party does not have a valid claim, they will not be able to prove it and the claim would be dismissed, Biegert argued. Further, the Legislature could pass a concrete rule barring survivors from filing claims more than three years after death – something the court of appeals invited in a prior decision, but which lawmakers have not addressed, Biegert said.
     Sullivan said they have, by way of the statute of limitations. The discovery rule is intended to be used only by victims who can claim it themselves, not by representatives after a person has died, he claimed.
     “The Legislature has made that decision, and that has to be respected,” Sullivan said.
     Biegert noted that the defense’s argument would also foreclose claims in a case where a spouse’s partner was killed in a hit-and-run, or a parent’s child was killed by a stray bullet, and the perpetrators were not identifiable until more than three years later.

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