The Paradox of Statutes of Limitations in Toxic Substances Litigation

This Article evaluates the use of statutes of limitations in toxic substances litigation. Professor Green begins by analyzing the function of statutes of limitations in traditional tort cases. He concludes that in these traditional settings statutes of limitations may improve the accuracy of fact-finding and provide some measure of repose for defendants. He demonstrates, however, that toxic substances cases differ markedly from traditional tort claims: The causes of the injury are more difficult to trace; the period from exposure to cognizable harm is much longer and varies significantly; the harms are more susceptible to misdiagnosis; and the number of victims is likely to be much greater. Because of these differences, he contends, statutes of limitations have precisely the opposite of their intended effect in toxic substances litigation. Rather than improving the accuracy of fact-finding, they require that claims be resolved before adequate scientific evidence of causation has been developed. These statutes also require plaintiffs to bring suit prematurely-before they have suffered any significant loss and at a time when assessing the future course of their condition is impossible. Finally, he argues, that providing a significant measure of repose through statutes of limitations to defendants is neither possible, because of the lengthy latency periods, nor particularly desired by those defendants.

The Paradox of Statutes of Limitations in Toxic Substances Litigation, California Law Review, Volume 76 | Issue 5 Article 1, October 1988.

Professor Green recommends that statutes of limitations be abolished entirely in toxic tort litigation, thereby leaving the decision when to file a suit to the discretion of the plaintiff. He concludes that abolishing statutes of limitations offers a means for improving the accuracy of outcomes in toxic substances litigation and for relieving the burden of unmeritorious toxic tort claims in the courts.


Toxic substances litigation has moved front and center on the contemporary civil litigation stage. Its scope is massive, its influence on doctrine substantial, its challenges for the administration of the civil justice system unique. Toxic substances litigation and the compensation questions it spawns present political, social, technological, and economic challenges with which we have just begun to grapple and which we will continue to face for decades to come.

The most compelling problems posed by toxic substances litigation are its voracious appetite for the civil justice system’s resources and the difficulty of resolving factual issues of causation given the limited state of scientific understanding. Since the first reported asbestos decision in 1973, tens of thousands of suits have been filed, and in some jurisdictions they continue to be filed at twice the rate at which they are being resolved. The phenomenon has not gone unnoticed; judges, lawyers, and academics have decried court dockets bloated with toxic substances cases. Judge Edward Becker of the Third Circuit Court of Appeals, for instance, characterized asbestos litigation, with some hyperbole, as “the most serious crisis the federal court system has faced in its history.” Much of the data relied on by contemporary advocates of tort reform to demonstrate overlitigiousness is skewed heavily by the recent emergence of toxic substances litigation.

Reform proposals, both at the macro- and micro-level have been proferred. Some believe it is time to move toward no-fault compensation. These compensation fund proposals would displace the current regime and create a distinct system that would both compensate toxic tort victims and satisfy the deterrence-regulatory needs of society. Others have engaged in more pragmatic tinkering with the existing system, attempting to make it more efficient and responsive to the current generation of demands without altering the basic framework. Defenders of the current regime also exist, although many of them concede the need for modification of the substantive or procedural rules currently employed.

This Article falls into the tinkerer category. Practical considerations suggest that massive changes in the contemporary tort apparatus are not likely to occur during this lifetime. Despite that pessimistic prediction, improvements can be made to help the current system adapt to the demands of mass toxic substances litigation. Moreover, the challenges posed by toxic substances litigation have a silver lining: The vast quantity of cases, particularly asbestos cases, casts new light on the flaws of the entire tort system. Identifying those flaws and their solutions may serve a broader class of litigation than the mass toxic substances sphere.

Quite simply, this Article proposes the abolition of all statutes of limitations in toxic substances litigation in which the plaintiff suffers from insidious disease. This proposal would vest the plaintiff with unconstrained discretion in deciding when to bring a lawsuit. Although it would operate within the existing civil justice system boundaries, the proposition is, I recognize, quite revolutionary. For example, Professor Richard Epstein expresses the conventional wisdom in his recent observation:

The length of the interval between cause and effect-or more generally the length of the interval between the constellation of facts that generate tort liability and the liability itself-is critical to the operation of the system. With the passage of time, the evidence available regarding a given legal issue necessarily becomes stale. The reliability of any determination thus decreases, and with it the effectiveness of the system no matter its objectives ….

Similar arguments can be made about the expenses of litigation. If rules were costless, it would always pay to use the ideal rule. But rules have costs, and there is little reason to adopt a rule that costs $100 to resolve a $50 dispute-at least where the moneys are invested in deciding whether the facts of a particular case conform to the rule….

The passage of time is positively correlated with both of the costs just identified: the expense of litigation and the error rate. The longer the period between operative fact and legal judgment, the more likely it is that error will creep in: memories will fade, evidence will disappear or become unreliable. Uncertain outcomes are costly in that they necessarily make risk-averse persons-that is, most of us-worse off. Uncertain outcomes also increase the stakes in litigation, so that more will have to be expended before judgment or settlement is reached.

This Article acknowledges the value of the objectives cited by Professor Epstein, but asserts that a better means of achieving those goals would be to eliminate statutes of limitation. Specifically, the Article makes three claims in support of eliminating statutes of limitations in toxic substances litigation:

  1. accuracy of the outcomes will be improved;
  2. efficiency in the resolution of toxic substances cases will be enhanced;
  3. and the legitimacy of the outcomes, from society’s perspective, will be promoted.

Thus, paradoxically, the policies underlying statutes of limitations would be better served by abolishing them for this class of cases.

It is easy to underestimate the impact of statutes of limitations on the outcome and life cycle of toxic substances cases. The statute of limitations is not a curious anachronism that plays an insignificant role in determining which toxic victims receive compensation and which do not. A study of asbestos insulation workers by the premier research scientist on asbestotic disease, Dr. Irving Selikoff, found that statutes of limitations were the most successful defense. The reporters confirm that plaintiffs frequently run afoul of the statute of limitations, and even when they do not, the parties and the courts expend substantial energy litigating the question.

  1. Part I of this Article begins by reviewing the evolution of statutes of limitations for personal injury lawsuits.
  2. Part II outlines the parameters of contemporary toxic substances litigation, and reveals how very different the modem toxic substances case is from the traditional conception of a tort case.
  3. Part III reviews the contemporary response to the demands of the time dimension of toxic substances litigation-adoption of “discovery rules” that toll the running of the statute of limitations clock.
  4. Part IV demonstrates that the policies underlying statutes of limitations will be enhanced by their abolition under the model of toxic substance litigation sketched out in Part II.

Removing time limitations on the filing of toxic substances cases will prune from the civil dockets a substantial body of cases that are either premature or needless. Moreover, abolishing statutes of limitations will reduce the current perverse incentives for plaintiffs to delay in trying or settling their cases.

The case for abolishing statutes of limitations does not rest on efficiency grounds alone. First, outcomes will be more accurate. Leaving the timing to plaintiffs would improve the overall quality of evidence, most significantly by delaying litigation until scientific understanding of causation can be more fully developed. Second, defendants’ legitimate need for notice will not be impaired. In the mass exposure context, notice to defendants of these potential claims will occur no later than when the first victims bring suit. Because plaintiffs have strong incentives to assert their claims promptly once they become ripe, notice of individual claims should be provided in time to satisfy any of defendants’ legitimate needs as well. By contrast, providing repose for corporate entities for whom managing ongoing litigation is part of the ordinary course of business is neither a compelling nor attainable goal. Part IV concludes with a discussion of several unfortunate consequences of utilizing statutes of limitations in insidious disease litigation.


The common law survived for centuries without a statute providing a limitations period for personal actions. Statutes of limitations were not unknown; limitations periods had long existed for criminal prosecutions and real property claims when the Limitations Act of 1623 first provided a limitations period of four years for trespass, assault, and battery and six years for actions on the case. The structure of the Limitations Act was largely followed in subsequent English limitations statutes and later in the United States. History is murky with regard to the precise evil that the Limitations Act of 1623 and its progeny were intended to redress, but personal injury suits apparently were not a pressing concern. In any case, statutes of limitations played an inconsequential role in the limited number of personal injury actions of the time.

The limitations treatises of the nineteenth century are virtually devoid of reports of personal injury cases; the bulk of the reports concern real property or commercial disputes. Those tort cases that did implicate the statute of limitations involved property damage, commercial loss, conversion of property, and occasionally slander or false imprisonment. Not until the early twentieth century did the personal injury claims of the industrial revolution appear in the statute of limitations treatises, and those cases tended to be of the snapshot  variety, involving shootings, and streetcar and occupational accidents, in which the plaintiff’s injury occurred within a short time period. The primary form of proof in those cases-witness recollection of previous perceptions unaided by documentary evidence-was consistent with the major functions of the statute of limitations: ensuring early notice to defendants and resolving factual disputes before witnesses disappeared and memories faded irreparably.

The ease of determining the time of plaintiff’s traumatic injury in these snapshot cases made the application of limitations statutes straightforward. The facts relevant to a statute of limitations defense were rarely controversial or in dispute, and the occasional tort victim who brought suit too late could be identified on a motion for summary judgment, without expending a great deal of resources. Indeed, the prospect of certain defeat likely deterred most out-of-time claimants from even pursuing a lawsuit.


Insidious disease cases are fundamentally different from the snapshot torts described above. In sketching out a model, based largely on asbestos litigation, one must keep in mind that toxic agents are not homogeneous; any realistic proposal for change must recognize this full range of variations. Nevertheless, providing an insidious disease taxonomy at the opposite end of the spectrum from snapshot torts is helpful in illustrating the operation of statutes of limitations.

The first, and most significant, parameter that defines (and distinguishes) toxic substances torts is lengthy latency periods from exposure to clinical manifestation of disease. The latency periods for asbestotic diseases vary from fifteen to fifty years; the latency periods for other toxic substances victims range from a number of years to a generation or more.

The second characteristic is widespread uncertainty about the causal relationship between the toxic agent and plaintiff’s disease, although that uncertainty is neither universal nor static. As the toxicological and epidemiological evidence accumulates, our understanding of the causal relationships between a toxic agent, other causal factors, and a disease improves, albeit accretively and irregularly.

The contemporary experience with benzene is illustrative. In 1960, a suit on behalf of a leukemia victim against the employer based on occupational exposure to benzene was dismissed by the New York Court of Appeals because “the causes of leukemia or its aggravation are unknown. By the late 1970s, however, benzene was widely recognized as leukemogenic, although lack of understanding of the dose-response curve at low levels of exposure bedeviled regulatory efforts to reduce benzene exposure in the workplace. A decade later, scientists have begun to unravel the low-level exposure risks of benzene. But even as better scientific understanding of the relationship between benzene and leukemia is attained, questions are being raised about the role of benzene in causing multiple myeloma and cancer of the bone marrow.

Benzene, as an example of contemporary toxic tort litigation, points out the third distinguishing feature of such litigation: Multiple diseases develop from exposure to the same agent. Because of differing latency periods, the diseases manifest themselves in the toxic victim serially, often separated by many years. Those diseases and concomitant adverse health effects vary in prognosis and progression.

For purposes of examining the impact of statutes of limitations, multiple diseases that result from a single toxic source can be roughly divided into three categories. The first class includes benign diseases that rarely result in significant dysfunction or other health problems. Examples include the pleural plaques of those exposed to asbestos and the adenosis of DES daughters. The second category includes more serious diseases like asbestosis. Although asbestosis initially causes little disability or dysfunction, it proceeds at a gradual, albeit unpredictable, pace. Neurotoxic effects, although less well understood, exhibit similar characteristics in some cases. The mortality rate for these intermediate diseases tends to be low or moderate. Finally, toxic agents may be carcinogens or teratogens: lung cancer, mesothelioma and gastrointestinal cancer for asbestos; adenocarcinoma for DES; lung cancer for tobacco; leukemia and other cancers from atomic radiation. Many of these diseases have a very high degree of mortality. At the very least, substantial medical treatment and temporary disability will result.

The fourth characteristic that distinguishes toxic cases from snapshot torts is that diagnosis of toxic related disease is almost always an uncertain enterprise, particularly in the ‘early stages of the disease. Lack of understanding of biological and physiological mechanisms, absence of serious dysfunction, and the slowly progressive nature of some diseases contribute to the difficulties of diagnosis. Moreover, unfamiliarity by many health-care practitioners with uncommon toxic diseases results in misdiagnoses.

The combination of lengthy latency periods and diagnostic difficulties is a unique feature of toxic substances cases for purposes of statutes of limitations analysis: No temporally discrete event exists that encompasses the defendant’s breach and the plaintiff’s injury. Instead, insidious disease litigation involves an extended chronology of causation unlike traditional snapshot torts.

Fifth and finally, many toxic agents are sufficiently pervasive that large numbers of individuals are exposed, posing the potential for massive litigation. Asbestos is the largest and most prominent type of current mass toxic litigation, but DES and Agent Orange also involve many potential plaintiffs. Indeed, if smoking victims can overcome the federal preemption barrier, litigation against tobacco manufacturers could make asbestos litigation look trifling in magnitude.


To date, the predominant legal response to the statute of limitations problem in insidious disease litigation has been to fashion some form of “discovery rule,” which delays the accrual of a plaintiff’s claim until she discovers or should have discovered her injury. Since the statute of limitations begins to run upon accrual of plaintiff’s claim, use of a discovery rule expands the time for plaintiff to bring her claim.

The Supreme Court’s acceptance in Urie v. Thompson of a discovery rule for Federal Employers’ Liability Act cases was the genesis for its widespread acceptance in state-based tort claims. The reform has not been wildly controversial; beginning the statute of limitations clock at some other point, such as defendant’s breach, plaintiff’s initial exposure to the toxic agent, or the occurrence of some metaphysical “injury” that is neither detectable nor determinable, offends deep-seated notions of elemental fairness and justice. Unless one is willing (or desires) to deprive plaintiffs of their common law remedy in order to protect defendants, there is little to be said against adoption of a discovery rule. Virtually all commentators and the vast majority of courts are in agreement; the few ossified judges who have demurred on the adoption of a discovery rule have argued institutional function grounds preferring to leave the matter to the legislature-rather than the merits.

The most prominent holdout, New York, came into the fold in 1986. The New York legislature enacted a discovery provision, and Governor Mario Cuomo’s comments as he signed the bill reflect the ineluctability of the discovery rule: “Today we correct a serious injustice in our law that barred many people from seeking restitution for injuries caused by exposure to toxic substances because the statute of limitations had run out before they discovered their illness.”

Despite agreement on the need for a discovery rule, wide variation remains in the discovery rules that have been adopted. At least three different formulations exist, including versions requiring discovery of simply the injury; the injury and its cause; and the injury, its cause, and the availability of a legal remedy. Even within these categories there is discrepancy in interpretation and enforcement.

My purpose is not to argue the merits of the discovery rule. That debate has already taken place, and the overwhelming adoption of some form of a discovery rule and the acceptance of the concept by law reformers is persuasive evidence of its value. Rather, the existing discovery rules form the backdrop for developing the thesis of this Article.

The second potential procedural barrier for toxic substance plaintiffs is a statute of repose. By contrast with limitations statutes, repose periods are measured from the time a product is manufactured or first sold, thus ignoring the latency period in setting limits on the time of suit. Approximately twenty states have enacted some version of a statute of repose.

For several reasons, repose statutes have not had a major impact on toxic substances lawsuits. Courts have refused to give effect to a variety of repose formulations, most notably those that completely barred a claim before it had accrued, as violating state constitutional guarantees of open access to the, courts or equal protection. Other statutes of repose do not absolutely bar actions brought outside the time provided, but make it harder for plaintiffs to recover by limiting the legal theories available or imposing presumptions favorable to defendants. Finally, exceptions for insidious disease victims that permit them sufficient time to bring their claims have been enacted by some legislatures or found by courts in interpreting a particular statute of repose.


A. Why Statutes of Limitations?

The policies that support statutes of limitations are inveterate and familiar to most. One such policy relates to efficiency and accuracy. Providing the defendant prompt notice of a claim permits the defendant to preserve evidence that may otherwise deteriorate or disappear over time. Moreover, since memories and the quality of other evidence inevitably deteriorate over time, requiring litigation to begin promptly enables the fact finder to rely on evidence that is fresher and more specific in resolving the disputed facts. Often asserted, albeit tentatively, is that promptly filed claims are more likely to be meritorious than those filed later. Thus, evidence deterioration aside, statutes of limitations are touted as enhancing accurate outcomes by screening out less meritorious claims . Additionally, the ease with which statutes of limitations defenses can be resolved ensures early and uncomplicated determinations. Finally, statutes of limitations also serve a substantive function; after a specified period has passed without a lawsuit being filed, an individual is entitled to the psychological repose and comfort of knowing that she no longer has the threat of a legal action looming over her. Corporate targets are afforded the opportunity to engage in planning with some assurance about what legal claims they may face in the future and without the threat of long dormant claims arising.

Occasionally one sees the statement that statutes of limitations are intended to encourage diligent or deserving plaintiffs; or, stated in slightly different terms, statutes of limitations protect defendants from nondiligent plaintiffs. This explanation for statutes of limitations can only be justified as an instrument for furthering one or more of the purposes set forth above. Unless the indolence of the plaintiff has somehow threatened the quality of the evidence available at trial or intruded on a potential defendant’s repose, no purpose, other than generally punishing the slothful, is served by barring the claim. It would be curious indeed for a defendant to defend a contract action by conceding that he had breached the contract, but asserting that the plaintiff should not recover because she was a lazy slob.

Thus, the purposes of statutes of limitations are congruent with the desirable characteristics of any procedural system: reducing the public and private resources required to resolve disputes-that is, “efficiency”- and enhancing accurate outcomes.79 In addition to the procedural aspects, statutes of limitations also serve the substantive function of repose described above.

B. Exogenous Efficiency Considerations

Within the policy framework just set forth, statutes of limitations may contribute to efficiency in two distinct ways. First, in providing an incentive to claimants to bring suit promptly, statutes of limitations enhance the quality of evidence available at the time of trial for resolving disputed facts. The next section of this Article demonstrates that, counterintuitively, statutes of limitations as currently formulated inhibit presentation of the best evidence with regard to a wide range of substantive issues in toxic substances cases. Second, by precluding plaintiffs from pursuing out-of-time claims that are less likely meritorious than timely claims, the civil justice system is spared the effort required to resolve those cases. Section C also attempts to deflate any subconscious sense that later filed toxic claims are less meritorious than timely ones. Before discussing the merits of these intrinsic efficiency claims, however, I will address several concerns that are exogenous to the efficiencyenhancing policies behind statutes of limitations. Several unfortunate consequences result from the application of statutes of limitations to the modern generation of toxic substances litigation. These include draining party and judicial resources, encouraging a substantial number of premature or needless cases, and distorting incentives to settle disputes. In sum, these are costs imposed by the existence of statutes of limitations for which, as the following section demonstrates, there are no countervailing benefits.

1. Creating a New Disputed Issue: The Impact of Discovery Rules

With snapshot torts, application of the statute of limitations is a routine, easily performed task. Ascertaining the time of plaintiff’s injury can be accomplished with little effort, a high degree of confidence in the accuracy of the determination, and concomitantly, little legitimate dispute. Early resolution through summary judgment or even dismissal of the complaint ensures prompt and efficient resolution of the statute of limitations issue. Given the clarity of the rule and its application, most out-of-time claimants probably never even bother submitting their claims to a court.

Employing a discovery rule statute of limitations, by contrast, expands the scope of legitimate disagreement. Thus, proportionally more statute of limitations issues exist that require judicial resolution and demand a broader and more lengthy inquiry. The discovery rule yields substantial uncertainty and wide latitude in its resolution for three reasons. First, the diagnosis of insidious disease and the determination of its etiology are fraught with difficulty, uncertainty, and error. Second, although the discovery rule standards are couched in terms of knowledge of the requisite elements, certainty is not required. Thus, a plaintiff need possess only some degree of belief or suspicion, and this determination requires selecting a point on a continuum, rather than making a clear, dichotomous choice. Third, discovery rules contain an alternative objective standard: Even if the plaintiff did not “know” of the element, should she have known? That evaluative inquiry, similar to a finding of negligence, creates another layer of indeterminacy. Thus, the trier of fact must determine not only whether the plaintiff’s subjective knowledge of her injury constitutes discovery, but at what point she should have discovered the injury had she been acting reasonably. Resolution of issues concerning the plaintiff’s knowledge unavoidably depends on largely circumstantial evidence. Extensive discovery proceedings, contested factual hearings, and ultimate submission of this issue to the jury become necessary conditions for resolution. No longer can the statute of limitations issue be decided at an early stage, thus obviating the need for the parties to prepare for and litigate the merits as well. Not only does the statute of limitations fail to reduce the resources poured into litigating the merits, but the judicial and party resources expended to resolve the protracted disputes over its application, like all procedural wrangling, in no way contribute to the resolution of the merits of the case.

2. The Prematurity Phenomenon

As litigation over a toxic substance grows out of infancy and the potential for vast numbers of claims and claimants increases, a specialized plaintiffs’ bar tends to develop that acquires a great deal of sophistication about the toxic agent, the industry in which it is produced, the available legal theories, and relevant scientific and medical literature. These lawyers are willing to make large investments in acquiring information in a given case because of its payoff in later cases. Contacts are made and pursued with specialists in relevant medical and scientific fields as well as with those influential with potential clients, such as union officials in the case of occupational diseases. This specialization has been most prominent in the asbestos litigation arena,  but exists to some extent in many other mass toxic tort litigation areas.

One consequence of a sophisticated bar that represents substantial numbers of victims in discovery rule jurisdictions is that lawyers – run rather than walk – directly to the courthouse with any client who manifests the slightest indication of insidious disease. Regardless of whether the client has suffered any disability or pecuniary loss, the attorney knows that the safest course of action is filing a suit as promptly as possible.

Adams v. Johns-Manville Sales Corp. illustrates well the prematurity effect of statutes of limitations in toxic substances litigation. The plaintiff, a commercial insulator for sixteen years, sued the asbestos producers who had supplied the insulation to which he had been exposed. Plaintiff’s expert testified that, while plaintiff exhibited none of the symptoms associated with asbestosis, he did have “abnormal breathing sounds …some pleural calcification, and a minimal obstructive ventilatory defect”. Plaintiff apparently suffered no disability as a result of his condition and testified that he had lost no wages and incurred no medical expenses to treat his asbestos-induced condition. The trial judge refused to give an instruction permitting the jury to award damages for the increased risk of future cancer. Although the jury found that some of defendants’ products were defective, it awarded the plaintiff no damages. Plaintiff pursued post-trial motions and an appeal, all to no avail.

Unfortunately, Adams is not an isolated phenomenon. In several jurisdictions with a large burden of asbestos cases, between one-third and two-fifths of the pending cases involve plaintiffs with mild or no impairment. Removing the perverse incentives of the statute of limitations is likely to decrease the number of these cases that are actually filed. Logic, self-interest, and risk-aversion suggest that most plaintiffs and their attorneys would prefer to wait and see whether the client will develop serious symptoms, disability, and consequent damages before filing suit and submitting the case for final resolution.

The husband-plaintiff in Doe v. Johns-Manville Corp. is a prominent example of a toxic victim who would have preferred to wait until his minimal asbestotic disease had run its course before filing suit. The husband had been exposed to asbestos over a long period of time and had been diagnosed as having pleural thickening. Like the plaintiff in Adams, however, he had no pain, disability, or difficulty in breathing. He and his wife sued, seeking a declaratory judgment that their claims would not accrue until he became disabled as a result of his asbestotic disease. The court refused to provide declaratory relief, although ironically the plaintiffs had been forced to file a protective action before the court’s decision because of the impending running of the statute of limitations.

The bulk of nonimpairment cases in the courts may also obscure the scope of the mass toxic substance problem and impede attempts to develop more efficient mechanisms for resolving the most pressing cases. Because of the differences in evidence and motivations for plaintiffs in nonimpairment cases, these cases may provide a skewed view of a particular class of toxic substances litigation.

3. Perverting the Paradigm of the Persevering Plaintiff

In the typical lawsuit, the plaintiff, who desires a change in the status quo, pushes for a resolution of the case, while the defendant is the foot-dragger. Moreover, prompt resolution may be essential to the seriously injured plaintiff, for whom income replacement, rehabilitation, and related financial needs are pressing.

Insidious disease litigation stands this model on its head. The lack of physical impairment and concomitant pecuniary loss, in combination with the prospect of substantial future damages, warp the traditional incentives for plaintiffs and encourage them to delay once their case has been filed. Meanwhile, no reciprocal force encourages defendants to push for disposition of these premature cases. Instead, both sides are content with languishing litigation. To be sure, delay may be preferable for both parties given existing statute of limitations constraints. Removing those constraints, however, and thus severing the connection between these cases and the civil justice system, would surely be preferable.

4. The Impact on Settlement

The prematurity phenomenon creates incentives that may also delay settlements and require the expenditure of greater resources before settlements can be reached. Although many factors affect whether a settlement will be reached in any given case, commentators agree that the most significant are the parties’ assessment of the outcome of the case at trial and the divergence of the competing parties’ assessments. Legal or factual indeterminacy provides the opportunity for greater disagreement in the parties’ assessments.

In the context of toxic substances litigation, uncertainty about the progress and future severity of plaintiff’s disease’ and the development of a second disease, combined with the previously discussed advantages to plaintiffs in delaying resolution of their case, should result in later settlement of toxic substances cases as a class. Some evidence suggests that this predicted effect is actually occurring in jurisdictions with a heavy burden of toxic cases. Given the current strain on civil justice resources, eliminating cases that do not need to be in the system, do not need resolution, and ultimately demand more resources to induce settlement, can only be a benefit to the administration of toxic substances litigation.

C. The Quality of Evidence: Implications for Accuracy and Efficiency

All of the inefficiencies engendered by statutes of limitations may be tolerable if they further some justifiable goal. The law is, after all, a trade-off among competing values. Thus, presumably efforts required to resolve discovery rule disputes in toxic cases are “worth it” when balanced against the unfairness that results from a statute of limitations that begins running at the time of exposure. The latter choice, despite its obvious efficiencies, has the unfortunate characteristic of eradicating any remedy the substantive law would otherwise provide for many toxic victims.

One competing value is accuracy. Additional resources might be expended to improve the accuracy of the outcomes. Thus, the current discovery rule might be justified if it enhanced the quality of evidence. As this section will show, however, accuracy is not enhanced. On the contrary, removing all limitations on when a plaintiff must file suit would improve the overall accuracy of toxic substances litigation outcomes. Moreover, in addition to enhancing accuracy, the availability of more specific and reliable evidence should reduce the range of disagreement, thereby promoting efficiency.

Statutes of limitations may affect the accuracy of adjudication in two distinct ways. First, by providing a powerful incentive for early lling, the statute may influence the quality of the evidence available to the parties to resolve the dispute. Any assessment of this influence’s effect on accuracy requires examination of the function that time from accrual plays in the ability of the legal system to reach correct outcomes. Second, by barring those claims for which time has run, the statute of limitations may screen out unmeritorious cases that might have been wrongly decided if submitted for adjudication on the merits. Again, appraisal of this accuracy function requires consideration of the role that time from accrual plays in the proportion of meritorious cases that are brought to court. The traditional conception of these functions is illustrated in Figure 1.

Paradox of Statutes of Limitations – Figure 1.

If the model is correct with regard to the effect that passage of time has upon the accuracy of litigation, then logic requires that at some point where gains in accuracy due to the efforts of litigation diminish sufficiently (without defining precisely the point), the statute of limitations should be invoked. Further, if the meritoriousness function is correct, utilizing the statute of limitations (as opposed to permitting litigation) may be a better choice for minimizing the aggregate number of errors by summarily awarding judgment to defendants, as depicted in Figure 2.

Paradox of Statutes of Limitations – Figure 2.

Inaccuracy is measured on a scale from -1 to 1. A mechanism that resolved every case incorrectly would receive a -1. Similarly, a mechanism that got as many cases right as it got wrong would be graded at 0. The curve I(1) represents the inaccuracy due to litigation and assumes that the error rate due to litigation is relatively low and increases as time passes. Note that even at the far reaches of the time axis, if litigation accuracy is better than random, the curve will remain positive. Indeed, to the extent that lack of evidence causes inaccuracy, litigation error moves in the direction of the meritoriousness curve, because plaintiffs will be unable to meet their burden of proof. The curve I(s) represents inaccuracy due to the sanctioning effect of the statute of limitations.

Because Figure 2 does not depict the costs of litigation, we would rationally pick a point to invoke the statute of limitations well before the point at which the two curves intersect. To assure that resources devoted to litigation provide at least an equal increment of accuracy, that point would be set where the difference between I(s) and I(1) equals the cost of litigation.

Regardless of the norm, however, there is strong reason to believe that in insidious disease litigation both of the curves drawn in Figure 1 are reversed: That is, as time passes after accrual of the claim, litigation accuracy actually improves for a substantial period of time. The relationship between inaccuracy induced by statutes of limitations and litigation in insidious disease litigation is depicted in Figure 3.

Paradox of Statutes of Limitations – Figure 3.

As a result of this improved accuracy, the incentive effects of statutes of limitations in insidious disease litigation actually increase error. In addition, there is little reason to believe (and some contrary indications) that insidious disease plaintiffs who file their cases later have less meritorious claims than those who file earlier. Thus, the sanctioning effect of statutes of limitations-barring late claims-also contributes to inaccuracy.

1. Incentive Effects: The Impact of Time on the Quality of Evidence

In order to evaluate the effect of time upon the availability and quality of evidence in a toxic substances case, we must first assess the contested elements of a claim and the evidence that is likely to be relevant to those elements. In a toxic substances case, the elements relevant to a substantive resolution of the case, broadly speaking, include the basis for defendant’s liability, causation, and plaintiff’s damages.

a. Liability of Defendant

The primary theories of liability available to any toxic substance plaintiff include strict products liability, negligence, and breach of implied warranty. Although strict liability is the plaintiff’s preferred theory, it may not be available in a number of instances. Regardless, for all three theories the significant factual issues for which proof may be affected by the time dimension include the dangerous aspects of the toxic substance and the defendant’s ability to foresee the harm caused by the substance.

For reasons developed below, society’s knowledge of the dangerous aspects of a toxic substance only improves over time. Moreover, the knowledge accumulated from toxicological and epidemiological research does not deteriorate over time; results can easily be retrieved even decades later from the library shelves.

To the extent that a plaintiff must prove that the defendant appreciated the dangers inherent in the toxic agent, the evidence similarly improves over time, although for radically different reasons. Obviously, the optimum time to assess the defendant’s knowledge is during the relevant period-when the defendant either sells the agent or otherwise exposes the plaintiff to it. Even at that optimum time, extracting information from a defendant about her knowledge of the risks is problematic; indeed, it is a significant reason for the very existence of strict liability. To the extent this evidence is still required, however, the latency period of the disease will unavoidably delay inquiry into the state of the defendant’s knowledge.

Given that the inquiry into the defendant’s knowledge will be delayed at least a decade past the optimum point, the relevant question becomes what impact additional delay beyond the latency period has on evidence of defendant’s knowledge. The answer to that question depends substantially on the stakes involved in litigation over the particular agent. In the case of mass toxic substances, the vast number of victims and concomitant stakes involved make investments in acquiring information about the defendant’s knowledge worthwhile. The history of asbestos litigation demonstrates that as time passes, more and better evidence is uncovered about the industry’s and particular defendant’s knowledge concerning the dangers of asbestos products to the variety of circumstances in which people were exposed.

No doubt there lurk toxic agents about which little has been or will be uncovered regarding defendants’ knowledge because of the lack of incentives to develop such information. However, to the extent deterioration in the evidence due to the passage of time affects our ability to gauge the defendant’s knowledge, the error more likely will occur in the same direction that the statute of limitations would direct: The plaintiff, who has the burden of proof on this aspect of the case, will be the party adversely affected if insufficient evidence of the defendant’s knowledge can be obtained.

The passage of time also affects a defendant’s attempts to avoid liability by raising affirmative defenses based on plaintiff’s conduct. Some of those defenses may simply be variations on the individual causation question, such as an asbestos defendant’s claims that plaintiff’s smoking constituted contributory negligence. The only historical factual issue involved in that inquiry is causation, which is addressed below.

The other significant affirmative defense likely to be affected by the passage of time is assumption of risk. The difficulties of ascertaining which risks the plaintiff adequately knew about are similar to the problems addressed in the previous discussion regarding defendant’s knowledge of the risk. Significantly, given the passage of time due to prolonged latency periods, the marginal impact on the quality of the evidence resulting from removing statute of limitations constraints is likely to be quite small.

b. Causation

Because of our lack of understanding of the biological and physiological mechanisms by which toxic agents work, causation is frequently the critical issue in toxic substances cases. Causation may involve as many as three distinct subissues:

  1. whether the toxic agent can cause the disease from which plaintiff suffers;
  2. whether the toxic agent actually caused the plaintiff’s disease;
  3. and whether the defendant is responsible for the agent to which plaintiff was exposed.

Each of these matters may be contested and may require resolution in order to decide a toxic substance case.

The best evidence to demonstrate an agent’s capacity to cause a particular disease is epidemiological. However, proving (or disproving a hypothesis about) a toxic agent’s ability to cause insidious disease is a lengthy, complex, and often tortuous process that frequently takes several decades. Impediments include ethical concerns that prevent investigators from introducing toxic agents in controlled prospective studies. As a result, researchers must rely upon retrospective studies with all their attendant shortcomings: these include difficulties in determining exposure and measuring dosage in a retrospective study, errors in determining causes of deaths on death certificates, and competing disease that, because of premature death, may obscure the existence of disease with a longer latency period. Finally, because of the lengthy latency periods of many insidious diseases, these studies may result in premature conclusions of no causation. Unlike scientists, the courts do not have the option of holding in abeyance any given causation question when in doubt; the courts must decide the issue, or at least determine that a party has failed to meet its burden of production. The passage of time increases the knowledge that exists with respect to the capacity issue. Providing plaintiffs with additional time by removing the constraints of the statute of limitations therefore could only improve the accuracy of fact-finding.

One consequence of the need to resolve the causation capacity issue before adequate epidemiological evidence is available is that some courts have permitted proof of causation through clinical assessments. Although this evidence may be better than none at all, it is less reliable and less specific than epidemiological evidence in addressing and resolving the causation question.

Another consequence of premature litigation of causation has been the admission of less specific and less directed forms of proof. Plaintiffs attempt to use toxicological (animal studies) proof, and to use analogies to biologically or chemically similar substances to satisfy their burden of proof. As a result, disputes about the legitimacy of drawing inferences from these types of evidence are presented to the jury. Defendants rely on preliminary studies that find no causation, and the dispute expands to an assessment of the methodology and generalizability of a study with too few subjects or other potential flaws.

An alternative but less than satisfying option in dealing with inadequate evidence of causation is to employ the burden of proof to resolve cases. Chief Judge Weinstein’s opinion in In re Agent Orange Product Liability Litigation, one of the individual opt-out actions in the Agent Orange class action litigation, fairly cries out for postponing resolution of the case until better evidence of causation is available. In granting summary judgment to defendants based on insufficient evidence of causation, Judge Weinstein wrote:

A long latency period may ultimately reveal some causal relationship between exposure to Agent Orange and adverse health effects in those exposed and in their children. If and when such a connection is shown the issue of compensation should be addressed by the government. This court must decide the case on the evidence presently available.

To be sure, time may not develop the evidence to demonstrate a causal connection between exposure to Agent Orange and the lymphosarcoma that killed the plaintiff’s decedent in In re Agent Orange.  Indeed, there may be no such connection, in which case the absence of evidence over time will tend to support that conclusion. On the other hand, the well-established causal connections between benzene, asbestos, and tobacco smoking and various forms of cancer, all of which required decades or longer to develop, stand out in contrast.

Equally problematic is determining whether exposure to defendant’s toxic agent caused the disease from which the plaintiff suffers. With few exceptions, the vast bulk of toxic diseases are “nonsignature diseases”, those in which a background incidence of the disease is present in the general population due to factors other than the toxic agent.

The background rate results from a myriad of factors, some understood-most not-including naturally occurring environmental factors, as well as individual characteristics such as diet and genetic makeup. Because epidemiological evidence only provides group data that identifies a statistically increased risk for nonsignature diseases, there is rarely a definitive way to establish which factor caused plaintiff’s disease. Professor Richard Delgado coined the phrase the “indeterminate plaintiff” to describe this uncertainty.  The predominant response by the courts has been to rely on the preponderance of the evidence standard to determine recovery: If plaintiff can persuade the fact finder that there is a better than fifty percent chance that defendant’s agent caused plaintiff’s disease, she can recover; otherwise, the defendant prevails.

Proof in this regard requires two forms of information. First, it requires information relevant to determining the causes of the plaintiff’s disease-both the toxic agent involved in the case and other causes, such as environmental factors, for which the defendant would not be liable. Second, the inquiry requires information about the individual plaintiff relevant to causation (established by the first category of information), such as length and intensity of exposure. The combination of these types of information permits a refined assessment of the likelihood that the toxic agent caused plaintiff’s disease. Thus, for an asbestos plaintiff suffering from lung cancer, research findings demonstrating that certain kinds of asbestos fibers are more likely to cause lung cancer than others would be significant in assessing the probability that plaintiff’s lung cancer was the result of exposure to asbestos, rather than some other etiology. Of course, that epidemiological finding is only useful if we also have information specific to the plaintiff that enables us to determine its implications: Specifically, to what kind and what dosage of asbestos fiber was the plaintiff exposed?

In general, it seems fair to conclude that information of the first type will improve as time passes and that information of the second type will deteriorate with the passage of time. The one qualification to the latter conclusion is with regard to the diagnosis of the plaintiff’s disease. At least in the early stages of progressive diseases, and even in the case of cancer, for which more refined diagnostic tools are developed over time, the passage of time improves the accuracy of the diagnosis. To be sure, the victim’s death is probably the outer limit of this diagnostic improvement-at that point the disease has progressed as far as it can. But even death and a subsequent autopsy frequently provide evidence crucial to sorting out the plaintiff’s particular disease and its cause.  Thus time seems to have both a positive and a negative effect on the quality of the evidence regarding the plaintiff’s individual characteristics, including diagnosis. Overall, however, the effect is positive: For toxic cases, causation evidence improves over time.

Connecting the defendant with the toxic agent is the third element necessary to demonstrate causation. Some agents, because of brand identification-for example, Rely Tampons and the Dalkon Shield-generally will not present any serious proof problems with regard to exposure. Generic agents, by contrast, may present significant proof problems, particularly where they are incorporated into finished products that do not have strong brand identification. Thus, in some asbestos cases, identifying the defendant whose asbestos products came into contact with the plaintiff may present proof problems.

Once again, however, abolishing the statute of limitations is not likely to have any significant impact on the quality of evidence. First, any deterioration of identification evidence due to the absence of statutes of limitations incentives must be measured against the delay inherent in latency periods which last for decades. Second, because plaintiffs bear the burden of proving exposure to the defendant’s agent they have an incentive to avoid delay: The deterioration of evidence results in an outcome identical to that which the statute of limitations would have otherwise commanded. Finally, developments in technology may provide improved evidence of exposure despite the passage of time.

Some courts have fashioned special rules when plaintiffs are unable to prove which defendant provided the generic agent that caused their disease. The market share theory of liability constructed by the California Supreme Court in Sindell v. Abbott Laboratories, for example, permits DES daughters who cannot prove which manufacturer provided the DES taken by her mother to recover proportionally from each manufacturer based on its share of the relevant DES market. The absence of statute of limitations incentives in this class of cases may create incentives for strategic delay. For example, plaintiffs might intentionally wait for evidence of actual causation to dissipate, if they currently possess unfavorable evidence of exposure, such as knowledge that the manufacturer that provided the agent is now defunct. Of course, any plaintiff willing to engage in strategic delay could just as easily conceal the unfavorable evidence.  A possible solution to this problem, were it to turn out to be significant, would be to use equitable notions similar to laches to permit the defendant to demonstrate that the plaintiff’s delay has harmed the defendant’s ability to demonstrate a lack of causation. If the defendant were successful, then the plaintiff would be denied the use of any special rules excusing actual proof of exposure.

c. Damages

Predicting the future course of a plaintiff’s medical condition is an age-old challenge for the civil justice system. Statutes of limitations, in conjunction with the single judgment rule, nevertheless require such predictions to be made in a wide range of personal injury cases. The difficulties encountered in toxic substances litigation, while not different in kind, are magnified by the nature of such litigation.

Statutes of limitations result in a disproportionately large number of toxic tort plaintiffs filing suit prematurely, forcing the fact finder to predict the future course of plaintiff’s disease. That prediction, moreover, must be made in a context in which wide individual variations exist in the disease’s progression and in which there is little or no ability to make individualized distinctions in the prognosis. Thus, even if the overall payment required of defendants is reasonably accurate based upon actuarializing the payments over a large number of cases, many plaintiffs will be either over- or under-compensated.

Multiple diseases exacerbate this problem. With varying and differential latency periods, a toxic victim is at risk of developing other diseases, which to a large extent cannot be isolated. The single judgment rule is the primary villain here. Relaxing the rule to permit a second suit if the victim develops a second disease could largely ameliorate this concern; indeed, a number of courts have opted for this approach. However, in other courts, plaintiffs must attempt to recover for the risk of contracting those diseases with little more than generalized probabilities and accommodating experts. When the courts award full damages to plaintiffs who meet the more-likely-than-not burden with probabilistic proof, but deny damages to others whose proof falls short, over- and under-compensation are once again guaranteed.

Professor Leubsdorf has described the speculation and unrealities frequently required by the law of remedies. As he presciently observed, courts may circumvent fact-finding uncertainty in a limited class of cases by awaiting the passage of time. As the previous section has demonstrated, with the exception of evidence regarding plaintiff’s exposure, evidence relevant to the major issues in toxic substances litigation improves significantly for a period well beyond that mandated by a discovery rule statute of limitations. Even with the deterioration of exposure evidence, the overall balance appears firmly on the side of expanding the time to bring suit. Moreover, since plaintiffs have the burden of proof on the issue of exposure, evidence lost because of expanded time should not significantly disadvantage toxic defendants.

2. The Sanctioning Effect: Generating False Negatives

As noted, contrary to conventional wisdom, the passage of time is likely to improve the quality of evidence and the accuracy of outcomes for toxic torts. Aside from its effect of reducing the quality of available evidence, statutes of limitations generate inaccuracy by creating false negatives (barring otherwise valid claims). These false negatives explain the unpopularity of statutes of limitations; they not only offend utilitarian principles but also strike squarely in the unfairness gut. Nevertheless, in circumstances in which the incentive effect truly and substantially contributes to accuracy, the unfortunate product of barring a number of otherwise meritorious claims may be judged acceptable. A claim sometimes tentatively asserted in support of statutes of limitations is that they may improve accuracy by screening dilatorily filed cases. If those later filed cases are less meritorious than promptly filed cases, statutes of limitations might contribute to accuracy by reducing the risk of litigation error. However, it is difficult to justify the assumption that insidious disease plaintiffs who file their cases outside discovery rule time limits have less meritorious claims. The predominant explanation for insidious disease plaintiffs running afoul of statutes of limitations is ignorance or naivete about their disease, its source, or their legal remedies. The current crop of insidious disease cases in which statutes of limitations are involved, along with the existing data on the incidence of victims seeking legal relief, reveal that the overwhelming reason why plaintiffs failed to file timely actions is that they simply did not appreciate the significance of a relatively minor malady, its source, or the availability of legal relief.16 Furthermore, unless the meritoriousness of this class of cases diminishes over time, limitations statutes decrease accuracy by generating false negatives. Indeed, the tentativeness with which this justification is asserted suggests that it not be taken too seriously.

Another reason to believe that the meritoriousness curve rises over time, at least beyond the point .dictated by the discovery rule, is the improvement in evidence relating to plaintiff’s disease and its etiology. As information about claimants’ disease improves-particularly with regard to the class of premature claims described above-previously uncertain cases will be screened out by claimants or their attorneys who recognize from the additional information that the claim is unlikely to be successful.

3. The Danger of Strategic Delay

Conceding the inadequacies of the current statute of limitations regime, a skeptic might nevertheless inquire whether abolishing the statute would create incentives with adverse consequences. Might not claimants shop chronologically, biding their time until a more favorable rule of law develops or until unfavorable facts are no longer available to the defendant? This concern deserves serious consideration.

Before addressing the dangers of generating chronological litigation shopping, it is important to note that there are powerful incentives for plaintiffs to avoid unnecessary delay. It must be conceded that delay for the sake of delay is not an advantage and that there is a point (well beyond the one identified by current limitations rules) at which accuracy may be detrimentally affected by further delay. However, plaintiffs cannot recover anything until they assert their claims. This point may be particularly compelling once the plaintiff’s disease has caused impairment. At this point, the need for compensation will be a significant incentive to assert the claim promptly. Tactically, there are substantial advantages to having the seriously injured plaintiff available for the jury to observe and hear. Even after death, grieving family members or those who have suffered tangibly from the death make far more sympathetic plaintiffs than the victim’s grandchildren. Concerns about insolvency or the bankruptcy of potential defendants, given the recent experience in the asbestos industry and with A.H. Robins, also encourage prompt, perhaps even premature, filing. Thus, substantial incentives already exist for plaintiffs with mature, meritorious claims to file them promptly.

Nonetheless, some inevitable percentage of plaintiffs will delay. For those claimants with marginal or unmeritorious claims, delay may occur simply because of ennui-the prospects for recovery are insufficient to justify the efforts required for suit. More perniciously, some claimants may conclude that deliberate footdragging is advantageous because of the hope of a favorable development in the law applicable to their claim.  A favorable turn might result in plaintiffs filing newly viable cases far beyond those cases’ optimal point.

The more significant concern implicated in this scenario is the application of contemporary law to cases in which defendants’ conduct occurred when different substantive law existed. This is already a familiar situation in the products liability context, because of the lengthy life of industrial machinery and other durable goods, and the latency periods for insidious disease. A solution to this concern, if one is necessary, would be to judge defendants’ conduct or their products’ safety by the law applicable at the time of design or manufacture. Statutes of limitations are but a partial and poor fix for this concern.

It is more difficult to assess the extent to which strategic delays will be employed to allow the dissipation of unfavorable evidence or to obstruct its discovery. For example, a plaintiff aware that her own behavior would subject her to a successful affirmative defense might delay in bringing suit, hoping that time will diminish the defendant’s ability to discover and gather evidence of her behavior. However, with the burden of proof on the plaintiff, evidence about the most vexing aspect of the claim-causation-safely preserved in print, and defendants in control of their records, it is difficult to imagine how plaintiffs could systematically utilize delay to their advantage. Nevertheless, given the financial incentives involved, the possibility always exists that clever attorneys will devise means to exploit the rules to their clients’ advantage.

Two possible solutions to strategic delay exist, although they are not without their own difficulties. First, defendants could be permitted an equitable laches-like defense if they could demonstrate either that plaintiff’s delay prejudiced the defense of that action or that plaintiff’s delay was so unreasonably long as to justify an inference that it was for strategic reasons. The obvious difficulty with this proposal is that although it is intended to be a limited, infrequently asserted defense, it may become routinely invoked, thereby wiping out the efficiency gained by abolishing statutes of limitations. Thus, unless strategic delay turns out to be a substantial problem, laches is probably undesirable.

In any case, a cutoff of 20 years after the death of the injured victim would provide an outside limit that could ameliorate some of the residual concerns. Unlike the discovery rule, it could be easily applied; the date of death is an event about which there is unlikely to be much uncertainty or disagreement. Although such a limit might bar claims before adequate evidence of causation is developed, the concern for compensating heirs who have survived for a generation without it is diminished. Nor should a 20 year cutoff significantly affect tort law’s deterrent effect. Given lengthy latency periods, the large numbers of exposed individuals, and the agency-cost problems of the modem publicly held corporation,  deterrence in the mass toxic substances context is already problematic. Attempting to optimize deterrence by using a precise statute of limitations to fine-tune defendants’ liability is a bit like trying to regulate the flow of water at Niagara Falls with a water pistol. Even using current limitations periods, but accruing claims at death, would be preferable to the current discovery rule regime, although it has the additional disadvantage of barring claims that were not brought because the parties did not know the cause of their decedents’ diseases or its implications.

D. The Emptiness of Repose

Certainty generally is illusion, and repose is not the destiny of man.

Regardless of the overall truth of Justice Holmes’ dictum, lengthy latency periods for insidious disease, both directly and indirectly, thwart the provision of any significant degree of repose for defendants. Defendants are directly affected because any judicial activity must await development of the victim’s disease, which necessarily entails a delay equivalent to the latency period. Defendants are indirectly affected because the latency period makes discovery of the causal connection between agent and disease a lengthy process. This results in a longer period during which victims are exposed to the agent and afflicted by disease, thereby expanding the time-span of lawsuits.

Moreover, the traditional concerns for providing repose to defendants are attenuated in the toxic substances arena. An uninsured individual at risk of being sued because of an identifiable event surely deserves some protection from the psychological trauma induced by the combination of substantial risk, uncertainty, and lack of control over one’s destiny. But insidious disease cases hardly fall within this paradigm. Defendants in toxic substances litigation invariably are corporations, not individuals. Moreover, most are corporations for whom the management of litigation has become an aspect of doing business. Although this function may not be among the most desirable in corporate management, it has become regularized, routine, and a necessary aspect of business operations.

Statutes of limitations have been defended on the grounds that insurers need some certainty about the length of time they will be at risk on their policies. However, with the expanded period of exposure and delay in manifestation due to latency periods, even the discovery rule cannot provide fixed limits on the period of liability. The liability insurance industry’s recent move toward claims-made policies, despite the formidable changeover and continuing coverage problems, should provide some greater certainty in underwriting these risks.

Perhaps the most telling evidence of the unimportance of repose within the current framework is the defendants’ response to premature claims in asbestos litigation. The Asbestos Claims Facility, a consortium of the major asbestos defendants, has a standing offer to provide a “green card” to plaintiffs who have a history of asbestos exposure but no current physical impairment. The green card tolls the statute of limitations indefinitely, permitting plaintiffs to wait until disability or impairment occurs before filing claims. Asbestos defendants have demonstrated that they are willing to sacrifice the incentive effect of statutes of limitations and the repose they afford in order to avoid prematurity. The time value of money and cash flow concerns also motivate defendants to spurn the incentive effect of statutes of limitations: Slowing down the stream of claims reduces the real cost of settlements and judgments. Thus if, as defendants’ actions demonstrate, there is no benefit to prompt submission and resolution of claims, barring potentially meritorious claims because of the passage of time cannot be justified on repose grounds.

E. Creating Chinks in the Integrity of the System: Beyond the Utilitarianism of Statutes of Limitations

This Article has focused primarily on a utilitarian analysis of the impact of statutes of limitations in insidious disease litigation. That analysis has addressed the variables of efficiency and accuracy in dispute resolution. In many respects, fairness and legitimacy concerns, however loosely defined, are consistent with this utility calculus: The false negatives generated by the sanctioning effect of statutes of limitations not only result in inaccuracy, but also they violate basic principles of equalitytreating like cases alike-and equity-resolving cases on the merits rather than as a result of a procedural default. The remainder of this section addresses several legitimate concerns that do not fit neatly within the utilitarian framework.

1. The Lack of Verifiability: Encouraging Plaintiff Mendacity

The discovery rule’s reliance on the plaintiff’s subjective knowledge to begin the running of the statute of limitations provides unfortunate incentives for mendacity by claimants. In the absence of documentation, there will rarely be even circumstantial evidence that bears on the claimant’s awareness of his condition and its source. As Professor Henderson observed, process constraints suggest that the law be structured in a fashion that allows verification of relevant matters. The discovery rule violates this prescription.

Moreover, the inclination to preserve one’s claim by conveniently forgetting about one’s prior knowledge is enhanced by the perceived unfairness and arbitrariness of statutes of limitations, which provide a convenient rationalization for those who need one. This phenomenon can only breed cynicism and lack of respect for the judicial process. While the extent to which this distortion occurs is unclear, the comment of two attorneys who represent a leading asbestos defendant suggests it is far from rare: “Only an ill-prepared or benevolent plaintiff would consciously bar his own cause of action by readily admitting that he knew that he had been injured by a toxic substance at some time prior to the applicable limitations period.”

2. Fostering Conditions for Expert Witness Abuse

Plaintiffs are not the only ones who may fabricate testimony or mislead the court. Expert witnesses who have little or no basis for their opinion and who simply lend their credentials as oath-takers for the party paying them create a similar problem for the legal system. Other experts use large leaps of faith to draw inferences and render firm opinions on matters that most in their field would label as nothing more than hypotheses. In the toxic tort context, the combination of insufficient information about causation,  the time constraints imposed by the statute of limitations, and the allocation of the burden of proof has allowed this abuse to proliferate. As several commentators have noted, this problem transcends toxic substances litigation. Nevertheless, the problem is particularly acute in toxic substances cases because time constraints imposed by statutes of limitations virtually require plaintiffs to build their case on hastily assembled expert witness opinions. Allowing claimants to wait and bring their case when better evidence of causation is available cannot provide a comprehensive solution, but may-make a contribution in the right direction. 3. Forum Shopping and Lack of Consistency Two identically situated asbestos victims with the same domicile will have diametrically different outcomes depending upon which side of the Delaware River they file their suit. Because Pennsylvania’s statute of limitations for all consequences accrues upon discovery of the first disease, while New Jersey’s does not, the outcome of a case may depend on whether suit is filed in Pennsylvania or New Jersey. 93 Similarly, a Virginia resident who had the sagacity to forum shop in Texas, Mississippi, or Ohio will have the opportunity to pursue a claim that her neighbor who remained at home sacrificed. 194 The stream of out-of-time claimants to jurisdictions with more favorable statutes of limitations is discomfiting and results in wildly inconvenient forums or skirmishes over forum non conveniens. Of course, this result is directly attributable to interjurisdictional variations in statutes of limitations, but aside from uniformity, liberalization of time requirements could reduce this flow substantially.


This Article has attempted to demonstrate that molding statutes of limitations to fit the constraints of insidious disease litigation results in a paradox: Rather than enhancing accurate outcomes and efficiency, statutes of limitations produce exactly the opposite effect. Beyond such utilitarian concerns, statutes of limitations in insidious disease litigation have several other troubling effects. The errors they generate are not randomly distributed, but fall exclusively on the class of victim-claimants. By requiring premature determination of causation questions, they provide a breeding ground for the abuse of the expert witness system that has become epidemic in modem litigation. The lack of uniformity in statutes of limitations among the states has encouraged forum shopping of the most blatant kind and resulted in inconsistent outcomes between similarly situated claimants.

I hope the reader will not misunderstand me. I do not contend that later is always better than sooner. Society has a legitimate interest in putting ancient history to rest. At some point, the evidence in a toxic substances case will mature, and further delay will not promote-indeed will detract from-an accurate outcome. Given agency cost concerns in the publicly held corporation and the time value of money, the tort system’s deterrent effect dissipates as time passes. Yet, lengthy latency periods make substantial delay inevitable, and statutes of limitations as currently formulated are a terrible, expensive, and unfair mechanism for ascertaining the appropriate time for a toxic substances lawsuit.

A resolution of the current quagmire is neither theoretically nor practically obvious. Although this Article began with a proposal to abolish all statutes of limitations in insidious disease litigation, potential strategic responses by claimants constitute a significant, albeit difficult to assess, concern. Political constraints also loom large. While there is abundant evidence that asbestos defendants do not desire the benefit of the incentive effects or the repose of statutes of limitations, they are unlikely to agree to give up the benefits of its sanctioning effect, which provides one of the most effective arrows in their defense quiver. Unfortunately, that sanctioning effect is the undesirable byproduct of providing just those incentives spurned by defendants.

A scaled-down solution might abolish all statutes of limitations during the lifetime of the victim and provide a set amount of years thereafter for the family to bring suit. An outside limit of twenty years would not impinge seriously on tort policies, even though advantages exist to providing a longer period because of agents for which evidence of toxicity is undeveloped and because some individuals may remain unaware of the cause of death of a relative or its legal implications.

Ideally, any reform should be universalized-an unlikely event in the diversity and vagaries of state legislatures. However, preempting state statutes of limitations and providing a uniform federal provision is not as radical as it might initially appear. A virtually unnoticed provision of the Superfund Amendments and Reauthorization Act of 1986196 imposes a discovery rule for accrual of all state tort claims for personal injury or property damage resulting from exposure to hazardous substances.1 97 Although this provision does not appear to apply to products liability actions, and in any case does not address the concerns raised in this Article, it does set a precedent for a uniform federal statute of limitation, even for state-based tort claims.

The political unreality cloud still remains, but with a potential silver lining. Many players in the products liability game and the current Administration have renewed their efforts to enact a federal products liability statute. These parties claim that such a statute would provide uniformity and certainty in an area with significant interstate implications. Much negotiation has taken place in the process of trying to fashion a bill that will be politically feasible. If those advocating a federal statute are committed to providing uniformity and certainty-not to mention the additional benefits in efficiently and fairly adjudicating these claims-a provision eliminating or substantially extending the statute of limitations in insidious disease cases may yet see the light of day.

Professor Ken Abraham has convincingly pointed out the difficulties of a universal mass tort compensation scheme. Nevertheless, individualized compensation schemes for specific mass toxic agents about which substantial scientific evidence of causation exists are an attractive, but politically unlikely, solution to the challenge. In the absence of such wholesale reform, I hope this Article will contribute to the recognition that toxic substances torts are different in important ways from the traditional snapshot tort and that those differences may require rethinking fundamental assumptions about the existing tort system and its relationship to the statute of limitations.

Michael D. Green, 1988.

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