The Green Mountain State’s twenty-year statute of repose is not unconstitutional and therefore applies to asbestos exposure civil cases, according to the Vermont State Supreme Court.

Vermont’s statute of repose requires lawsuits within twenty years of the “last occurrence” to which the asbestos-related disease can be attributed. Testimony traced Shirley Hilster’s last exposure to 1995, but her daughter didn’t file suit until 2021.

“Although it may appear unfair to bar plaintiff’s claims under §518(a), especially when the repose period expired before Hilster was diagnosed with mesothelioma, that is the result of the policy expressed in the statute,” Justice Harold Eaton wrote.

“Statutes of repose like the one at issue seek to provide defendants with ‘certainty’ and ‘eliminat[e] potential abuses from stale claims’ at the cost of ‘denying certain plaintiffs a remedy at common law for injury.'”

Hilster’s husband was a pipefitter who regularly had asbestos on his clothes. The appeal concerned Vermont Yankee Nuclear Power, where he had worked in 1971 and 1972.

What is a Statute of Repose?

A statute of repose is much like a statute of limitations, but with some significant differences, and we don’t just mean the third word.

First, a bit of background. In many states, the statute of repose was one part of a 1990s tort reform wave. The controversial McDonald’s hot coffee case was the “Remember the Alamo” rallying cry for business groups determined to shut down, to the greatest extent possible, personal injury lawsuits.

According to most news reports at the time, a woman spilled hot coffee on herself, sued McDonalds, and won $3 million. These basic facts, while true, are misleading.

Stella Liebeck, the victim in this case, was a 79-year-old woman. She sustained third-degree burns and spent eight days in the hospital undergoing skin graft treatments. Furthermore, at the time, McDonald’s restaurants served coffee at 190 degrees, just short of boiling hot. Additionally, McDonald’s had received and ignored more than 700 hot coffee complaints. 

Finally, the $2.7 million in punitive damages was one day of coffee sales for the fast-food giant. Given the extreme facts of the case, and the extreme wealth of McDonald’s, $2.7 million might even be a little low.

Business groups ignored these facts and pushed tort reform measures through state legislatures, with cries of “lawsuit lottery” and “jackpot justice.”

The statute of repose is a hard lawsuit cutoff that applies to construction defect cases. Usually, the SOR cuts off these cases after a certain number of years, regardless of when victims discovered their illnesses. The theory is that, after a certain number of years, products break down and cause injury. Manufacturers shouldn’t be responsible for such inevitable breakdown-related injuries.

In contrast, the statute of limitations, which is usually two years, is a soft cutoff. The SOL bars most injury lawsuits, unless victims discover their injuries later. The SOL clock starts ticking at the time of illness discovery, not at the time of asbestos exposure.

So, the SOR usually kills asbestos exposure cases, unless an exception applies. At the most, the SOR is about twenty years. At the earliest, most asbestos poisoning victims discover their illness about forty years after exposure. So, when the SOR expires, these victims have no idea they’re sick.

Bypassing the SOR

Fortunately, a number of exceptions apply, as outlined below. Additionally, an asbestos exposure lawyer can overturn the SOR, usually based on the length of time, the statute’s overly-broad application, or the purpose of the law.

A few states have an eight- or nine-year SOR. Such a short time period unfairly favors manufacturers. Almost all long-term illnesses take much longer than eight or ten years to develop.

A few other states have absolute SORs. The hard cutoff applies regardless of the facts. Most state constitutions expressly prohibit such overly-broad laws that give no one, not even a judge in charge of a case, any discretion to deviate from a general rule.

Moreover, asbestos poisoning claims are allegedly not the purpose of the SOR. These products were defective and dangerous when they were made. In fact, many asbestos exposure victims assembled components that contained asbestos, yet they wore little or no PPE (personal protective equipment), usually at the direction of their employers. So, the aforementioned inevitable breakdown analysis doesn’t apply in these cases.

Frequently, an asbestos exposure lawyer doesn’t have to worry about the SOR. For constitutional reasons, most states have built-in SOR exceptions, such as:

  • Product manufacturers,
  • Extensions if the illness was discovered after the SOR expired,
  • Negligent property maintenance,
  • Gross negligence,
  • Type of construction (brick, concrete, etc.),
  • Parties limitations (e.g. the SOR only protects people like engineers, surveyors, and inspectors),
  • Willful misconduct,
  • Fraudulent concealment, and
  • Defective products.

Many states extend the SOR to defective products, and many of the same exceptions apply. Curiously, Vermont doesn’t have a defective product SOR. So, if the victim in the above story handled an asbestos-laced product, and didn’t work in an asbestos-laced facility, an asbestos exposure lawyer could more easily obtain compensation.

This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages are usually available in these claims as well.

A few final words about Plan B legal options, if the SOR blocks a civil claim. These options include workers’ compensation, Social Security disability, and bankruptcy VCF.

Most asbestos poisoning claims involve occupational exposure. Usually, the SOR doesn’t apply to workers’ compensation claims. However, an asbestos exposure lawyer must often deal with SOL-like workers’ compensation claims deadline that, due to the nature of mesothelioma and other asbestos exposure illnesses, the victim missed. If asbestos exposure occurred at work, available benefits include lost wage replacement and medical bill payment. 

A Social Security Disability claim is usually an option for para-occupational, or take-home, asbestos exposure victims. Microscopic asbestos fibers easily cling to hair, clothes, and most other surfaces. Therefore, asbestos workers often unintentionally carried these fibers home, where they infected friends and family members. Available SSD benefits usually include monthly cash and Medicaid membership.

If the responsible company declared bankruptcy, as is often the case, a bankruptcy victim compensation fund claim may be available. In fact, depending on the facts, a bankruptcy VCF claim may be the fastest and easiest way to obtain compensation for asbestos exposure injuries.