No. 12-1290 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PETER WALDBURGER, et al., Plaintiffs-Appellants, v. CTS CORPORATION, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF APPELLEE

STUART F. DELERY

Acting Assistant Attorney General

ANNE TOMPKINS

United States Attorney

THOMAS M. BONDY (202) 514-4825 DANIEL TENNY (202) 514-1838

Attorneys, Appellate Staff Civil Division, Room 7215 Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001

TABLE OF CONTENTS Page INTRODUCTION AND INTEREST OF THE UNITED STATES. ......................... 1 QUESTION PRESENTED.................................................................................................... 3 STATEMENT. ........................................................................................................................... 3 A.

B.

Statutory background..................................................................................................... 3 1.

CERCLA.............................................................................................................. 3

2.

The North Carolina Statute. ............................................................................. 5

Facts and prior proceedings. ........................................................................................ 6

SUMMARY OF ARGUMENT. ............................................................................................. 7 ARGUMENT. .......................................................................................................................... 10 I.

II.

The CERCLA provision’s text unambiguously precludes its application to North Carolina’s statute of repose. ................................................. 10 A.

North Carolina’s statute of repose is not a “statute of limitations,” and thus not an “applicable limitations period” within the meaning of CERCLA. ................................................... 10

B.

Congress explicitly limited the scope of CERCLA’s preemption provision to statutes of limitations, and did not extend the provision to statutes of repose..................................... 13

C.

There was no ambiguity in 1986 about the meaning of the term “statute of limitations”. ................................................................... 16

Adopting a discovery rule for statutes of limitations without displacing statutes of repose reflects Congress’s legislative balancing of competing objectives. ........................................................................... 22

CONCLUSION. ...................................................................................................................... 30

CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 29(D) CERTIFICATE OF SERVICE ADDENDUM

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TABLE OF AUTHORITIES Cases:

Page

Anderson v. United States, 669 F.3d 161 (4th Cir. 2011).................................................................................. 2, 28, 29 Bolick v. Am. Barmag Corp., 293 S.E.2d 415 (N.C. 1982). ....................................................................................... 18, 20 Boudreau v. Baughman, 368 S.E.2d 849 (N.C. 1988). ............................................................................................. 29 Burlington Northern & Santa Fe Ry. Co. v. Poole Chemical Co., 419 F.3d 355 (5th Cir. 2005)................................................................................. 6, 11, 14 Burlington Northern & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (2009). ........................................................................................................... 25 In re Camp Lejeune, No. 11-md-2218, Doc. 87 (N.D. Ga. Aug. 9, 2012 )...................................................... 2 First United Methodist Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862 (4th Cir. 1989)............................................................................ 7, 11, 12, 18 Goad v. Celotex Corp., 831 F.2d 508 (4th Cir. 1987)................................................................................ 13, 20, 27 Gorman v. Judge of Newaygo Circuit Court, 27 Mich. 138 (1873). .......................................................................................................... 21 McDonald v. Sun Oil Co., 548 F.3d 774 (9th Cir. 2008)..................................................................... 7, 12, 16, 18, 19 Meese v. Keene, 481 U.S. 465 (1987). ........................................................................................................... 14 Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). ........................................................................................................... 27 -iii-

Rodriguez v. United States, 480 U.S. 522 (1987). ........................................................................................................... 23 Tipton & Young Const. Co., Inc. v. Blue Ridge Structure Co., 446 S.E.2d 603 (N.C. Ct. App. 1994)................................................................................ 7 United States v. Kubrick, 444 U.S. 111 (1979). ........................................................................................................... 20 United States v. Ron Pair Enterprises, Inc., 489 U.S. 235 (1989). ..................................................................................................... 14, 15 Statutes: 21 U.S.C. § 335b(b)(3)(B)........................................................................................................ 22 28 U.S.C. § 517............................................................................................................................ 2 28 U.S.C. § 1346(b). ................................................................................................................... 1 28 U.S.C. § 2674. ........................................................................................................................ 1 31 U.S.C. § 3731(b)(2). ............................................................................................................ 21 42 U.S.C. § 9604. ........................................................................................................................ 3 42 U.S.C. § 9607. ........................................................................................................................ 3 42 U.S.C. § 9651(e)..................................................................................................................... 3 42 U.S.C. § 9658. ................................................................................................................ passim 42 U.S.C. § 9659(h) . ................................................................................................................ 24 N.C. Gen. Stat. § 1-52(16).................................................................................. 6, 8, 11, 12, 19 Pub. L. 99-499, 100 Stat. 1613 (1986). .................................................................................. 27

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Rules: Federal Rule of Appellate Procedure 29. ............................................................................... 2 Legislative Materials: 131 Cong. Rec. 35,647 (1985).................................................................................... 23, 25, 27 132 Cong. Rec. 28,412 (1986)................................................................................................. 24 Amending and Extending the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund): Hearings Before the S. Comm. on Environment and Public Works, S. Hrg. 98-1003 (1984). ........................................... 24, 25 S. Rep. No. 96-848 (1980)....................................................................................................... 23 Other Authorities: A Report to Congress in Compliance with §301(e) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.............................................................................. 3, 4, 16, 17, 26 Black’s Law Dictionary (9th ed. 2009).................................................................................. 11 Francis E. McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am. U.L. Rev. 579 (1980)........................... 18, 19, 20, 21 J. Angell, A Treatise on the Limitation of Actions at Law, and Suits in Equity (1829).................................................................................................................... 21 Lisa K. Mehs, Comment, Asbestos Litigation and Statutes of Repose: The Application of the Discovery Rule in the Eighth Circuit Allows Plaintiffs to Breathe Easier, 24 Creighton L. Rev. 965 (1990). .............................................. 19, 20, 21 Prosser & Keeton on Torts (5th ed. 1984). ......................................................................... 28

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IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1290 PETER WALDBURGER, et al., Plaintiffs-Appellants, v. CTS CORPORATION, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF APPELLEE INTRODUCTION AND INTEREST OF THE UNITED STATES This appeal involving private parties presents the question whether a provision of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. § 9658, affects the operation of a North Carolina state statute of repose in a case involving damages allegedly caused by hazardous substances. The United States has a substantial interest in the proper resolution of this question. Although the United States may not be sued directly under state law, the substantive restrictions on liability under state law, such as statutes of repose, apply to claims against the United States under the Federal Tort Claims Act (FTCA). See 28 U.S.C. §§ 1346(b), 2674 (limiting the United States’ liability to circumstances in which

a private person would be liable under state law); Anderson v. United States, 669 F.3d 161, 165 (4th Cir. 2011) (“Because statutes of repose are substantive limitations on liability, an FTCA claim does not lie against the United States where a statute of repose would bar the action if brought against a private person in state court.”). To the extent that CERCLA is held to preempt state statutes of repose, those statutes would therefore also be unavailable to the United States in negligence actions under the FTCA that involve alleged exposure to hazardous substances. The United States also has a particular interest in the interaction of CERCLA with the North Carolina statute of repose because of ongoing litigation against the United States under the FTCA involving allegations of contaminated drinking water at the Camp Lejeune Marine Corps Base in North Carolina. The multi-district litigation panel has currently consolidated pretrial proceedings in those matters in the Northern District of Georgia, and the district court in those proceedings has certified the question that is at issue in this case for interlocutory appeal. See In re Camp Lejeune, No. 11-md-2218, Doc. 87 (N.D. Ga. Aug. 9, 2012). For all of these reasons, the United States respectfully submits this amicus brief pursuant to 28 U.S.C. § 517 and Federal Rule of Appellate Procedure 29.

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QUESTION PRESENTED Whether CERCLA preempts North Carolina’s state statute of repose in the context of damages allegedly caused by exposure to hazardous substances. STATEMENT A.

Statutory background.1 1.

CERCLA

The Comprehensive Environmental Response Compensation and Liability Act (CERCLA) allocates responsibility for cleaning up hazardous substances. In specified circumstances, CERCLA requires responsible parties to reimburse entities who perform the cleanup operations. See 42 U.S.C. §§ 9604, 9607. When CERCLA was originally enacted in 1980, Congress declined to create federal remedies for personal injuries or property damage, instead mandating a study to assess “the adequacy of existing common law and statutory remedies” relating to injuries from exposure to hazardous substances. 42 U.S.C. § 9651(e). Commonly called the “301(e) Report” based on the CERCLA provision that commissioned it, the study made a number of recommendations for changes in federal and state law that would affect those injured by the release of hazardous substances.

1

Pertinent statutes are reproduced in the addendum to this brief. -3-

As relevant here, the Report observed among other things that certain States “have not clearly adopted the discovery rule” for the commencement of a statute of limitations, with the result that plaintiffs whose contamination-related injuries do not become apparent for many years would be foreclosed by the “traditional rule that the cause of action accrues from the time of exposure.” 301(e) Report, at 240.2 Consequently, the Report recommended “that all states that have not already done so, clearly adopt the rule that an action accrues [only] when the plaintiff discovers or should have discovered the injury or disease and its cause.” Id. at 241. The Report also recognized that “statutes of repose . . . in a number of states have the same effect as some statutes of limitation in barring plaintiff’s claim before he knows that he has one,” and, therefore, recommended that States repeal such statutes of repose. Id. In the course of amending CERCLA in 1986, Congress acted on the Report’s recommendation with respect to implementing a discovery rule for statutes of limitations, enacting the following provision: In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the

2

Portions of the 301(e) Report are reproduced in the addendum. -4-

federally required commencement date in lieu of the date specified in such State statute. 42 U.S.C. § 9658(a)(1). The statute defines the “applicable limitations period” to mean “the period specified in a statute of limitations during which a civil action referred to in [the language quoted above] may be brought.” Id. § 9658(b)(2). The “federally required commencement date” is, with certain limited exceptions, “the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in [the language quoted above] were caused or contributed to by the hazardous substance or pollutant or contaminant concerned.” Id. § 9658(b)(4). Although Congress thus legislated directly with respect to statutes of limitations, Congress did not enact any provision of federal law addressed to statutes of repose, nor did it address many of the other recommendations in the 301(e) Report. 2.

The North Carolina Statute

The North Carolina provision at issue in this case provides for a general threeyear statute of limitations, and further states that: Unless otherwise provided by statute, for personal injury or physical damage to claimant’s property, the cause of action . . . shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs. Provided that no cause of action -5-

shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action. N.C. Gen. Stat. § 1-52(16). The statute thus sets out two timing provisions governing claims for personal injury or property damage. One of them is a statute of limitations, which begins to run on the date the injury becomes apparent, and runs for three years. The other provision, of particular relevance here, is a statute of repose, which bars any action brought more than 10 years from the last act or omission of the defendant, thus creating an outer limit on a defendant’s liability. B.

Facts and prior proceedings. This is a nuisance action between private parties under North Carolina state

law. Plaintiffs allege that pollutants at defendant’s manufacturing facility in Asheville, North Carolina caused damage to their adjoining property. Plaintiffs do not contest that, by its terms, the North Carolina ten-year statute of repose would bar this suit, and instead urge that the statute of repose is preempted by CERCLA in the circumstances of this case. Accepting the recommendation of a magistrate judge, the district court granted the defendant’s motion to dismiss the action on statute of repose grounds, and entered judgment on that basis. Echoing the reasoning of the Fifth Circuit in Burlington Northern & Santa Fe Railway Co. v. Poole Chemical Co., 419 F.3d 355 (5th Cir. -6-

2005), the magistrate judge reasoned that the federal statute’s “clear language . . . is limited to a state’s statute of limitations.” JA 254. The magistrate judge noted that “[a] statute of limitations and a statute of repose are two distinct types of statutes.” Id. A statute of limitations is a “‘procedural device that operates as a defense to limit the remedy available from an existing cause of action.’” Id. (quoting First United Methodist Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 865 (4th Cir. 1989)). A statute of repose, by contrast, “‘is a substantive limitation, and is a condition precedent to a party’s right to maintain a lawsuit.’” Id. (quoting Tipton & Young Const. Co., Inc. v. Blue Ridge Structure Co., 446 S.E.2d 603, 605 (N.C. Ct. App. 1994)). The district court expressly rejected the reasoning of the Ninth Circuit in McDonald v. Sun Oil Co., 548 F.3d 774, 782 (9th Cir. 2008), which had held that a state statute of repose was preempted by CERCLA. According to the district court, “[i]t appears that the McDonald court created an ambiguity [in the CERCLA statute] where none existed.” JA 313. In this appeal, plaintiffs challenge the district court’s conclusion that the displacement effected by CERCLA encompasses only statutes of limitations, and does not extend to statutes of repose. SUMMARY OF ARGUMENT This case involves a federal statute that operates to delay the commencement of state statutes of limitations for certain causes of action involving damages flowing -7-

from exposure to hazardous substances. As the district court properly recognized, the federal provision, by its terms, affects only time limitations set out in a “statute of limitations.” 42 U.S.C. § 9658(b)(2). Here, the applicable North Carolina law is not a statute of limitations, but is instead a statute of repose. Statutes of limitations and statutes of repose are fundamentally distinct from each other, and are not interchangeable. The district court correctly concluded that the federal CERCLA provision has no application to statutes of repose. The district court’s judgment for the defendant should therefore be affirmed. The provision of federal law at issue here operates to delay the “commencement date” of the “applicable limitations period” for certain categories of environmental actions under state law. 42 U.S.C. § 9658(a)(1). The term “applicable limitations period” is specifically defined to mean “the period specified in a statute of limitations during which a civil action . . . may be brought.” Id. § 9658(b)(2). By its plain terms, the statute only affects a state enactment if it is “a statute of limitations.” The particular North Carolina provision at issue here provides that “no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.” N.C. Gen. Stat. § 1-52(16). It is undisputed that this provision is a statute of repose. And this statute of repose is not simply a type of statute of limitations. Statutes of limitations and statutes of repose address different issues and serve different functions. Unlike a statute of limitations, a -8-

statute of repose is a substantive restriction on liability rather than a procedural rule. In addition, it begins to run at the time of the defendant’s last act or omission, while a statute of limitations begins to run at the time plaintiff’s injury occurs or is discovered. The courts, including this Court, have long recognized the distinction between statutes of limitations and statutes of repose. Plaintiffs are mistaken to suggest that there was ambiguity in the use of the terms “statute of repose” and “statute of limitations” when Congress amended CERCLA in 1986. The distinction between these terms was well established by then. Moreover, the term “statute of limitations” has never been thought to encompass provisions of the type at issue here. Rather, any arguable ambiguity related only to the scope of the term “statute of repose,” and thus has no bearing on the term Congress actually used (“statute of limitations”). Because CERCLA’s plain text makes clear that it has no application to statutes of repose, there is no need to consult legislative history. In any event, that history confirms the reading compelled by the statute’s text. Through the report commissioned in the CERCLA statute itself, Congress was made aware of the distinction between statutes of limitations and statutes of repose, and elected to use only the term “statute of limitations” in its enactment. In addition, Congress did not endeavor to help victims of hazardous substances at all costs, but instead deliberately declined to disturb substantive tort law. There is therefore no basis for reading an -9-

alteration to state “statute[s] of limitations” to upset substantive state legislative choices reflected in statutes of repose. The district court properly held that CERCLA does not displace statutes of repose, as opposed to statutes of limitations, and its judgment should be upheld. ARGUMENT I.

The CERCLA provision’s text unambiguously precludes its application to North Carolina’s statute of repose. A.

North Carolina’s statute of repose is not a “statute of limitations,” and thus not an “applicable limitations period” within the meaning of CERCLA.

The CERCLA provision at issue in this case provides that, for certain actions brought under state law regarding damages allegedly caused by exposure to hazardous substances, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute. 42 U.S.C. § 9658(a)(1). The provision thus alters the “commencement date” of the “applicable limitations period.” Id. The statute defines the term “applicable limitations period” to mean “the period specified in a statute of limitations during which a civil action . . . may be brought.” Id. § 9658(b)(2). As the Fifth Circuit recognized in rejecting the precise argument plaintiffs assert here, CERCLA explicitly -10-

affects only the operation of a state statute that is a “statute of limitations.” Id.; see Burlington Northern & Santa Fe Ry. Co. v. Poole Chemical Co., 419 F.3d 355, 362 (5th Cir. 2005). The North Carolina provision at issue here states that “no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.” N.C. Gen. Stat. § 1-52(16). This provision is a statute of repose, and not a “statute of limitations.” It is therefore entirely unaffected by CERCLA, as the district court properly determined. As the district court recognized, a “statute of limitations and a statute of repose are two distinct types of statutes.” JA 254. A statute of limitations is “a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered).” Black’s Law Dictionary 1546 (9th ed. 2009). It is a “procedural device” that is “motivated by considerations of fairness to defendants and . . . intended to encourage prompt resolution of disputes by providing a simple procedural mechanism to dispose of stale claims.” First United Methodist Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 865-866 (4th Cir. 1989). The addition of a “discovery rule” to a statute of limitations alters the traditional balance regarding “stale claims,” but does not affect the substantive rights of the plaintiff or defendant.

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Statutes of repose, in contrast, insulate potential defendants from liability indefinitely into the future. Accordingly, statutes of repose eliminate a cause of action altogether after a fixed number of years, by creating “a substantive right in those protected to be free from liability after a legislatively-determined period of time.” Id. at 866 (emphasis added). Thus, a statute of repose represents “a legislative balance of the respective rights of potential plaintiffs and defendants struck by determining a time limit beyond which liability no longer exists.” Id. Relatedly, a statute of repose typically provides certainty to defendants by commencing at a specified time determined solely by the defendant’s actions — here, “the last act or omission of the defendant giving rise to the cause of action,” N.C. Gen. Stat. § 1-52(16) — without regard to the timing of any effect of the defendant’s actions on the plaintiff. Even the Ninth Circuit, which ultimately (and, in our view, erroneously) adopted the position plaintiffs advocate in this case, recognized that a “statute of limitations requires a lawsuit to be filed within a specified period of time after a legal right has been violated,” while, in contrast, “statutes of repose are designed to bar actions after a specified period of time has run from the occurrence of some event other than the injury which gave rise to the claim.” McDonald v. Sun Oil Co., 548 F.3d 774, 779 (9th Cir. 2008) (internal quotation marks omitted). The absolute nature of statutes of repose, and their definitive starting point, work together to afford providers of essential services with an assurance that no -12-

lawsuit can be filed after the passage of a fixed amount of time, regardless of the timing of the injury to the plaintiff or its discovery. For example, in the context of building design and construction or products liability, an injury could occur after the defendant’s actions are long concluded, and the statute of limitations typically would not begin to run until the time of injury. Statutes of repose address the concern that defendants could thus be exposed to liability indefinitely for actions in the distant past, regardless of the length of the statute of limitations. See Goad v. Celotex Corp., 831 F.2d 508, 511 (4th Cir. 1987) (“In contrast to statutes of limitation, statutes of repose serve primarily to relieve potential defendants from anxiety over liability for acts committed long ago.”). B.

Congress explicitly limited the scope of CERCLA’s preemption provision to statutes of limitations, and did not extend the provision to statutes of repose.

Plaintiffs cannot seriously dispute that statutes of repose and statutes of limitations are different, and serve distinct functions. See, e.g., Appellants’ Br. 34 (arguing that section 9658 should not be construed to “apply only to state statutes of limitation” or to “preempt only statutes of limitations and not statutes of repose”). Instead, they urge that “[t]he distinction between statutes of limitation and statutes of repose is . . . immaterial to preemption analysis.” Id. at 29. Given that the CERCLA provision at issue, on its face, affects only “the period specified in a statute of limitations,” 42 U.S.C. § 9658(b)(2), that assertion is plainly incorrect as a matter of -13-

statutory text, as the district court properly concluded. By its terms, the displacement of state law effected by section 9658 encompasses state statutes of limitations, but does not extend to state statutes of repose. Plaintiffs are on no firmer ground in asserting that there is ambiguity in the statutory phrase “limitations period.” See Appellants’ Br. 15-18. CERCLA specifically defines “applicable limitations period” to “mean the period specified in a statute of limitations during which a civil action . . . may be brought.” 42 U.S.C. § 9658(b)(2) (emphasis added). Because Congress has explicitly defined the term “applicable limitations period” to include only statutes of limitations, and not statutes of repose, it is immaterial whether that term might, in theory, have a broader connotation in the absence of a statutory definition. See Meese v. Keene, 481 U.S. 465, 484 (1987) (“It is axiomatic that the statutory definition of the term excludes unstated meanings of that term.”). Because the North Carolina provision at issue here is not a statute of limitations, it is not an “applicable limitations period” for purposes of CERCLA. See Burlington Northern, 419 F.3d at 362. Unable to find any support in CERCLA’s language, plaintiffs urge that the Court should be “cautioned against prematurely concluding a statutory inquiry with the plain language,” citing the dissent in United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 249 (1989) (O’Connor, J., dissenting). See Appellants’ Br. 11. But as the majority opinion in that case recognized, when “the statute’s language is plain, the sole -14-

function of the courts is to enforce it according to its terms.” Ron Pair, 489 U.S. at 241 (internal quotation marks omitted). In addition to using the term “statute of limitations,” section 9658 operates in a way that only makes sense when applied to statutes of limitations. The CERCLA provision prevents a statute of limitations from beginning to run before the plaintiff could reasonably have been aware of his injury and its cause. See 42 U.S.C. § 9658(a)(1), (b)(4). As noted above, by their very nature, statutes of repose provide certainty to defendants by beginning to run on a fixed date that is known to the defendant. The CERCLA provision’s operation is thus fundamentally incompatible with the premise of statutes of repose, and cannot reasonably be understood to affect the operation of a statute of repose. Plaintiffs underscore the errors in their analysis by asserting that “construing CERCLA section 9658 to apply only to state statutes of limitation would lead to vastly different accrual dates depending on the state in which a facility released hazardous substances into the environment.” Appellants’ Br. 34. Section 9658, by its explicit terms, applies only to state statutes of limitations. For this reason alone, there is no way to “construe” Congress’s enactment to apply to state laws that are not statutes of limitations. But in any event, plaintiffs’ statement that claims would have “vastly different accrual dates” is fundamentally inaccurate on its own terms. Statutes of

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repose do not alter “accrual dates”; rather, they place absolute expiration dates on the underlying substantive cause of action. C.

There was no ambiguity in 1986 about the meaning of the term “statute of limitations.”

Plaintiffs seek to inject ambiguity into 42 U.S.C. § 9658 by asserting that, at the time it was enacted, there was “considerable uncertainty about the distinction between statutes of limitations and other limitations periods, such as statutes of repose,” echoing a similar conclusion reached by the Ninth Circuit. See Appellants’ Br. 14 (citing McDonald, 548 F.3d at 774). This argument is mistaken. 1. The definition of “statute of limitations” was well established by 1986, when Congress enacted 42 U.S.C. § 9658. Significantly, the report issued pursuant to section 301(e) of the original CERCLA statute (the “301(e) Report”) expressly recognized the difference between statutes of limitations and statutes of repose. Far from suggesting that the two terms were synonymous or interchangeable, that Report noted that statutes of repose can “have the same effect as some statutes of limitation,” insofar as each can eliminate a plaintiff’s right to proceed before the plaintiff discovers his injury. 301(e) Report, at 241 (emphasis added). The Report’s recommendations similarly reflected an awareness of the distinction: the Report recommended that States adopt discovery rules for their statutes of limitations, and separately recommended the outright repeal of state statutes of repose. Id. Congress ultimately -16-

required states to adopt discovery rules for their statutes of limitations, but declined to enact any provision of federal law addressing state statutes of repose or any other aspect of substantive state tort law. The 301(e) Report made clear that its proposal regarding the implementation of a discovery rule for statutes of limitations was not targeted at North Carolina’s statute of repose, which was already in effect. To the contrary, an appendix to the Report specifically acknowledged the North Carolina statute of repose, while recognizing that North Carolina already had a discovery rule for its statute of limitations. Because of North Carolina’s discovery rule, the Report correctly concluded that North Carolina’s “statute of limitations will not bar a private cause of action arising from latent personal injuries.” Id. at B-10 (emphasis added); see also id. at 28 & 118 n.4 (listing North Carolina as among States that had “adopted a ‘discovery rule’ in some form”). Congress was thus once again made aware of the distinction between adopting a discovery rule and repealing a statute of repose, in the specific context of the North Carolina provision that is at issue in this case. Both the CERCLA provision and the North Carolina statute itself impose a “discovery rule” on the portion of the statute that is a statute of limitations. But neither North Carolina’s statutory discovery rule nor anything in CERCLA affects the portion of the North Carolina statute that is a statute of repose imposing an absolute bar on substantive liability regardless of the timing of

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the plaintiff’s injury. The state statute of repose remains fully effective unless North Carolina takes the further step of repealing it. 2. By the time 42 U.S.C. § 9658 was enacted, courts had also recognized the fundamental distinction between statutes of limitations and statutes of repose. Construing a predecessor to the statute of repose at issue here, for example, the North Carolina Supreme Court observed in 1982 that a statute that “‘attempts to bar absolutely claims . . . after a period measured from a date other than the date of accrual of those claims . . . does not constitute a statute of limitation.” Bolick v. Am. Barmag Corp., 293 S.E.2d 415, 419 n.4 (N.C. 1982) (quoting North Carolina Court of Appeals decision with approval) (second emphasis added). Other courts had similarly recognized this distinction. See, e.g., First United, 882 F.2d at 865-66 (discussing pre1986 cases). Plaintiffs and the Ninth Circuit’s decision in McDonald mistakenly seek to characterize the term “statute of limitations” as ambiguous. See McDonald, 548 F.3d at 781 n.3 (collecting cases that purportedly confuse the terms “statute of repose” and “statute of limitations”); Appellants’ Br. 14. But the sources on which they seek to rely exhibit a clear and consistent understanding of the term “statutes of limitations.” The 1980 article upon which both plaintiffs and the Ninth Circuit rely stated that there were “at least five definitions of ‘statute of repose’ . . . in use.” Francis E. McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 -18-

Am. U.L. Rev. 579, 582 (1980). But the article nowhere suggests that the term “statute of limitations” was ambiguous or subject to more than one definition.3 The statutory term here is “statute of limitations,” 42 U.S.C. § 9658(b)(2), and that term does not include the North Carolina repose provision at issue. Moreover, the 1980 article characterized statutes like the one at issue in this case as “distinct from a statute of limitation because [they] begin[] to run at a time unrelated to the traditional accrual of the cause of action.” McGovern, 30 Am. U.L. Rev. at 584. Crucially, the North Carolina provision at issue here, which begins to run upon “the last act or omission of the defendant giving rise to the cause of action,” is likewise not a statute of limitations. See N.C. Gen. Stat. § 1-52(16). The other article on which the Ninth Circuit relied also highlights the distinction between statutes of limitations and statutes of repose. See Lisa K. Mehs, Comment, Asbestos Litigation and Statutes of Repose: The Application of the Discovery Rule in the Eighth Circuit Allows Plaintiffs to Breathe Easier, 24 Creighton L. Rev. 965, 966-68 (1990). As that article emphasizes, statutes of repose are “substantive in nature, defining rights by extinguishing claims which accrue after the expiration of the statutory period,” and thus “can operate to bar causes of action before they even

3

The Ninth Circuit’s statement that the “article suggests that there were at least five definitions of ‘statute of limitations’ in use” is thus incorrect on its own terms. Compare McDonald, 548 F.3d at 781 n.4, with McGovern, 30 Am. U.L. Rev. at 582. -19-

accrue.” Id. at 967. This Court thus explained in 1987 that “where a statute of repose has been enacted, the time for filing suit is engrafted onto a substantive right created by law.” Goad, 831 F.2d at 511. “In contrast, statutes of limitation prescribe a time frame within which an accrued cause of action must be brought,” are “primarily procedural in nature,” and “only extinguish[] the right to maintain an accrued cause of action.” Mehs, 24 Creighton L. Rev. at 968; see also Bolick, 293 S.E.2d at 418 (recognizing same distinction). Plaintiffs are similarly wide of the mark when they assert that the terms “statute of limitations” and “statute of repose” are sometimes used interchangeably. See Appellants’ Br. 14. They cite no examples of a court or other commentator describing a provision like the one at issue here as a statute of limitations. Rather, all of their examples involve the occasional usage of the term “statute of repose” in a broad sense that would encompass all time limitations (including, but not limited to, statutes of limitations). See McGovern, 30 Am. U.L. Rev. at 583 (noting that “statute of repose” was sometimes used as a general term for any statute that “promotes a policy of finality in legal relationships”). Such non-technical invocation of the term “statute of repose” explains why courts and commentators sometimes stated, when discussing provisions that were unequivocally statutes of limitations, that “[s]tatutes of limitations . . . are statutes of repose.” See, e.g., United States v. Kubrick, 444 U.S. 111, 117 (1979). But any ambiguity regarding the breadth of the term “statute of repose” -20-

does not alter the well-settled definition of “statute of limitations,” which is the statutory term Congress deployed in the provision at issue here. See 42 U.S.C. § 9658(b)(2). The Ninth Circuit in McDonald mistakenly focused on the 1980 article’s statement that “[o]lder treatise writers and judges often used ‘repose’ and ‘limitation’ interchangeably.” McGovern, 30 Am. U.L. Rev. at 582-83 (citing J. Angell, A Treatise on the Limitation of Actions at Law, and Suits in Equity (1829); Gorman v. Judge of Newaygo Circuit Court, 27 Mich. 138, 141 (1873)); see also Mehs, 24 Creighton L. Rev. at 967 (similar statement citing only 1980 McGovern article as support). Even if usage in 19th-century sources were deemed relevant to an Act of Congress promulgated in 1986, the article in no way suggests that even those “[o]lder” sources would have described a provision like the one at issue here as a statute of limitations. Rather, the examples given, like the ones cited above, simply described, in general terms, statutes of limitations as also being statutes of repose. See McGovern, 30 Am. U.L. Rev. at 583 n.17 (quoting examples). Plaintiffs’ suggestion that Congress itself has employed an improperly expansive definition of “statute of limitations” is similarly inapt. See Appellants’ Br. 15. Neither federal statute upon which plaintiffs seek to rely actually used the term “statute of limitations.” See 31 U.S.C. § 3731(b)(2) (captioned “false claims

-21-

procedure”); 21 U.S.C. § 335b(b)(3)(B) (captioned “Limitation on Actions”).4 Moreover, each is a bifurcated statute containing both a statute of limitations and a statute of repose. Even if the entire statute could be characterized as containing a statute of limitations, there would be no basis for applying that label to the portion of the statute that operates as a statute of repose. In short, in enacting the CERCLA provision at issue here, Congress legislated against the well-settled understanding that statutes of limitations are procedural rules that require plaintiffs to commence a cause of action within a fixed period of time after the injury is suffered or discovered. This accepted meaning excludes the particular North Carolina provision at issue here, which is a statute of repose, and not a statute of limitations. The district court properly construed the term “statute of limitations” in 42 U.S.C. § 9658 in accordance with the term’s established meaning. II.

Adopting a discovery rule for statutes of limitations without displacing statutes of repose reflects Congress’s legislative balancing of competing objectives. In a further attempt to escape the statute’s plain language, plaintiffs

simplistically assert that Congress intended section 9658 “to provide victims of latent environmental damage a remedy against the source of the contamination,” suggesting that the displacement effected by section 9658 must therefore be read to encompass

4

Although plaintiffs cite 21 U.S.C. § 335(b)(3)(B), see Appellants’ Br. 15, they presumably mean to refer to 21 U.S.C. § 335b(b)(3)(B). -22-

statutes of repose. Appellants’ Br. 27. “But no legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice — and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525-26 (1987). Although Congress was undoubtedly interested in assisting tort plaintiffs to some degree, it balanced that interest against several competing values of at least equal importance. Congress expressly considered and rejected numerous proposals to generally expand remedies for victims of environmental damage. Critics of such proposals contended that they were unduly intrusive on state law, unfair to prospective defendants, and potentially in tension with the proper operation of CERCLA. In light of this history, there is no basis for imputing to Congress the decision to displace substantive law codified in state statutes of repose, particularly where, as discussed above, CERCLA’s text compels the opposite result. For example, apart from providing for the recovery of certain cleanup costs, Congress rejected efforts to establish new legal remedies for individuals harmed by hazardous substances, in part because Members of the House and Senate saw them as “overriding substantive laws in the various States.” 131 Cong. Rec. 35,647 (1985) (statement of Rep. Glickman); see also S. Rep. No. 96-848, at 119 (1980) (additional -23-

views of Senators Domenici, Bentsen, and Baker) (noting that federal cause of action would “change[] State tort law”). The U.S. Department of Commerce similarly expressed concern that a new cause of action would represent an “exceptionally broad intervention into an area traditionally within state jurisdiction.” Amending and Extending the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund): Hearings Before the S. Comm. on Environment and Public Works, S. Hrg. 98-1003, at 997 (1984) (testimony of Irving P. Margulies, General Counsel, Dep’t of Commerce). Nor was concern about displacing substantive law limited to debate over a proposed federal cause of action. Congress declined, for example, to urge states to adopt a negligence standard for contractors providing cleanup services. Such proposals “were expressly not agreed to . . . due to the deeply held conviction on the part of some that these matters should be left exclusively to the province of the States to decide, unswayed by congressional influence.” 132 Cong. Rec. 28,412 (1986) (statement of Senator Stafford); see also id. (noting “powerful and adamant insistence . . . that the integrity of State laws, and the well-established Federal principle of preserving them, be maintained”). Congress also affirmatively enacted a provision clarifying that apart from the provision at issue here and one other provision related to judicial review of agency orders, CERCLA “does not affect or otherwise impair the rights of any person under Federal, State or common law.” 42 U.S.C. § 9659(h). -24-

Congress was also concerned about other effects of expanding private tort liability, including disruption of other aspects of CERCLA. CERCLA “was designed to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.” Burlington Northern & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602 (2009) (internal quotation marks omitted). Expanding liability to individual tort plaintiffs could undermine this central purpose by discouraging voluntary disclosure and cleanup. See, e.g., 131 Cong. Rec. 35,647 (1985) (statement of Rep. Lent) (opposing proposed federal cause of action on the ground that private party would not “admit to responsibility and put up its own money to clean up . . . when the minute they do, they expose themselves to such unlimited, joint and several liability, under [CERCLA]”). The Department of Commerce also expressed a more general concern that a new federal cause of action would impose “extremely heavy, non-productive costs upon U.S. industry, and ultimately upon consumers and the economy.” Margulies Testimony, S. Hrg. 98-1003, at 995. Plaintiffs are thus quite mistaken to suggest that CERCLA’s “remedial” nature requires an uncritically broad reading of 42 U.S.C. § 9658, or that reading the provision consistent with its plain text would somehow frustrate CERCLA’s purpose. See Appellants’ Br. 19. Congress’s balancing of competing interests is also reflected in its decision to implement only a single proposal from the 301(e) Report. That Report contained a -25-

series of recommendations for state and federal actions to benefit persons injured by hazardous substances. Particularly relevant here is the Report’s Ninth Recommendation, which addressed “Plenary State Court Actions” and the “Removal of Obstacles and Barriers to Effective Court Actions for Personal Injuries Resulting from Exposure to Hazardous Wastes.” 301(e) Report, at 240. In addition to the recommendation that statutes of limitations begin to run only upon discovery of the injury and its cause, which Congress adopted through 42 U.S.C. § 9658, the Ninth Recommendation included a number of proposals for other changes in state law. For example, the Ninth Recommendation suggested that States adopt liberal joinder rules, impose joint and several liability in private tort actions, and make strict liability available in hazardous-waste cases. See 301(e) Report, at 241-45. Although Congress could have addressed these issues as a matter of federal law, it conspicuously declined to do so, instead leaving them to the States. The Report also stated, most relevant here, that the Ninth “Recommendation is intended also to cover the repeal of the statutes of repose which, in a number of states, have the same effect as some statutes of limitation in barring plaintiff’s claim before he knows that he has one.” Id. at 241. Like the other proposals for substantive changes to state law included in the Ninth Recommendation, Congress did not enact any provision of federal law to carry out this proposal.

-26-

In short, Congress declined to enact numerous proposals to supersede substantive state law. Because, as this Court has noted, “[t]he distinction between statutes of limitation and statutes of repose corresponds to the distinction between procedural and substantive laws,” Goad, 831 F.2d at 511, it is unsurprising, in context, that Congress elected to impose a discovery rule on state statutes of limitations but declined to take the additional step of overriding substantive state law codified in statutes of repose. Compare, e.g., 131 Cong. Rec. 35,647 (1985) (statement of Rep. Glickman) (opposing federal cause of action because it “overrides substantive standards of the States” and thus is “not just a procedural amendment”), with id. at 35,640 (statement of Rep. Glickman) (expressing support for discovery-rule provision); see also Pub. L. 99-499, § 203, 100 Stat. 1613, 1695 (1986) (amendment adding 42 U.S.C. § 9658 captioned “State procedural reform”). Congress’s explicit reluctance to displace state law underscores the applicability of the traditional rule that “[w]here the text of a preemption clause is open to more than one plausible reading, courts ordinarily accept the reading that disfavors pre-emption.” Riegel v. Medtronic, Inc., 552 U.S. 312, 335 (2008) (internal quotation marks omitted). This rule has particular force where, as here, “federal law is said to bar state action in fields of traditional state regulation,” such as “matters of health and safety.” Id. at 334 (internal quotation marks omitted). Here, as discussed above, reading 42 U.S.C. § 9658 not to preempt state statutes of repose is mandated by the -27-

statute’s plain language. But in any event, this reading is, at an absolute minimum, entirely plausible, and the district court properly adopted it as a matter of statutory construction. Plaintiffs fare no better in attempting to describe the proper operation of 42 U.S.C. § 9658 as an “absurd result.” Appellants’ Br. 32. There is nothing absurd about, on the one hand, imposing a discovery rule on a statute of limitations, while, on the other hand, also providing some certainty to defendants by imposing an absolute bar on liability a fixed amount of time after the occurrence of the defendant’s last challenged act or omission. To the contrary, that is exactly how many statutes of repose, including North Carolina’s section 1-52(16), operate as written and intended. See Prosser & Keeton on Torts, § 30, at 167 (5th ed. 1984) (noting that “widening principles of liability including the discovery rule” caused “the great majority of states” to enact “statutes of ‘repose’” that “plac[e] an outer time limit on negligence and related claims in certain contexts”). And the fact that some plaintiffs will be unaware of their claims until after the statute of repose expires is an inherent feature of statutes of repose. See Anderson v. United States, 669 F.3d 161, 166 (4th Cir. 2011) (statute of repose can “extinguish claims prior to their accrual”). But see Appellants’ Br. 35-36. Plaintiffs’ argument essentially reduces to a contention that statutes of repose are themselves absurd. It is no more “absurd” to give full force and effect to state statutes of repose than to respect other aspects of state law that Congress likewise -28-

elected not to disturb, such as standards of care (e.g., strict liability vs. negligence), and the calculation of various elements of damages. Moreover, there is nothing novel about overriding a state’s statute of limitations while continuing to give effect to its statute of repose. As this Court recently recognized, Congress did exactly that for tort claims against the United States under the Federal Tort Claims Act: federal law in that setting preempts state statutes of limitations, but state statutes of repose have continuing force with respect to claims against the United States. Anderson, 669 F.3d at 165. Similarly, state courts routinely apply their own statutes of limitations to claims arising under the laws of other States, but apply foreign States’ statutes of repose, just as they apply the remainder of the foreign State’s substantive law. See, e.g., Boudreau v. Baughman, 368 S.E.2d 849, 857 (N.C. 1988) (adopting that rule and noting that the “overwhelming weight of authority in other jurisdictions accepts the characterization of statutes of repose as substantive provisions in a choice of law context”). Congress took the same approach in crafting the CERCLA provision at issue in this case, and the district court here properly respected that congressional policy choice.

-29-

CONCLUSION For the foregoing reasons, the district court’s judgment should be affirmed.5 Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General ANNE TOMPKINS United States Attorney s/ Daniel Tenny THOMAS M. BONDY (202) 514-4825 DANIEL TENNY (202) 514-1838 Attorneys, Appellate Staff Civil Division, Room 7215 Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 AUGUST 2012

5

The Department of Justice gratefully acknowledges the assistance of Ben Eidelson, a law student at the Yale Law School, in the preparation of this brief. -30-

CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 29(D) I hereby certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 29(d). This brief contains 6,960 words.

s/ Daniel Tenny Daniel Tenny

CERTIFICATE OF SERVICE I hereby certify that on this 16th day of August, 2012, I filed the foregoing Brief for the United States through the Court’s ECF system. The ECF system will effect service on all counsel of record in this matter.

/s/ Daniel Tenny Daniel Tenny

ADDENDUM

TABLE OF CONTENTS Page 42 U.S.C. § 9658 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A1 N.C. Gen. Stat. § 1-52(16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A3 Excerpts from 301(e) Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A4

42 U.S.C. § 9658 § 9658. Actions under State law for damages from exposure to hazardous substances (a) State statutes of limitations for hazardous substance cases (1) Exception to State statutes In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute. (2) State law generally applicable Except as provided in paragraph (1), the statute of limitations established under State law shall apply in all actions brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility. (3) Actions under section 9607 Nothing in this section shall apply with respect to any cause of action brought under section 9607 of this title. (b) Definitions As used in this section-(1) Subchapter I terms The terms used in this section shall have the same meaning as when used in subchapter I of this chapter. (2) Applicable limitations period The term “applicable limitations period” means the period specified in a statute of limitations during which a civil action referred to in subsection (a)(1) of this section may be brought. -A1-

(3) Commencement date The term “commencement date” means the date specified in a statute of limitations as the beginning of the applicable limitations period. (4) Federally required commencement date (A) In general Except as provided in subparagraph (B), the term “federally required commencement date” means the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (a)(1) of this section were caused or contributed to by the hazardous substance or pollutant or contaminant concerned. (B) Special rules In the case of a minor or incompetent plaintiff, the term “federally required commencement date” means the later of the date referred to in subparagraph (A) or the following: (i) In the case of a minor, the date on which the minor reaches the age of majority, as determined by State law, or has a legal representative appointed. (ii) In the case of an incompetent individual, the date on which such individual becomes competent or has had a legal representative appointed.

-A2-

N.C. Gen. Stat. § 1-52 § 1-52. Three years Within three years an action-... (16) Unless otherwise provided by statute, for personal injury or physical damage to claimant’s property, the cause of action, except in causes of actions referred to in G.S. 1-15(c), shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs. Provided that no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action. ....

-A3-

INJURIES AND,.. DAM~GESI.. FROM HAZ~RDIOUS. WASTES ,~- .,. ANALYSIS. AND-IMPROVE~,~NT OF LEG’AL RE~,~D~ES.

James R. Zazzali, Chairman Frank P. Grad, Reporter Frederick R. Anderson Frederick M. Baron Charles D. Breitel Rufus L. Edmisten George C. Freeman, Jr. ~ Richard F. Gerry Norman J. Landau Weyman I. Lundquist Jeffrey O’Connell Warren R. Spannaus Members of the Study Group

July !, 1982

-A4-

I.

~ecUrring ISsuesin Haza~dOUs W~slte’Liti~atTon A. ’St~t’~t’e S ~o’f ~i~itation Colmmencement of the running of the statute of limita-

tions can be a barrier to recovery under both common law and statutory remedies. This issue does not arise specifically from the applicable period of limitations which depends on the cause of action;3 the question is ~hen the statute begins

to__r_un~ ......the_~ime._when_the~.,~a.c~io~_~accnue_s .........._The pl.aintiff’s ability to recover will often depend on whether a libera! discovery rule is applicable. Exposure to certain hazardous wastes may result in cancer,

neurological damage, and in mutagenic and teratogenic changes. Most of these types of injuries have long latency periods, sometimes’20 years or longer. With long latency periods, a rule which starts the running of the statute from the time of exposure will defeat most actions before the plaintiff knows of his injury. At least thirty-nine states have adopted a "discovery rule" in some form. 4 Even the rule that starts the running of the statute from the time of discovery of the injury, or from the time when the injury reasonably should have been discovered, may not protect a plaintiff who may not even be aware of the initial exposure~ or who may not connect early symptoms with a known exposure. A more recent formulation starts the running of the statute from the time the injured party ascertains a causal .connection between the injury

28 -A5-

and the earlier exposure or should reasonably be able to do so. Thirteen jurisdictions (California, lllinois~ lowa, Kentucky, Maryland~ Massachusetts~ Minnesota, Missouri~ New Hampshire, Oklahoma~ West Virginia~ Vermont, Washington) have adopted this formulation. Another thirteen states postpone the accrual of the action until the plaintiff also realizes that he has a cause of action (Arizona, Colorado, Florida, Hawaii, Louisiana, Michigan, Montana, New Jersey, Puertd Rico, South Carolina, Texas, West Virginia, Wyoming). A variety of other formulations exist; some commence the statute when the plaintiff’s injuries are capable of ascertainment (Arkansas~ Indiana, Kansas~ Maine, North Carolina). Others commence it when the plaintiff actually discovers or knows that he has a particular disaase or injury (District of Columbia, Nebraska); others when the plaintiff knows, or should know, in the exercise of reasonable judgment, that he has suffered a disease or injury (Delaware, Georgia, Tennessee and Connecticut~ with the limit of three years after the act or omission that caused the injury). Particular concern about product liability and toxic substances is reflected in statutes of limitation that relate specifically to injuries in those categories of cases. For example~ Alabama has provided specifically for insidious diseases in product liability causes, of action~5 and in addition~ enacted a provision specifically addressed to injury

-A6-

resulting from exposure to asbestos and asbesto~s-containing products.

At least two states, although not adopting a

discovery rule for product liability cases, have extended the general limitations period in product liability cases. Two jurisdictions have statutes that reject any version of the discovery rule, (Idaho and Virginia), and four jurisdictions have rejected the discovery rule by judicial determination~ (New York, South Dakota~ Virgin Islands, Wisconsin)~ Both New York and Virginia have somewhat softened the impact of their restricted statutes of limitation in cases where it was difficult to determine exactly when the injury occurred~ In these six jurisdictions, a plaintiff may still be time

.~

barred before he knows that he has been hurt. A few jurisdictions havenot as yet clearly determined the issue, though there is a trend in the direction of the adoption of the discovery rule. In states that have not as yet adopted a discovery rule~ the statute of limitation remains a substantial barrier to recovery for injuries resulting from exposure to hazardous wastes. I0

3O

-A7-

PART IIIAMNOTES

CERCI~ ("Superfund") §I07(i), 42 U.S.C. §9607(i), referring to 7 U.S.C. §136, excepting damages for normal pesticide field applications. Superfund §§103, 107, 42 U.S.C. §§9603, 9607. For discussion of related issues see ~~Govern, Toxic Substances Litigation in the FOurth Circuit, 16 U. RICHMOND L. REV. 247 (19~2). Probably the most fruitful areas of future litigation concerning statutes of limitation and statutes of repose will involve a host of ingenious attempts by plaintiffs’ attorneys to circumvent these statutory bars. Efforts will be made to find more ~avorab!e fortms, either federal or state. More attention will be devoted to both statutory and common law provisions such as incapacity, fraudulent concealment or estoppe! to toll these statutes. Plaintiffs will seek to narrow the applicability of statutory bars by urging definitions of terms that allow more flexibility. New defendants and new concepts of plaintiffs and dsmages will arise. [citations omitted] Thirty-nine jurisdictions have adopted the discovery rule. Some have done this by statute. Se___~e Ala. Code §6-5-500 (1979); Conn. Gen. Stat. Ann. §52-584 (Supp. 1982); Kan. Stat. Ann. §60-513(a)(4) (1976); Mo. Ann. Stat. §516.120(4) (Vernon 1952); N.C. Gen. Stat. §1-52(5) (1969); Ohio Rev. Code~2305-i0 (1980); S.C. Code §15-3-535 (Supp. 1980); Vt. Star. Ann. tit. 12, §518(a) (1973). Other states have adopted the rule by judicial interpretation. See Austin v. Fulton, 444 P. 2d 536 (Alaska 1968); Sato v. Van Denburgh,----123 Ariz. 225, 599 P. 2d 181 (1979); Schenebeck v. Sterling Drug, Inc., 423 F.2d 919 (8th Cir. 1970) cited with approval in Midwest Mutual Insurance Co. v. Arkansas National Co., 260 Ark. 352, 357, 538 S.W. 2d 574, 577 (1976); Warrington v. Charles Pfizer and Co., 274 Cal. App. 2d 564, 80 Cal. Rptr. 130 (1969); Owens v. Brochner, 172 Colo. 525, 474 P. 2d 603 (1970); Burns v. Bell, 409 A.2d 614 (D.C. 1979); Oakes v. Gilday, 351 A.2d 85 (Del. Super. Cto 1976); City of Miami v. Brooks, 70 So.. 2d 306 (Fla. 1954); Forgay v. Tucker, 128 Ga. App. 497, 197 S.E. 2d 492 (1973); Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220 (1967); Withrell v. Weimer, 77 ili. App.3d 582, 396 N.E. 2d 268 (1979); Louisville Trust Co. v. Johns-Manville Products, 580 S.W. 2d 497 (Ky. 1979); Corsey v. State Dept. of Corrections, 375 So. 2d 1319 (La. 1979); Williams v. Ford ~tor Co., 342 A.2d 712 (Me. 1975); Harig v. Johns~anville Products, 284 Md. 70, 394 A.2d 299 (1978); Cannon v. Sears,~ Roebudk &Co., 374 Mass. 739, 374 N.E. 2d 582 (1978); Connel!y v. Paul Ruddy’s Co., 388 M~ch. 146, 200 N.W. 2d 70 (1972); Dalton v. Dow Chemical Co., 280 ~nn. 147, 158 N.W. 2d 5~80 (1968); Interstate ~{fg. Co. v. Interstate Products Co., 146 Mont. 449, 408 P.2d 478 (1965); Johnson v. St. Patrick’s Hospital, 148 Mont. 125, 417 P.2d 469 (1966); Grand Island School District #2 v. Celotex Corp., 203 Neb. 559, 279 N.W. 2d 603 (1979); Raymond v. Eli Lilly & Co., 177 N.H. 164, 371 A.2d 170 (1977); Lopez v. Sawyer 62 N.J. 267, 300 A.2d 563 (1973);

-A8-

Wil~iams v. Borden, Inc., 637 F.2d 731 (10th Cir. 1980) (Oklahoma law); Adams v. Oregon State Police, 289 Or. 233, 611 P.2d 1153 (1980); Schaffer v. Larzelere, 410 Pa. 402; 189 A.2d 267 (1963); Teeters v. Currey, 518 S.W.2d 512 (Tenn. 1974); Thrift v. Tenneco Chemicals, Inc., Heyden Division, 381 F.Smpp. 543 (N.D. Texas 1974); Ohler v. Tacoma General Hospital, 92 Wash. 2d 507, 598 P.2d 1358 (1979); Morgan v. Grace Hospital, Inc., 149 W. Va. 783, 144 S.E.2d 156 (Ct. App. 1965); Duke v. Housen, 589 P.2d 334 (Wyo. 1979), reh. den. 590 P.2d 1340~ Cert. denied 444 U.S. 863 (1979). 5.

Ala. Code §6-5-502 (Su!op. 1979).

6. Ala. Code §6-2-30(b) (1981 Supp.). See also Ohio Rev. Code §2305-10 (1981 Cure. Series G)(injury caused by exposure to asbestos or chromium). N,D. Cent. Code. §28-01.1-02 (1981 Supp.); S.D. Cod. Laws. Ann. §15-2-!2.1

isupp. 1981). See Idaho Code §5-219 (Bobbs~rri!l 1979) and Owyhee County v. Rife, I00 id---~ho 91, 593 P.2d 995 (1979); Va. ~ode §8.01-243(A) (1980) and ~wks v. Dehart, 206 Va. 810, 146 S.E.2d 187 (1966). See Thornton v. Roosevelt Hospital, 47 N.Y.2d 780. But see McKee v. Johns-----M~mvi!le Corp., 94 M~sc. 327, 404 N.Y.S.2d 814 (1979-~-(d--~covery rule applicable in strict product liability cases, though not in negligence cases). Se_99_e sAs___9.o AAberts v. Giebink, 299 N.W.2d 454 (1980); Austin v. Fulton, 4~4 P.2d 536 (Alaska 1968) (applicable to Virgin Islands law); Peterson v. Roloff, 57 Wis. 2d I, 203 N.W.2d 699 (1973). 9. See, e.g., McKee v. Johns~.~.ansvi!le Corp., 94 Misc. 2d 327, 404 N.Y.S.2d (19-~); Locke v. Johns-~ansville Corp., 275 S.E.2d 900 (1981). i0.

See }0iiss. Code Ann. §15-1-49, Wilder v. St. Joseph’s Hospital, 225 M~ss. 2~(!955) and Ford Motor Co. v. Broadway, 374 So. 2d 207 (Miss. 1974); Nev. Rev. Star. §11.190 (4)(e)~979), Palludan v. Bergin, 78 Nev. 441, 375 P. 2d 544 (1962) and Sorenson v. Pavlikowski, 94 Nev. 440, 581 P.2d 851 (1978); N.M. Star. ~rm. §37-1.8 (1978) and N.M. Electric Service Co. v. Montaney, 89 N.M. 278, 551 P.2d 634 (1976); N.D. Cent. Code §§28-01-16(5), 28-01.1-02 (1979) and Keller v. Clark Equipment Co., 474 F.Supp. 966 (D.N.D. 1979); R.!. Gen. Laws §9-1.14 (Cum. Supp. 1980), Roman, v. Westinghouse Electric Co., 114 R.I. 451, 366 A.2d 555 (1975) and Von Wi!las v. Williams, 117 R.!. 309, 366 A.2d 545 (1976); Utah Code A~m. §78.12-25(2) (1977), Snoot v. Hydra Flame Corp_., 522 P.2d 709 (Utah 1974)~ and Foil v. Ba ~!!inger, 601 P.2d 144 (Utah !979).

i!.

In many states a generator or disposer would be liable for improper disposal by an independent contractor on the theory that the disposal ’of hazardous waste is an inherently or intrinsically dangerous activity, unless the generator or disposer has exercised an especially high de~ee of care in selecting, instructing and, in some cases, supervisir~ the contractor. E__-g., Ewel! v. Petro Processors of Louisiana, 364.So~ 2d 60%{[(LaJ Ct. App. 1978); cf. Langan v. Va!icopters, Inc., 567 P.2d 218 (Wash. 1977)(crop dusting~ase). _~ne degree of care is higher in activities involving abnormally dangerous activities than in other cases, but "abnormally dangerous" can m~an a lower degree of bmzard than

-A9-

Ninth Recommendation: Tier Two -- Plenary State Court Actions; Removal of Obstacles and Barriers to Effective Court Actions for Personal Injuries Resulting from Exposure to Hazardous Wastes The Study Group recommends that the several states enhance and develop common law and statutory remedies, and that they remove unreasonable procedural and other barriers to recovery in court action for personal injuries resulting from exposure to hazardous waste, including rules relating to:,the time of accrual of actions, joinder of parties, apportionment and proof of causation. ~- ..... ¯ (a) Statutes of.Limitations A small number of states stlll follow the so-called traditional rule that the cause of action accrues from the time of exposur~

Another small number ~f State~

has not as yet clearly adopted either the traditional or the discovery rule. Since many of the hazardous wastes are carcinogens, mutagens, teratogens or substances with delayed impact on different organs or the central nervous system, the latency period For the appearance of injury oe disease is likely to be extended for thirty years or more. In states that have not clearly adopted the discovery rule (i.e., that the cause of action accrues from the time the plaintiff discovered or reasonably should have discovered the injury or disease) the cause of action will usually be

240

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time barred when the plaintiff discovers his hurt¯ The Study Group recommends that all states that have not already done so, clearly adopt the rule~that an action accrues when the plaintiff discovers or should have discovered the injury or disease and its cause¯ The Recommendation is intended also to cover the repeal of the statutes of repose which, in a number of states have the same effect as some .................. s~ha~u~es~~_limi~n_!~h~rr_ i~g_~laintiff’s claim before he knows that he has one.~ (b) Parties Plaintiff The complex nature of hazardous waste litigation makes it important that the combination of a number of plaintiffs in one lawsuit be encouraged, both for the sake of the judicial system and for the sake of the litigant. Exposure to hazardous wastes may not be limited to a single person but may often involve a substantial number of persons. The evidentiary problems in hazardous waste cases are substantial and involve sophisticated expert testimony of a medical and scientific nature, relating both to causation and nature of injury. Such testimony is not only very tim~-consuming, but also very expensive. The combination of a number of plaintiffs in a single case saves time and avoids inevitable trial delays resulting from large numbers of cases that would otherwise enter the judicial system one at a time. From the plaintiff’s point of view, the need to combine with others

241

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who are similarly situated is essential in all but the very largest individual claims, because very few lawsuits would justify the massive expenditures for expert witnesses and scientific and medical testimony that are needed. Thus, a denial of plaintiff combinations in the bringing of such lawsuits in ~ffect denies a plaintiff the opportunity to bring the action at all, unless his claim is exceptionally large. To facilitate easier plaintiff combinations, the Study Group recommends that states adopt liberal joinder r~les, so as to allow complex issues of causation and liability to be tried together, leaving such issues as individual damages to separate trials, if necessary. (c) Parties Defendant; Apportionment The selection of proper parties defendant in a hazardous waste case is difficult because of the long latency period of many hazardous waste injuries and diseases, and because of the numbe~ and variety of hazardous substances or wastes that may be implicated in any case.of injury resulting from exposure. When carcinogenic, mutagenlc and teratogenic effect may not manifest themselves until 20 or 30 years later, the ownership of the disposal site, or of the transportation facility involved in the initial exposure may have changed several times; there may be questions of the time of the initial exposure; there may be questions of the contributory impact of intervening exposures; and there may be a question as to which hazardous waste and 242

-A12-

from which source is responsible for the particular injury. It is impossible here~ as in other instances of environmental pollution, to attribute and allocate responsibilities and liabilities with specificity. Substantive and procedural rules that require such specific allocation will defeat the plaintiff’ s claim. The Study Group therefore recommends that the states review and, where appropriate~ revise their substantive and

............................. procedural-~ ru!e s-~ so-~ as-~-to ~held--~ cent~r-i damage Jointly and severally liable,~ under the theory of concert of action or other approaches that place the burden of allocating sep~arate contributions to the injury ~mong a number of defendants~ once there has been proof that a defendant has contributed to the risk or to the injury. Ho.~ever, -there-should be a~"d’e’--~!ni~is exception--the so-called "one drum defense" to provide the necessary element of fairness to Joint and several liability. The Study Group also recommends that states examine alternative approaches to apport!onment~ such as the "channelling" approach which channels responsibility to a designated party; this approach is now in effect under t.~e ~Prlce-Anderson Act and in third party nuclear liability in western ~urope. The Study Group also recommends that the substantive law relating to a landowner’s obligation be clarified so that a former owner may not relieve himself of the liability for injuries caused by hazardous Waste nuisances or dangerous conditions on his land by selling the property~ and so that

243

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a new owner who, at the time of acquisition, knew or had reason to know of the dangerous condition may not relieve himself of liability for the maintenance of the nuisance or hazard by asserting the responsibility of the former owner for its creation. Liability for damages for personal injury resulting from exposure to hazardous substances or wastes should not extend to the owner who shows that such substances or wastes were deposited on his land without his knowledge or consent. The Study Group recognizes~ of course, that the owner’s obligation to abate a..1.nuisance or to remove a condition which threatens the public health is separate from the liability for damages for personal injury. To ease procedural problems affecting the apportionment of responsibility for an injury, the Study Group recommends that the States adopt liberal joinder rules for defendants as well as for plaintiffs. (~) ~r~f ~Ca~s~t’i~ ~ ~eTa~’e’d EVi~t~r~Probl~ms Regardless of the caus~ of action---- whether trespass, nuisance~ megligence~ riparian rights~ strict liability or any other’.--- the establishment of the causal connection between the exposure to hazardous wastes and the injury or disease suffered remains a difficult evidentiary problem because of long latency periods and the variety of exposures from one or more disposal sites or other potential causes of injury or disease. The relationship of particular pollutants to particular diseases is not always fully documented,

244

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and long latency periods (with other intervening exposures a distinct likelihood) for cancer~ neurological and other injuries, cause additional problems. Mutagenic and teratogenic consequences will not show until the next generatiom and may give rise to special problems. A number of evidentiary presumptions have been recommended by the Study Group to operate in the "Tier One"

Group expresses the view that the presumptions in plenary tort actions in Tier Two be left to the development of the law in the several states. (e) Strict Liability The Study Group recommends that the several states develop and enhance causes of action that apply strict liability to the generation, transportation and disposal of hazardous wastes. Formulations of strict liability that balance the hazard of the activity against its utility and its appropriateness to the locale import considerations of negligence that entail significant barriers to the recovery of damages for injuries from exposure to hazardous wastes. To remove these barriers, the application of a theory of strict liability is needed that focuses on the nature of the hazardous waste activity itself, and on the magnitude of the risk.

245

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DiSC~ssion (a) Statutes of Limitation The Study Group agreed not only that the discovery rule should be applicable~ but also in the view that a formulatiom of the discovery rule be applied that provides that an action accrues when the plaintiff knows~ or should know~ of the injury or illness, and also of its cause. (b) Parties Plaintiff The Study Group agreed that the procedural devices to allow plaintiffs to join forces in proving highly technical and complex evidentiary points are desirable~ both to save unnecessary expenses, but also toavoid wasteful duplication of effort in the repetitive presentation of items of technical and scientific evidence. In the view of the majority of the Study group~ this could best be accomplished by liberal joinder rules. The majority of the Group expressed the view that the use of class actions for mass torts is not appropriate, and knowledge of the action might be boumd by its outcome, and im Part because of highly individual factors affecting persQnal injuries. A smaller number of members of the Study Group were of the ~pinion that class action approaches could be usefully adapted to mass tort actions.98 (c) Parties Defendant, Apportionment of Liability The Study Group agreed that joint and several liability was a useful and necessary rule to allow recovery by a plaintiff who had a valid claim, but who could not pinpoint the

246

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precise contribution to his injury by each of several defendants. Joint and several liability and the adoption of an e~panded approach to concert of action would allow the allocation of liabilities among a group of defendants by the defendants themselves. To avoid the situation of casting the entire liability on the defendant with a deep pocket but minimal responsibility, the adoption of the so-called "one-

...................... d~um_~defenseJ!.isr.ecommended ............The_~S~dy_Gr_o~up_r~e_~i~ewed~th~e ........................... .recent theories of market share liability and enterprise liaUi...

bility, but concluded that "market share" was probably inappropriate in the hazardous substance or waste situation, because it would be too difficult to divide and ascertain the shares of substances from different sources~ unlike the situation of the market for a particular drug (DES) where the theory has been applied in the past. The"enterprise" approach, which would cast liability on the industry as a whole, is as yet too novel and untried to be recommended.99 The Study Group was made aware of serious problems of the insurance industry when strict liability is imposed on numerous farms at the same time for the same injury, especially when it may be difficult to link the cause of injury to any particular policyholder, time period or industrial activity. The Group considered the concept of "channelling", namely the possibility of reforming apportionment rules to provide that a single, identifiable hazardous waste handler would be held responsible for each type of waste accident.I00

247

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The Convention on Third Party Liability in the Field of Nuclear Energy (Paris Convention), signed July 29, 1960~ has operated the channelling concept at an international level successfully for almost a quarter of a century. This system, involving (i) strict but exclusive liability~ (2) limitation of liability~ (3) compulsory financial security and (4) a government-financed excess liability fund is worthy of serious consideration.I01 This system is analogous but not identical to the Price-Anderson scheme. Commentators have been suggesting channelling approaches in connection with other high-risk ~ctivities. If such an apportionment rule is suitable for use in the regulatory and financial responsibility system developing under RCRA, it may result in a higher percentage or premiums (or "loss dollars") going to injured persons.

102

The Recommendation largely accepts existing common law approaches to the problem of liabilities of successive landowners, and suggests that liberal joinder of defendants may prove as useful as liberal joinder of plaintiffs. (d) Rejection of Tier One Presumptions; Use of Toxic Substance Documents The Study Group had extended discussions on the question of the applicability of the "Tier One" presumptions on "Tier Two"° Since the compensation remedy is to be a speedy remedy to provide limited compensation to victims, the generous use of such presumptions to advance the victims’ claims and

248

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to reduce the transaction costs of managing numerous claims is warranted~ particularly because it is anticipated that the bulk of claimants will rely on the Tier One compensation system. There is an advantage in maintaining ease of proof in the compensation system, because it is likely that with increasing claim experience~ its costs will be more readily calculable and predictable than the Tier Two tort remedy with

very large verdicts. Some members of the Study Group expressed the belief that to extend the rebuttable presumptio~ to the plenary tort remedy would encourage greater reliance on that remedy, at substantial additional cost. Some members also believed that it was appropriate in what are likely to be very substantial tort actions for the plaintiff to meet the full burden of proof including the necessary scientific and medical evidence necessary to establish causation. On the other ~hand, the point of view was also expressed that the Tier One presumptions would not be permissible in most states im the trial of an action for persgnal injuries, so that a Study Group recommendation on that issue would have relatively little weight. However, some members feared that sooner or later, the common law would follow the statute so that the presumptions applicable to the compensation remedy would u!timately~be applied in tort actions as well. It was also

249

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said that if the presumptions were appropriate¯ -- because of their validity -- in the compensation proceedings~ it would not be proper to attempt to bar their use where similarly appropriate in personal injury action in the courts.

103

The Study Group concluded that the Tier One rebuttable presumptions were not appropriate for use on Tier Two. However~ using common law evidentiary approaches~ courts might be free to consider the "Toxic Substance Documents" in the manner in which treatises and other authoritative works are used. Some members of the Study Group were concerned that Toxic Substance Documents might be used to establish a required minimum standard of proof. The Study Group was in general agreement in its discussion that such an implication was not intended. (e) Strict Liability The Study Group agreed that hazardous waste activities" may be characterized as activities which entail serious risks, even if carried out with reasonable care. A person who conducts such an activity should be held strictly liable for the consequences. It has been noted that formulations of strict liability that emphasize the locale of such activities, or that balance its hazard and its utility end up by implicitly applying a negligence standard which creates a significant barrier to recovery. Although there was considerable division on the

250

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issue~ the majority of the Study Group recommended that the courts apply a theory of strict liability that would focus on the. hazardous nature of the-activity itself~ particularly in view of the potentially farreaching and long-lasting 104 impact of hazardous wastes on health amd the environment.

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Appendix B

TO:

Superfund §3Ol(e) Study Group

FROM:

Frank P. Grad, Reporter

RE:

Report on Statutes of Limitation applicable to actions arising out of hazardous waste disposal.

DATE:

September ll, 1981.

Contents Introduction

1

Summary and Conclusions State by State Analysis (!) Jurisdictions which have adopted the discovery rule by statute (2) Jurisdictions which have adopted the discovery rule by Judicial Interpretation (3)

Jurisdictions which reject the discovery rule

"(4)

41

Jurisdictions which have not clearly committed themselves to either view

Appendix.

59

13

-A22-

Introduction The injuries caused by hazardous waste disposal are often latent, or delayed in manifesting themselves. If the injuries are ascertainable ag~er the statute of limitations has run, the action may be barred° The policy" of repose expressed in th~ statute of limitations may be out¯ ;eighed by the policy of affording the plaintiff a just opportunity to. vindicate his rights, 51 Am. Jur. 2d Limitations. of Actions §§17, 18, .............................. in_ordez_to_~zeach_a_~jnst_resnlt,_th i~6_(1971)] ....... tions have adopted_the "discovery rule", which holds that the cause of action does not accrue until the injury or cause of injury is discovered, or through the exercise of reasonable diligence should have been discovered. A number of formulations of the discovery rule are found. Although there has not been any specific opportunity to apply the rule in actions for latent injuries caused by hazardous waste disposal, .actions for latent injuries ~ould not be time-barred in the jurisdictions which apply the discovery rule.

14

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and Conclusions

~.Znether a hause of action is time-barred depends on the applicable ~a~uue of limitations and on t~e precise tin~ when the statute begins to run. Commonly, the statute begins to run whenEthe cause of action "accrues", and with few exceptions (See, e.g., Idaho) that is the point of c0~mencement provided in the state statutes. - :~ The earl~, traditional view (now the minority view) ~as that the action accrued at the time of the defendant’s tortious act or omission. We m~y surmise th~ the rule was quite adequate in earlier times when the defendant’s tortious act or omission and the plaintiff’s injury were simultaneous. With more latent injuries in product liability, medical malpractice, radiation injuries, toxi~ torts and other injuries that result from more sophisticated technologies, as demonstrated by the cases cited, the traditional-rule caused great hardship to~ plaintiffs who found that their claims were time-barred before they had first discovered their injuries. In order to effectuate the policy of repose of actions, the traditional rule also held that plaintiff’s knowledge of the wrong ~as immateria! to-the running of t~he statute. In consequence, where latent injuries ~ere not--and could not--be discovered until the statute had run, the bar of the sta~ute was nearly absolute. ~qot___~e, Developments in the Law:

Statutes of Limitations, 63 Herr. L. Rev. 1176, 1203-1205 (1950). The traditional rule no~ holds a distinct minority position. It has been enacted as law in two jurisdictions, end it has been judicially adopted in six. (See Appendix).

15

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One effort to avoid the harsh resultof the traditional rule was

the development of the concept of the continuing tort. ~~ere there has been a continuing tortious condition, or a s~ries of tortious acts’or omissions, the statute of limitations will begin to run from the time when the plaintiff was last exposed ~o the condition or acts which caused his injury. The doctrine of the continuing tcrt has only limited applicability, however, because the defendant’s to~ious conduct, .or the

plaintiff’s exposure for the doctrine to apply. The majority of jurisdictions have abandoned the traditional approach in favor of the "discovery rule". Under the discovery rule, the cause of action does not accrue when the defendant commits a tortious act, but when the plaintiff kn~ws-~or reasonably shouldknow-that he has suffered an i£jury. Eight.jurisdictions follow the traditional rule, rejecting the discovery rule, two (Idaho and Virginia) by statute, and six (Alabama, New York, Ohio, South Dakota, Virgin Islands, Wisconsin) by judicial determination. There are a number of formulations of the discovery rule, and these form~ations are set forth at length in the State-by-~ate analysiS. One such formulation starts the running of the statute when the plaintiff’s injuries are capable of ascertainment. Although apparently a flexible rule, there may be problems in that %he court must decide whether in injury is capable of ascertainment when symptoms first appear, or when they may be diagnosed unequivocably as demonstrating a particular

disease or injury. This formulation has been adopted in five jurisdic-

16"’

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tions. (Arkansas, Indiana, Kansas, ~.~aine, ~brth Carolina). Another form of the discovery rule holds that the cause of ~ction accrues when the plaintiff actually discovers or knows that he has a particu~r disease or injury. This form of the rule has been adopted in two jurisdictions (Distric~ of ColuWDia,.l~ebraska). Another formulation of the discovery rule provides that the cause of action accrues when the plaintiff knows, or should know, in the exercise Qf reasonable judgment, that lle has suffered a disease or in~u_~. Four states have adopted this formulation. (ConnectiCut, Delaware, Georgia, Tennessee.) Note that Connecticut imposes a limit of three years a~er the ae~ or omission that caused the injury. A similar form of the rule starts the statute running when the plazn~ discovers, or should reasonably have discovered, not only the fact of injury or disease, but also its cause. Some thirteen jurisdictions have accepted this formulation. (California, Illino~s, Ionia, Kentucky, I~ryland, Massachusetts, ~nnesota, ~ssouri, I~ew Hampshire, Oklahoma, Oregon, Vermont, Nashin~on). Finally, an even more detailed requirement for ~he accrual of the cause of action and the running of the statute is the time when the plaintiff realizes, or should realize, %hat he has suffered an injury or disease and that he has a cause of action. This formulation is encountered in thirteen-jurisdictions (Arizona, Colorado, Florida, Hawaii, ~Louisiana, Michigan, Montana, New Jersey, Puerto Rico, So~ h Carolina, Texas, ~’;est Virginia, ~oming).

-A26-

B-5 ~~~ile these different formulations of the discovery rule ought to make "a difference in different ~ituations, there is no very clea~ evidence that they do at present, or that they will make a lot of difference in cases involving injuries from hazardous wastes. It is p~obably fair to say that the discovery rule--in any m~ its forms--indicates a willingness to relate accrual of the cause of act~bn to the time of the appearan6e of injury, rather thin to the time of the tortious act or

""

omission ~hich initially caused~t. ~at of 53 jurisdictions,

37

.. ’

have adopted the discovery rule, eight

have rejected it, and eight (Alaska, ~ssissippi, Nevada, New Mexico, ~oz~h Dakota, Pennsylvania, Rhode Island, Utah) have not decided the

’questi0i, %hough~.they"~aybe ~endingi~. ~he directi0~0’f ~he"ruig.’While the number of states which reject the discovery rule is small, it includes such industria! states as New York and Ohio. It is clear that the s~a~u~es of limitation will continue to present an insurmountable b~rrier to many plaintiffs with latent injuries, in spite of the national trend toward the more liberal rule.

18

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B-6

State-by-State Anal~,sis

The detailed analysis of the statutes of limitation and their interpretation in 53 jurisdictions (50 states,, the District of Czlumbia, Virgin islands and Puerto Rico.) which follows is divided int~ fe, ur subparts. The first cover jurisdictions that have ad~pted, the disc.~very rule by statute, and the second-covers jurisdictions that have achieved. a similar result by case law interpretation. Alt~gether, 37 states have adopted some formulation of the discovery rule. The third part czvers jurisdictions which, by statute or interpretation, have rejected ’the discovery rule, relying on what used to be the traditional view that the cause of action accrues at the time of the occurrence or exposure that ga.ve rise to the injury. There are 8 jurisdictions which hold to the view that the majority of states have abandoned. A small number of jurisdictions-A eight

--have not clearly

committed themselves to either view., though some seem to follow the trend in the direction of the acceptance of the d~scovery rule, as has been noted, where appropriste,~ in the discussion.

(I)

Jurisdictions ~’~ich Have Adopted the Discovery Rule by Statute

Connecticut Connecticut has enacted the foll~ing formulation ~f the disc-very rule for persona! injury actions. Conn. Gen. Stat. Ann. §52-58~ (West

-A28-

B-7

provides that [ ] action to recover damages for injury to person.. D~ negligence, or by reckless or wanton misconduct ...shall be ¯ caused "’° brought bht within one year from the date when the injury is first sustained or discovered, or in the exercise of reasonable care should have been discovered .... " However, §52-58}$ also provides that "no such action may be bro~qht more than three years from ~he date of the act or omission complained of. ." Connecticut had previously barred personal’.i~u~r suits unless brought within one year of the act or omission complained of. Conno Gen. Stat. §832h (~959). The present law is not, however, completely favorable to victims of toxic waste iuduced personal injuries. In many such cases, the plaintiff will not have sustained, nor would the prudent person have discovered his injury withinlthree years after the culpable act. As a consequence, unless such a plaintiff is able to take advantage of the continuing tort doctrine, he will find his suit time b~rred. See Coffin v. Flagg.lla, 5 Conn. Cir. Cto 85, 90 (Conno Cir. 1962), 2~2 A.2d 79~, 795 (196~)(non-latent personal injuries caused by traffic accident). In weighing the hardships, the Connectic6t legislature has ~pparently determine@ that it is important to protect defendants against stale claims. Se__~eCollins, Two Acts.ConcerninG the Statute of Limitations,

32 Conn. B.J. 19h, 195(1958). Kansas " In Kansas, actions "for injury to the rights of another, not arising on contract" must be brought within two years after the cause of action accrues. Ken. S~a~. Ann. §60-513(a)(I$)(1976). The law further provides that the cause of action:

2O

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"shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury or, ~f the fact of injury is not reasonably ascertainable until sometime after the initial act, then the limitations shall not ccmmence until the fact Of injury becomes reasohably ascertain-

The Kansas statute avoids depri:~ing the plaintiff of ~ remedy before he learns that he was entitled to one. See HecMt .v. First Nationai Bank and Trust Co., 208 Ken. 8h, h90 P.2d 6~9 (1971)(details history of Kansas’ limitation"law). The statute would not Protect a plaintiff with a particularly slowly developing injuo~, because it provides that "in no event shall the period be e~ended for more than ten years beyond the time of act giviog rise to the cause of action."

Missouri

:

The period of limitation for persona! injury action in Missouri is five years. Mo. Ann. Star. §516.120(h)(Vernon 1952). The action accrues and the statute begins to run when the damage is capable of ascertainment. "[T]he cause of action shall not be deemed to accrue when the wrong i~ done or the t~chnical breach ~f contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and...complete releif obtained." Id__., §516.100.

21

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The rationale behind the statute is to-~uspend the running of the statute of limitations until a person has notice of his cause of .acti.~n particularly in cases of latent ihjuries or delayed manifestati.~n of the inju~. KZ.ug v. ~erling D~ Inc., 416 S.W.2d 143, 150 (~5. 1967). Misscuri co~ts have interpreted the discovery statute to mean the discovery cf the cause of the inj~y. In a produm~% liability action, the cause of action scc~ed when the plaintiff was aware of the cause of the eye condition, I~.

The statute was also interpreted to

............................. mean--~ scove~y-o~.-the.--inju.~ ...... -I~n ~s--perma-ne nt-nu~s anc e---s c~-io nv-the-s~atute co~mencefl ~hen the inj~ ~as ascertained. Person v. Cit~ ~f inde.gend~n~

~ S~W.2~ ~75 (Mo. ~., ~938). An exception to the discove~ ~le is made in occupational disease cases where the statute begins to ~n at ~he momen~ ~he employee quit

~ork, or the condition is removed. Farrar v. St. Louis-San Francisco

C~., 361 ~,~. ~08, 235 S.W.2d 391 (1950). ~e exception is not applicable to a cause of action for latent inj~ies caused by toxic, waste and ~herefore the statute of limitations will begin to run upon discove~~.

North Carolina: The perigd of limitations in North Carolina is three years. N.C. Gen. Stat. §1-52(5)(1969). In 1979, the legislature amended the statute to include the discovery rule, limiting the period tc ten years fr-m the last act or omission. "[f]or personal injury...the cause of action... ~all not accrue until bodily harm to the claimant...becrmes apparent or ought reasonably to have become apparent to the claimant, whichever event

22

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B-lO

first occurs. Provided that no cause of action shall accrue, more than i0 }’ears f.*om the last act or omission of the defendant giving r~se to the cause of action." Id., §l-52(16)(Supp. 1979). The statute of limitations will not bar a private cause of set!on arising from latent persona! injuries.

Puerto Rico:

~

The discovery provision of_Puerto Rico is written into the sNme statute prescribing, a one year!imitation period. The cause of action accrues "from the time the aggrieved party had know!edge the. roof." P.R. Laws Ann. tit. 31, =2~8 §~ 70~

~2)(!968).

South Carolina : The limitation period for actions on personal injury is six years. S.C. Code §15-3-530(5)(1976). In 1977, the statute was amended to include the discovery rule: "all actions initiated under Item 5 of §lS-3-530...shall be commenced within six years after the person knew or by the exercise of reasonable diligence should have known that he had a cause of action." I_~d. §15-3-535 (Supp. 1980). The discovery statute is applicable to causes of action for latent

injury. The Supreme Court of South Carolina has avoided mere mechanical applications of the statute of limitations. Gattis v. Chsvez,

413 F. Supp. 33 (D.S.C. 1976). The discovery principle was applied in claims for professional negligence, Mills v. Kill!an, 273 S.C. 6~, 254 S.~.2d 556 (1979) and m~dical malpractice, Gattis v. Chavez,

413 F, Supp. 33 and in the earlier cases of property damage, K.in~ v. U.S~_.

23

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