Statute of Limitations Inapplicable in This Case

Regular visitors to are aware that the legal issues related to asbestos are highly complex–particularly when the plaintiff is in one state, the defendant is in another, and the cause of action (the event that is grounds for the lawsuit) has taken place in a third state–and that event is years, even decades in the past. Such a situation can easily create a legal Gordian Knot that would have daunted even Alexander the Great–but is de rigeur when it comes to asbestos issues.

This is essentially what retired Los Angeles judge Jon Mayeda faced when he heard a suit filed by California resident Terry McCann against Foster-Wheeler, a factory in New York which designed and manufactured the asbestos-lined boiler that the plaintiff installed at an Oklahoma refinery over fifty years ago. Judge Mayeda granted summary judgment in favor of Foster Wheeler on the basis of Oklahoma state law, which sets a statute of limitations of 10 years for tort liability that arises from “the design of an improvement to real property”–in this case, the installation of the boiler.

The Division 8 Court of Appeals has now re-instated that lawsuit. The appellate judge in the case, Candace Cooper, said that the State of California’s interest in protecting its residents who have been injured to due corporate negligence and defective product design “…outweighs any interest of Oklahoma, particularly since Foster-Wheeler does business worldwide and has no particular ties to Oklahoma.” Essentially, California law allows asbestos victims to file suit within a period of up to a year from the date an asbestos disease is diagnosed, regardless of how much time has elapsed since the last exposure to asbestos–which as regular visitors know, can be decades. Judge Cooper acknowledged that the Oklahoma “statute of repose” protects the construction industry, the potential liability of which “could otherwise extend indefinitely.

However, since Foster-Wheeler is not located in Oklahoma, this statute does not apply. In her opinion, Judge Cooper wrote: “Foster Wheeler’s ‘wholly foreign conduct,’ which did not occur in Oklahoma, resulted in an injury to a California resident, which manifested itself in this state. California’s remedial statute is expressly designed to preserve asbestos claims during the latency of asbestos-related injuries. California’s interest in adjudicating a resident plaintiff’s claim outweighs Oklahoma’s interest in cutting off the liability of a non-resident defendant.”