Terry McCann was exposed to asbestos in Oklahoma in 1957, but wasn’t diagnosed with mesothelioma until 2005 in California. In which state is he or his family entitled to sue for damages?
That was the question for the California Supreme Court during oral arguments earlier today, and it wasn’t clear which way the justices would vote.
The problem for McCann is that an Oklahoma statute prohibits suits for design deficiencies if brought more than 10 years after the completion of the project in which a hazardous substance was used. But the one-year statute of limitations for claims in California starts running only at the time a disease is diagnosed.
Big difference, and California law clearly works better for McCann. But there’s still debate about whether McCann’s injury occurred at the time of exposure or the time of diagnosis.
Mesothelioma madness in California, and input from the divine (?), after the jump.
McCann’s appellate lawyer, Paul Cook, a partner with El Segundo’s Waters & Kraus, argued that illnesses, such as mesothelioma, manifest over years, if not decades.
“Not only was Terry McCann not aware he was sick in Oklahoma, he wasn’t sick,” he argued. “Terry McCann didn’t have mesothelioma until years later.”
Justices Joyce Kennard and Kathryn Mickle Werdegar gave McCann and Cook some hope by pointing to Code of Civil Procedure 361. While that provision bars claims in California if the other state’s laws bar them for a lapse of time, it also offers an exception for citizens of California who have “held the cause of action from the time it accrued.”
Now for something a little lighter.
During the preceding case, arguments came to a short halt when several lights in the courtroom suddenly went dark. Turns out someone had accidentally leaned on a light switch.
But Corrigan still found time to pop out a one-liner. “Someone,” she told the lawyer at the lectern, “didn’t like that argument.”
— Mike McKee