Appellate Court Revives Toxic Tort Case Based on Discovery Rule; Beaver v. ExxonMobil Corp.

In a lawsuit against ExxonMobil Corp., four individuals claimed injury and death because they were exposed to benzene and other hazardous chemicals when they worked as rubber workers, tire builders and final finish laborers at a tire manufacturing facility.  The cases were brought by the families of these deceased workers for their wrongful deaths and survival claims. In the circuit court, the claims were dismissed on summary judgment being timed-barred. This case was filed in Wisconsin and the plaintiffs appealed to the Wisconsin Court of Appeals.

In the lawsuit that was filed, the four individuals also claimed that they suffered personal injuries and died as a result of their exposure to benzene and benzene-containing materials. 

It was determined by the trial judge that the statute of limitations began to run for all claims at the latest on the decedents’ dates of death and that the complaint, which was filed more than three years (statute of limitations in Wisconsin), after those dates was time-barred because the three years had passed.

The three-year statute of limitations applied for both the wrongful-death claims and the survival claims.

The appellants argued that the statute of limitations for both claims did not begin to run on the date of the decedents’ deaths, but rather that the discovery rule applied to their claims, which would change when the statute of limitations began to run. 

It was argued that the discovery rule did not begin running until the decedents’ injuries and causes of their injuries were discovered or in the exercise of reasonable diligence, should have been discovered.

In a Wisconsin Supreme Court case, it was held that the discovery rule “for all tort actions other than those already governed by a legislatively created discovery rule,” was adopted, meaning that the discovery rule required not only to discover the injury, but also the cause of the injury.

In this case, ExxonMobil argued that the discovery rule did not apply to the wrongful-death and survival actions because the statute is a legislatively created discovery rule that bars the application of the common-law discovery rule to survival claims and that public policies supported the dismissal of the appellants’ wrongful-death claims.

The appellate court, following the Wisconsin Supreme Court decision in Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550 (1983), held that the statute acted as a saving statute and not a statute of limitations.

Because the court concluded that the discovery rule applied to the appellants’ tort claims, it reversed the circuit court’s order of summary judgment. The court said that public policy favors the application of the discovery rule to all tort actions. The court did not decide whether the appellants’ claims were timely filed under the discovery rule, but sent the case back to the trial court for further disposition.

Beaver v. ExxonMobil Corp., No. 2012 AP 542, 2013 WL 1908639 (Wis. App. May 9, 2013). 

Kreisman Law Offices has been handling mass tort claims, toxic tort cases, pharmaceutical product defect cases and nursing home abuse cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Schaumburg, Morton Grove, Calumet City, Chicago (Hyde Park), Vernon Hills, Palos Park, Long Grove, Flossmoor, Des Plaines, Rosemont, Inverness, Tinley Park and Joliet, Ill.

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