Mestothelioma Suit Limits Leave Victims Without Protections | Shapiro, Washburn & Sharp

Dorothy Kuykendall, 76, has cancer. She has cancer because, as a factory worker during the 1970s, she often handled asbestos without adequate safeguards. She is one of the tens of thousands of Americans.

Occupational exposures to asbestos cause a wide array of lung diseases, ranging from the tuberculosis-like asbestosis in which the fine mineral fibers collect in the airways and cut and scar the lungs until they can no longer expand to the deadly cancer mesothelioma. Asbestos certainly kills. But not quickly. And this is where Kuykendall’s story diverges and becomes potentially more tragic than those of her fellow asbestos victims.

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Kuykendall worked and still lives in Indiana (IN), where state law requires workers hurt or made sick on the job to file claims for compensation within 10 years of when the injury occurred or the disease began. Asbestos-related lung disease can take as long as 30 years to produce symptoms. This is what happened to Kuykendall, whose cancer was not diagnosed until 2008. She stopped handling asbestos in 1976. The Hoosier State’s statute of limitations on torts prevents Kuykendall from filing a claim against her former employer, laboratory equipment manufacturer Glas-Col Apparatus Co.

Most states besides Indiana start the statute of limitations on workplace injury claims from when the extent of the harm becomes apparent–in legal terms, “from discovery.” If Kuykendall lived in North Carolina (NC), Virginia (VA) or West Virginia (WV) she may have had appropriate time to file a lawsuit to get money to cover her medical bills and provide for her husband’s future.

Somewhat to the credit of the Indiana Legislature, state lawmakers are considering bringing their state’s tort laws back into line with those of the rest of the country.

My colleagues and I know from decades of experience representing victims of asbestos exposure how debilitating conditions such as asbestosis and mesotheliioma can be. We also feel strongly that no one harmed by asbestos should go uncompensated. Many of the cases we have taken have come under the terms of the Federal Employers’ Liability Act, which provides protections for railroad workers injured or sickened on the job. Generally, workers have three years from discovery to file a claim under FELA.