MONTGOMERY, Ala. - (Mealey's) The Alabama Supreme Court issued an order March 2 denying a defense application for rehearing of its June 30 opinion that permits a welder to seek damages for exposure to welding fumes within six years of filing suit under the theory of wantonness (Charles E. Jerkins v. Lincoln Electric Co., et al., No. 1091533, Ala. Sup.).
(Opinion. Document #70-120313-002Z.)
Charles E. Jerkins is the plaintiff chosen for the ninth bellwether trial in the multidistrict litigation welding products liability litigation consolidated in the U.S. District Court for the Northern District of Ohio (In re: Welding Fume Products Liability Litigation [Charles E. Jerkins, No. 04-18810], MDL 1535, No. 03-17000, N.D. Ohio). Jerkins alleges claims against Arcos Industries, The ESAB Group Inc., Hobart Brothers Co., Lincoln Electric Co., Sandvik Inc. and Socra.
Judge Kathleen McDonald O'Malley continued the Jerkins trial to permit the Alabama Supreme Court to consider three certified questions on the Alabama statute of limitations. The trial was on the July 2010 calendar in the Northern District of Ohio.
The Supreme Court limited a welder seeking damages for exposure to welding fumes to recovery during the statute of limitations period and placed on the welder the burden of distinguishing the alleged injuries within the limitations period from alleged injuries outside the limitations period.
The defendants asked the Supreme Court to reconsider allowing welders to pursue wantonness claims within a six-year limitations period prior to filing their claims.
Judge O'Malley issued a stay in July 2011 to allow the Supreme Court to consider the defense application for rehearing.
The Supreme Court denied the application for rehearing without opinion but with two concurrences.
Justice Glen Murdock filed a concurrence to offer additional comments on the application of the limitations period and on the effect of the limitations period ruling on the wantonness claim raised by Jerkins.
The American Law Reports (11 A.L.R.2d 277, 289 ) "speaks of a 'single wrong,' as well as a single limitation period - 'the limitation period' - that commences to run only at the single point in time when that wrong ceases," according to Justice Murdock. "Consistent with this passage, I had until this case been under the impression that Alabama's 'continuing tort' theory of recovery for long-term exposure to toxic substances, when applied in tandem with the last exposure rule recognized in Garrett v. Raytheon Co., 368 So.2d 516 (Ala. 1979), meant that, so long as a claim was filed within the period of limitations following the plaintiff's last exposure to the hazardous substance, the plaintiff could recover all damages referable to the malady resulting from the exposure to the hazardous substance at any time during the plaintiff's term of employment."
The application of Garrett in the original Jerkins opinion appears to conflict with the American Law Reports passage, according to Justice Murdock.
"The passage quoted from American Law Reports embraces a 'single wrong' theory, and it does so based on the predicate that the plaintiff's injury may 'develop' after exposure at some unknown and unknowable time," according to Justice Murdock. "The analysis employed in Garrett, on the other hand contemplates that the plaintiff actually suffers a physical injury when he or she suffers an exposure, even if that injury has yet to 'develop' into something that is observable by the injured party."
"Moreover, my consideration of the present case has brought to my attention Alabama cases governing the last-exposure rule of Garrett, which as noted by the main opinion on original submission, presaged our answer to the certified question before us, i.e., that damages are limited to those resulting from injuries occurring within the limitations period."
"It is as a consequence of such authority that I concurred in the main opinion's response to the first certified question on original submission."
Justice Murdock then turned to the effect of this interpretation of the statute of limitations on the wantonness claim. The defendants argue in the application for rehearing that Section 95 of the Alabama Constitution 1901 prohibits revival of the wantonness claim. As applied in Cazales v. Johns-Manville Sales Corp. (435 So.2d 55 [Ala. 1983]), Section 95 applies to the Legislature, according to Justice Murdock.
"I am reluctant to suggest merit in the defendants' argument that the prohibition in § 95, Ala. Const. 1901, against 'reviving' an 'otherwise time-barred claim' placed some limit on the Court's holding in McKenzie v. Killian, 887 So.2d 861 (Ala. 2004), that a six-year statute of limitations period was applicable to wantonness claims," according to Justice Murdock. "Section 95 states that 'the legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this state.' (Emphasis added.) "I see nothing in this language that requires us to apply § 95 to judicial decisions," according to Justice Murdock. "To the contrary, doing so would be at odds with the strong bias in favor of retroactive application of judicial decisions, a bias that is a function of the so-called 'declaratory theory' of appellate review."
"It is correct, as the welding-rod manufacturers argue on rehearing, that McKenzie was 'wrongly decided.' Nonetheless, it was decided. It thereby became the 'law of the land,'" according to Justice Murdock.
Justice Greg Shaw wrote the second concurrence. He acknowledged the concerns raised by the defendants and the Alabama Defense Lawyers Association about the effect of McKenzie on the revival of the wantonness claim. "[T]he specific concern of the welding-rod manufacturers seems to be their perception that there is a constitutional impediment to allowing Jerkins to recover damages attributable to injuries occurring during the six-year period preceding the filing of his action," according to Justice Shaw.
The reasoning of Cazalas was not challenged in the original appeal or in the application for rehearing, according to Justice Shaw. "This Court did not address this issue on original submission; any reexamination of Cazalas must await a specific challenge to the logic of its holding."
"In sum, the concerns expressed on rehearing, although in my view worthy of serious consideration, are outside the scope of the specific questions certified to this Court and thus must await resolution another day," according to Justice Shaw.
John W. "Don" Barrett of Barrett Law Office in Lexington, Miss.; Scott O. Nelson of Maples & Lomax in Pascagoula, Miss.; Brandon H. Steffey of Williams Kherkher Hart Boundas in Houston; David W. Shelton of David Shelton Law Firm in Oxford, Miss.; and Rick G. Davis of Rhoden, Lacy & Colbert Law in Flowood, Miss., represent Jerkins.
Kristine Gerhard Baker, Steven W. Quattlebaum and John E. Tull of Quattlebaum, Grooms, Tull & Burrow in Little Rock, Ark., and John H. Beisner, Stephen J. Harburg and Jessica D. Miller of Skadden, Arps, Slate, Meagher & Flom in Washington, D.C., represent Lincoln Electric, ESAB, Hobart Brothers and Sandvik.
Donald C. Adams Jr., Laura I. Hillerich, Michael P. Foley and Arthur E. Phelps Jr. of Rendigs, Fry, Kiely & Dennis in Cincinnati represent Arcos. Kevin C. Alexandersen and Stephen M. Baudry of Gallagher Sharp in Cleveland represent Socra.
Beisner, Harburg and Miller are defense liaison counsel. John R. Climaco of Climaco, Wilcox, Peca, Tarantino & Garofoli in Cleveland is liaison counsel for the plaintiffs.
The Plaintiffs' Executive Committee comprises Drew Ranier of Ranier, Gayle & Elliot in Lake Charles, La.; Joseph Rice of Motley Rice in Mount Pleasant, S.C.; Walter Umphrey of Provost Umphrey in Beaumont, Texas; Daniel Becnel Jr. of Reserve, La.; J. Michael Papantonio of Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor in Pensacola, Fla.; John E. Williams Jr. of Williams Bailey in Boston; and Richard Heimann of Lieff, Cabraser, Heimann & Bernstein in San Francisco.
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