Massachusetts’ legislature is considering a historic change to the state’s construction tort statute of repose that would end the mandatory six-year wait for certain asbestos claims. This reform is intended to grant legal relief to families who have suffered asbestos-induced diseases that appear decades after exposure.
Proposed Changes and Legal Opinions
The revision comes after the Massachusetts Supreme Judicial Court ruled in 2019 to retain the current law saying that the decision was unfortunate but that any change would have to be passed by the Legislature. It was a ruling from the estate of Wayne Oliver, an industrial worker who had died of mesothelioma in 2016, decades after his first asbestos exposure.
State Rep. and tort lawyer Jeffrey Roy, a bill sponsor, pointed out that the existing law leaves companies vulnerable to liability before asbestos-related illness ever arises.
The bill reads “Nothing in this section shall apply to any tort actions for damages due to latent diseases caused by exposure to toxic substances including, but not limited to, asbestos.” It would go retroactive to pending cases and fill a gap in victims’ protection.
Opponents such as Kyle Bjornlund of Cetrulo LLP say the amendment would likely be challenged on constitutional grounds for revoked defendants’ ability to assert a defense available under the current statute.
He emphasized that the statute of repose is designed to protect designers and installers from liability for issues that could arise long after their work is completed, potentially due to poor maintenance or subsequent alterations to the installation.
The law has also been called into question for being especially cruel to plaintiffs who have been injured by cancers such as mesothelioma, which result from asbestos exposure decades ago but manifest only later in life. According to Barry Castleman, an asbestos disease specialist, even though plaintiffs may still pursue several defendants, contractors, and installers who had known about the dangers of asbestos were wrongly shielded by the statute as it stands.
During a legislative hearing, Rep. Roy said Massachusetts needs to catch up with other states that have opted for plaintiff-friendly statutes of repose for asbestos or have rules of discovery that compensate for the delayed development of concomitant diseases.
If approved, the amendment would not only open cases barred by the law, it would also end unjust practices in the future by making it impossible for corporations to distribute potentially harmful products without a license.
