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News & trends
April 2008 | Volume 44, Issue 4

Alabama Supreme Court ends toxic-tort catch-22

Rebecca Porter, Associate Editor

For almost 30 years, would-be toxic-tort plaintiffs in Alabama had to file suit within two years of exposure, even though they might not exhibit medical symptoms until years later. The Alabama Supreme Court set this rule with its 1979 decision Garrett v. Raytheon. (368 So. 2d 516 (Ala. 1979).) Because another state rule prevents plaintiffs from suing until they get sick, Alabama toxic-exposure victims were caught in a catch-22 in which the time was never right to sue for their injuries.

In January, the state high court overruled its 1979 decision and allowed plaintiffs two years from the date an injury manifests to file suit. (Griffin v. Unocal Corp., 2008 WL 204445 (Ala. Jan. 25, 2008).)

Attorney Robert Palmer, who represents plaintiff Brenda Griffin, spent years trying to fix the conundrum. Another client, Jack Cline, died of acute myelogenous leukemia (AML) last year, nine days after the Alabama Supreme Court—adhering to Garrett—denied his right to sue his former employers for benzene exposure. (Cline v. Ashland, Inc., 970 So. 2d 755 (Ala. 2007).)

Cline was exposed to benzene at his factory job for a company that made railroad wheels in 1999, but he didn’t develop AML until years later. He filed suit within two years of his diagnosis, but not within two years of his exposure to benzene.

While working on Cline’s case, Palmer realized he had to fix the law in Alabama, which was a “blatant denial of due process,” he said. He initiated a four-part plan that included educating the legal community and the public and encouraging legislative and judicial action.

He wrote articles, dogged the press, and spoke to lawyer groups to meet the first goal. He also founded a nonprofit group called the Alabama Legal Reform Foundation to garner support for legislative reform. A so-called Jack Cline bill, which would “create a discovery accrual rule in all toxic-tort cases that retroactively applies to everyone who never had the opportunity to file a lawsuit,” was introduced in the state House of Representatives in 2005 but failed to pass.

Meanwhile, Palmer pursued the Griffin case. Brenda Griffin’s husband, David, died after contracting AML from exposure to benzene and other chemicals while working in a tire-manufacturing plant. Brenda Griffin filed a wrongful death suit; the defendants sought to have the case dismissed because the suit wasn’t filed within two years of David Griffin’s exposure.

The U.S. Supreme Court had declined to hear Cline, but Griffin, which Palmer had filed in both Alabama and Georgia with two different sets of defendants, ended up on appeal in both states.

“It was an unusual thing to do, but I did it for a reason,” he said. It would depend on how the courts ruled, but with “two different rulings in two different states, that would make the issue more acceptable to the U.S. Supreme Court.”

In Alabama, the supreme court changed its mind. In reversing Garrett, the court wrote, “the dispositive issue in this case is whether ‘the date of last exposure rule [is] still the law in Alabama.’ Stated simply, it is not.” The court adopted verbatim the reasoning of Justice Robert Harwood’s dissent in the 5-4 Cline decision.

The court noted particularly that Harwood had stated, “A cause of action accrues only when there has occurred a manifest, present injury” and agreed with Harwood’s suggestion that the new accrual rule for toxic-substance-exposure cases be applied to future cases, not retroactively. “Except in this case,” it wrote. “Griffin, as the prevailing party in bringing about a change in the law, should be rewarded for her efforts.”

At press time, the Jack Cline bill had again been introduced in the Alabama Senate, and Palmer said it is likely that the bill will pass now because Griffin has taken the steam out of the opposition.

“The one thing they will fight is that it’s retroactive,” said Palmer. “But I’m not ready to give up yet on fixing the law completely for everybody.”

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