A Georgia appeals court has found that strict liability claims were filed too late against a Georgia-based supplier for Johnson & Johnson in a suit alleging asbestos in the baby powder it blended and packaged for J&J caused a woman’s ovarian cancer.
The panel reversed a trial court order in a suit brought by Shirley and Richard Eubanks that found that the statute of repose did not affect claims made under the state’s Asbestos Claims and Silica Claims Act, ruling that the Act’s language only refers to statutes of limitations, not to repose, and thus the general tort statute of repose still applies.
While the act states that the limitations period on an asbestos claim doesn’t start until the person exposed obtains evidence of a physical impairment “notwithstanding any other provision of law,” the panel found that clause only applies to statutes of limitations, not to the statute of repose, which runs from the time the product is first bought or used.
The statute of repose is in place to limit the tolling of strict liability claims, while the language of the asbestos act still works to extend the period of time for those affected to file lawsuits.
The Eubankses brought claims against several Johnson & Johnson companies and affiliates, including Royston and Arizona-based Cyprus Amax Minerals Co., which was dropped as a defendant in September. Royston blended, tested, bottled and packaged Johnson & Johnson’s baby powder at its facility in Royston, Georgia, from August 2005 through 2019 and Eubanks alleges asbestos in that powder caused her ovarian cancer.
While the trial court had held that Eubanks’s claims were tolled until she discovered she had cancer, Royston argued in April that the 10-year period for her to file suit began when she started to use the product in 1963 under the state’s statute of repose. The other defendants in the suit are not parties to this appeal.
The panel agreed with Royston, saying the language of the provisions in the general tort statute of repose and the asbestos act does not conflict, as the statute of repose refers to when an action can be “commenced” regardless of whether a claim has already accrued, while the asbestos act requires evidence of an injury, just as a statute of limitations does.