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43 U. Pitt. L. Rev. 501 (1981-1982)
Statutes of Limitations and the Discovery Rule in Latent Injury Claims: An Exception or the Law

handle is hein.journals/upitt43 and id is 511 raw text is: STATUTES OF LIMITATIONS AND THE DISCOVERY RULE IN LATENT INJURY CLAIMS: AN EXCEPTION OR THE LAW? Except in topsy-turvy land, you can't die before you are conceived, or be divorced before ever you marry, or harvest a crop never planted, or burn down a house never built, or miss a train running on a non-existent rail- road. For substantially similar reasons, it has always heretofore been ac- cepted, as a sort of legal 'axiom', that a statute of limitations does not begin to run against a cause of action before a judicial remedy is available to the plaintiff.1 A tort statute of limitations ordinarily requires an action for per- sonal injuries to be brought within a specified period, usually from one to six years after the cause of action has accrued.2 As long as an injury is discoverable within the prescribed period and its date of inception is ascertainable with some degree of certainty, this limitation is not an unreasonable burden to plaintiffs. The tradi- tional tort claim, such as an action arising from a broken bone, is adequately protected by such a provision since the injury immedi- ately follows a defendant's tortious conduct and damages are easily established. But when a personal injury does not occur immedi- ately, or is not apparent at the time of the tortious conduct, it be- comes difficult to determine when the cause of action should ac- crue.3 Rules defining a cause of action for personal injury have evolved in connection with straight-forward accidental trauma. Hence, their application to cases involving products that are found to have caused disabling or fatal injuries years or even decades later is problematic. Asbestos, a toxic substance involved in many recent products liability cases, is one of a growing number of substances that are being identified as potentially harmful. Other products that result in insidious disease rather than traumatic injury include radiation, coal dust, cotton dust, benzene and other chemical compounds used in industry, and many drugs. These are the so-called silent 1. Dincher v. Marlin Firearms Co., 198 F.2d 821, 823 (2nd Cir. 1952) (Frank, J., dis- senting) (footnotes omitted). 2. See McGovern, The Status of Statutes of Limitations and Statutes of Repose in Product Liability Actions: Present and Future, 16 FoRuM 416, 438-40 (1980), for a brief state-by-state survey. 3. Nivens v. Signal Oil & Gas Co., 520 F.2d 1019, 1023 (5th Cir. 1975).

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