The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge
(E.D. Va. # 3:07-cv-00068)
Presently before the Court are the motions in limine "Based Upon the Virginia Statute of Repose" filed by Defendants Bondex International, Inc., RPM Inc. and RPM International (Docs. 25-26) and Georgia-Pacific Corporation (Doc. 28), on May 21, 2009, both adopted on that same date by Defendant Union Carbide Corporation (Doc. 21) (collectively, "Defendants"). Plaintiff Barbara Anne Anderson (alternatively "Plaintiff" or "Anderson") filed a timely response on June 10, 2009 (Doc. 32). Oral argument was heard upon the motions on June 16, 2009. The motions assert that Plaintiff's claims of exposure to asbestos during the construction of drywall partitions at various federal installations at which she worked from 1962 to 1985 are barred by the Virginia statute of repose, Va. Code Ann. § 8.01-250. Defendants seek the entry of an Order precluding any evidence of such exposures.*fn1 For the reasons set out below, we enter an Order denying the motions.
II. Factual Background*fn2
Plaintiff generally alleges that she contracted "pleural mesothelioma" as a result of exposures to, among other things, chrysotile-containing joint compound. The exposures occurred in two specific phases. The first phase was household exposure as a child, when her father worked as an insulator in the Norfolk Naval Shipyard in Portsmouth, VA, and resulted from her occasional laundering of his work clothes. The second phase, pertinent to this motion, took place when she worked in a white-collar office position at Navy-operated office buildings. Those exposures were to dust from joint compound during the construction of drywall partitions and other projects, in the buildings where she worked for the 23 years between 1962 and 1985. Plaintiff has apparently testified at deposition to a recollection of dust having been created from the "mixing" of the joint compound, the "sanding" of the compound after it had been applied to the partition walls and had dried, and the cleanup of the dust created by the sanding. She likewise testified to a recollection of products manufactured by Defendants having been at the various sites. It is this second phase of her exposure that is the subject of this motion.
III. Procedural Background
This case was initially filed in the Richmond Circuit Court on October 26, 2006, and was then removed to the United States District Court for the Eastern District of Virginia. It was transferred to this Court on April 23, 2007 as part of Multidistrict Litigation Docket 875. (Doc. 1). By amended Order of Referral dated June 17, 2009, the Honorable Eduardo C. Robreno, to whom MDL 875 is assigned, this case was referred to us "for final disposition of all pretrial matters not dispositive of a party's claim or defense pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed.R.Civ.P. 72(a)." (Doc. 40).
A. Va. Code Ann. § 8.01-250 and Applicable Interpretive Caselaw
By their motions, Defendants assert that Plaintiff's claims relating to the second phase of exposure to Defendants' products should be excluded by the Virginia statute of repose, Va. Code Ann. § 8.01-250. (Doc. 28 at 9).*fn3 Plaintiff, on the other hand, asserts that the exposures, resulting specifically from the sanding and cleanup came before the point in time when the joint compound was "incorporated" into the improvement and are therefore not barred by the statute of repose. (See Doc. 32-2 at 5).
The statute provides, in pertinent part:
No action to recover for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property... shall be brought against any person performing or furnishing the design, planning, supervision of construction, or construction of such improvement to real property ...