The opinion of the court was delivered by: Eduardo C. Robreno, J.
Transferred from the Northern District of Alabama
This is an asbestos personal injury case. Presently before the Court
are two objections to Judge Rueter's Report and Recommendation ("R&R")
filed April 15, 2011. (Doc. no. 76.) Plaintiffs object to Judge
Rueter's grant of summary judgment for various Defendants on the
one-year statute of limitations issue (doc. no. 79-1).*fn1
A separate group of Defendants object to Judge Rueter's
denial without prejudice of summary judgment on the
"one-disease" or "two-disease" question (doc. no. 78).*fn2
Pursuant to 28 U.S.C. § 636(a)(1)(c), "a judge of the Court shall make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made. A judge of the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
Oscar Allen Corley, the Executor of the Estate of Charles Corley, deceased, filed the instant action in the Circuit Court of Jefferson County, Alabama on May 7, 2009. (R&R at 1). Charles Corley ("Mr. Corley") passed away from mesothelioma on October 3, 2009. (Id.) The case was removed to the Northern District of Alabama, Southern Division, and it was subsequently transferred to the Eastern District of Pennsylvania as part of MDL 875 on February 8, 2010. (Id.)
Plaintiffs seek recovery under the Alabama Wrongful Death Act, Ala. Code § 6-5-410. (Id.) Two separate sets of defendants filed two joint motions for summary judgment. (Id.) The first motion (doc. no. 38) concerns the one-year statute of limitations in Alabama. (See R&R at 1, Defs' Mot. Summ. J., doc. no. 38.) The second motion questions whether Alabama follows a "one-disease" or "two-disease" rule in asbestos cases. (See R&R at 1-2, Defs.' Mot. Summ. J., doc. no. 40.)
A. Plaintiff's Objections to Judge Rueter's Report and Recommendation Based on Alabama's Pre-1979 Statute of Limitations
Defendants moved for summary judgment claiming that because there was no dispute that Mr. Corley's last exposure to any of the products belonging to the defendants occurred on or before Mr. Corley's retirement from the U.S. Navy in 1973, Plaintiffs' claim is time-barred by the Alabama statute of limitations. (R&R at 2, citing Defs.' Mot. Summ. J. at 2; Corley Dep., 8/25-27, 8/31, 2009 at 334-35.)
1. Statute of Limitations Under Alabama Law The one-year statute of limitations rule for pre-1979 asbestos cases is based on the Alabama Supreme Court's ruling in Garrett v. Raytheon Co., Inc., 368 So. 2d 516 (Ala. 1979). Under Garrett, the one year statute of limitations begins to run on the last date of exposure. 368 So. 2d at 517-18; see also Ala. Code § 6-2-39 (repealed 1980). The Alabama legislature subsequently repealed section 6-2-39 and enacted the discovery rule for asbestos cases beginning on May 19, 1980.
The current version of the Alabama statute says:
(a) All civil actions must be commenced after the cause of action has accrued within the period prescribed in this article and not afterwards, unless ...