Present: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and 

Powell, JJ., and Lacy, S.J. 

PHYLLIS H. KISER, 

EXECUTRIX OF THE ESTATE OF 

ORVIN H. KISER, SR., DECEASED 

 OPINION BY 

v. Record No. 120698 CHIEF JUSTICE CYNTHIA D. KINSER 

 JANUARY 10, 2013 

A.W. CHESTERTON CO., ET AL. 

UPON A QUESTION OF LAW CERTIFIED BY THE 

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

The United States Court of Appeals for the Third Circuit 

entered an order of certification requesting that this Court 

exercise jurisdiction pursuant to Article VI, Section 1 of the 

Constitution of Virginia and Rule 5:40, and answer the following 

question of law: 

Whether, under Va. Code § 8.01-249(4), a 

plaintiff's cause of action for damages due to 

latent mesothelioma is deemed to accrue [I] at 

the time of the mesothelioma diagnosis or [II] 

decades earlier, when the plaintiff was diagnosed 

with an independent, non-malignant asbestosrelated disease. 

(Numeral designators added).1

We hold that when enacting Code § 8.01-249(4), the General 

Assembly did not abrogate the common law indivisible cause of 

action principle and that a cause of action for personal injury 

 1

 Code § 8.01-249(4) provides that a cause of action 

for personal injury "resulting from exposure to asbestos or 

products containing asbestos" accrues "when a diagnosis of 

asbestosis, interstitial fibrosis, mesothelioma, or other 

disabling asbestos-related injury or disease is first 

communicated to the person or his agent by a physician." 
2 

based on exposure to asbestos accrues upon the first 

communication of a diagnosis of an asbestos-related injury or 

disease by a physician. 

RELEVANT FACTS AND PRIOR PROCEEDINGS 

The pertinent facts are not in dispute and are taken 

from the opinion in Kiser v. A.W. Chesterton Co., 770 

F.Supp.2d 745 (E.D. Pa. 2011), and the certification order 

in Kiser v. A.W. Chesterton Co., Rec. No. 11-1986 (3d Cir. 

March 26, 2012). Orvin H. Kiser, Sr. worked at a "DuPont" 

plant in Waynesboro, Virginia from 1957 to 1985, during 

which time he was exposed to asbestos. After being 

diagnosed with nonmalignant pleural thickening and 

asbestosis in 1988, he filed a timely suit in the United 

States District Court for the Western District of Virginia 

in 1990 against numerous asbestos manufacturers, sellers, 

and distributors, seeking damages for his employmentrelated exposure and resulting medical condition. In 2010, 

that action was voluntarily dismissed. 

In November 2008, Kiser was diagnosed with 

mesothelioma, an asbestos-related malignant cancer of the 

lung lining. He died the following March. Acting as 

executrix of her deceased husband's estate, Phyllis H. 

Kiser (the Executrix), filed a wrongful death action in 

October 2010 in the United States District Court for the 
3 

Western District of Virginia against twenty-one defendants, 

none of which were parties to the first action. See Kiser, 

770 F.Supp.2d at 746-47. The Executrix alleged that 

Kiser's exposure to the defendants' products during his 

employment at the DuPont plant caused Kiser's development 

of mesothelioma and subsequent death. Id. The Judicial 

Panel on Multidistrict Litigation transferred the action to 

the United States District Court for the Eastern District 

of Pennsylvania. 

The various defendants filed motions to dismiss, 

asserting that the applicable statute of limitations barred 

the Executrix' action. Id. at 747. The defendants 

asserted that, under the indivisible cause of action rule, 

the current action accrued at the time of Kiser's diagnosis 

of asbestosis and pleural thickening and that the action 

was therefore barred by the two-year statute of limitations 

set forth in Code § 8.01-243(A). Id. The Executrix, 

however, maintained that Code § 8.01-249(4) "abolished the 

indivisible cause of action theory and that a new statute 

of limitations was triggered when . . . Kiser was diagnosed 

with mesothelioma" in 2008. Id. 

Citing Virginia case law that recognized the 

indivisible cause of action principle, the district court 

held that Code § 8.01-249(4) instituted a discovery rule 
4 

for the accrual of asbestos-related causes of action but 

did not supplant the indivisible cause of action rule with 

a "separate disease rule." Id. at 749-50. According to 

the district court, "Virginia adheres to the indivisible 

cause of action theory and the statute of limitations for 

all asbestos-related claims begins to run on the initial 

date of diagnosis by a physician of any asbestos-related 

disease." Id. at 751. The district court therefore 

dismissed the action as barred by the statute of 

limitations. Id. 

The Executrix appealed to the United States Court of 

Appeals for the Third Circuit. In its certification order, 

the Third Circuit stated that the timeliness of the 

Executrix' cause of action "turn[ed] on an unresolved 

question of Virginia law: whether the indivisible cause of 

action theory applies to distinct and independent asbestosrelated diseases stemming from the same exposure to 

asbestos." While the Third Circuit recognized Virginia's 

adherence to the indivisible cause of action rule in 

personal injury cases, it noted the absence of a ruling 

from this Court regarding the application of that principle 

to asbestos-exposure cases after the enactment of Code 

§ 8.01-249(4). 
5 

Rule 5:40(a) requires that a certified question be 

"determinative" in "any proceeding pending before the 

certifying court." The certified question is determinative 

because whether the Executrix' wrongful death action is 

time-barred turns on whether the action accrued at the time 

of Kiser's asbestosis diagnosis or at the time of his 

mesothelioma diagnosis. Accordingly, we accepted the 

certified question of law by order entered June 8, 2012. 

ANALYSIS 

The certified question focuses specifically on Code § 8.01-

249(4) and asks when, pursuant to that statute, "a plaintiff's 

cause of action for damages due to latent mesothelioma is deemed 

to accrue." To answer that question and to understand the scope 

and purpose of Code § 8.01-249(4), it is instructive to review 

first the law in effect in 1985 when the General Assembly 

enacted subsection 4. Prior to 1985, two distinct, relevant 

principles existed in the Commonwealth with respect to personal 

injury actions based on exposure to asbestos. First, the 

accrual of a cause of action for such injury was governed by 

Code § 8.01-230, which at that time provided: "In every action 

for which a limitation period is prescribed, the cause of action 

shall be deemed to accrue and the prescribed limitation period 

shall begin to run from the date the injury is sustained in the 
6 

case of injury to the person."2 Former Code § 8.01-230 (Repl. 

vol. 1984) (emphasis added). Construing the "statutory word 

'injury' to mean positive, physical or mental hurt to the 

claimant, not legal wrong to him," we tied the running of the 

statute of limitations "to the fact of harm to the plaintiff, 

without which no cause of action would come into existence."3 

Locke v. Johns-Manville Corp., 221 Va. 951, 957-58, 275 S.E.2d 

900, 905 (1981). Because a cause of action does not arise until 

an injury to a plaintiff can be shown, see Louisville & 

Nashville Railroad Co. v. Saltzer, 151 Va. 165, 170-71, 144 S.E. 

456, 457 (1928), the relevant question for purposes of the 

statute of limitations was: "When was the plaintiff hurt?" 

Locke, 221 Va. at 958, 275 S.E.2d at 905. 

 2

 In 1996, the General Assembly changed the phrase "cause of 

action" to the phrase "right of action." See 1996 Acts ch. 328. 

However, Code § 8.01-249 continues to employ the phrase "cause 

of action." The phrases "cause of action" and "right of action" 

are not synonymous. See Van Dam v. Gay, 280 Va. 457, 460, 699 

S.E.2d 480, 481 (2010). When interpreting and applying a 

statute, we "assume that the General Assembly chose, with care, 

the words it used in enacting the statute, and we are bound by 

those words." Halifax Corp. v. First Union Nat'l Bank, 262 Va. 

91, 100, 546 S.E.2d 696, 702 (2001). 

3

 The essential elements of a good cause of action, 

whether based on an alleged breach of contract or on a 

tortious act, are a legal obligation of a defendant to the 

plaintiff, a violation or breach of that right or duty, and 

a consequential injury or damage to the plaintiff. In the 

absence of injury or damage to a plaintiff or his property, 

he has no cause of action and no right of action can accrue 

to him. 

Caudill v. Wise Rambler, Inc., 210 Va. 11, 13, 168 S.E.2d 257, 

259 (1969). 
7 

In a cause of action for exposure to asbestos resulting in 

mesothelioma, the answer to that question depended on competent 

medical evidence pinpointing the precise date the cancer first 

existed, which would be the first date it was capable of causing 

injury. Id. at 959, 275 S.E.2d at 905. That determination, 

however, was not tantamount to employing a "discovery rule, 

which triggers the running of the statute only when the injury 

is discovered or should have been discovered in the exercise of 

reasonable diligence." Id. As the Court recognized, the 

adoption of such a rule was a decision for the General Assembly 

to make. Id. at 959, 275 S.E.2d at 905-06. 

In 1985, the General Assembly did just that by adding 

subsection 4 to Code § 8.01-249, which contains exceptions to 

the accrual rule set forth in Code § 8.01-230 for certain causes 

of action. 1985 Acts ch. 459. Code § 8.01-249(4) states: 

The cause of action in the actions herein listed 

shall be deemed to accrue as follows: 

. . . . 

4. In actions for injury to the person 

resulting from exposure to asbestos or products 

containing asbestos, when a diagnosis of 

asbestosis, interstitial fibrosis, mesothelioma, 

or other disabling asbestos-related injury or 

disease is first communicated to the person or 

his agent by a physician. However, no such action 

may be brought more than two years after the 

death of such person[.] 
8 

With the enactment of subsection 4, the question asked in Locke, 

when was a plaintiff hurt by exposure to asbestos, was no longer 

relevant to determining the accrual date of that particular 

cause of action. Instead, the cause of action accrued, and thus 

the statute of limitations began to run, when a physician first 

communicated a diagnosis of one of the specified diseases or of 

another "disabling asbestos-related injury or disease" to a 

plaintiff. Id. 

The second pertinent principle that existed in 1985 when 

the General Assembly added subsection 4 to Code § 8.01-249 was 

the common law indivisible cause of action rule. "[A] cause of 

action is a set of operative facts which, under the substantive 

law, may give rise to a right of action." Roller v. Basic 

Constr. Co., 238 Va. 321, 327, 384 S.E.2d 323, 326 (1989); see

also Rule 1:6(a). A right of action "is the remedial right 

accorded [a] person to enforce a cause of action [and] arises 

only when [a] person's rights are infringed." Roller, 238 Va. 

at 327, 384 S.E.2d at 326. Consequently, a right of action 

cannot arise until there is a cause of action, Caudill v. Wise 

Rambler, Inc., 210 Va. 11, 13, 168 S.E.2d 257, 259 (1969), and 

the two do not necessarily arise simultaneously. Van Dam v. 

Gay, 280 Va. 457, 460, 699 S.E.2d 480, 481 (2010). A single 

cause of action may give rise to separate rights of action that 

accrue at different times. First Virginia Bank-Colonial v. 
9 

Baker, 225 Va. 72, 81, 301 S.E.2d 8, 13 (1983); see also

McKinney v. Virginia Surgical Assocs., P.C., 284 Va. 455, 460, 

732 S.E.2d 27, 29 (2012). 

Although multiple rights of action may arise under a given 

cause of action, a wrongful act generally gives rise to only a 

single indivisible cause of action. As the Supreme Court of the 

United States explained in Baltimore Steamship Co. v. Phillips, 

274 U.S. 316 (1927), 

[a] cause of action does not consist of facts, 

but of the unlawful violation of a right which 

the facts show. The number and variety of the 

facts alleged do not establish more than one 

cause of action so long as their result, whether 

they be considered severally or in combination, 

is the violation of but one right by a single 

legal wrong. The mere multiplication of grounds 

of negligence alleged as causing the same injury 

does not result in multiplying the causes of 

action. The facts are merely the means, and not 

the end. They do not constitute the cause of 

action, but they show its existence by making the 

wrong appear. The thing, therefore, which in 

contemplation of law as its cause, becomes a 

ground for action, is not the group of facts

alleged in the declaration, bill, or indictment, 

but the result of these is a legal wrong, the 

existence of which, if true, they conclusively 

evince. 

Id. at 321 (internal quotation marks omitted) (first emphasis 

added). When a plaintiff "suffer[s] but one actionable wrong 

[or] a single wrongful invasion of a single primary right [such 

as] the right of bodily safety," the plaintiff is "entitled to 

but one recovery." Id. 
10 

This Court has long applied this common law principle. In 

Street v. Consumers Mining Corp., 185 Va. 561, 39 S.E.2d 271 

(1946), we stated: 

[A]s a general rule, where an injury, though 

slight, is sustained in consequence of the 

wrongful or negligent act of another and the law 

affords a remedy therefor the statute of 

limitations attaches at once. It is not material 

that all the damages resulting from the act 

should have been sustained at that time and the 

running of the statute is not postponed by the 

fact that the actual or substantial damages do 

not occur until a later date. The act itself is 

regarded as the ground of the action and is not 

legally severable from its consequence. The 

statute then begins to run, and not from the time 

of the damage or discovery of the injury. 

Id. at 566, 39 S.E.2d at 272 (internal quotation marks omitted). 

Thus, a statute of limitations usually commences to run 

when injury is incurred as a result of a wrongful act. By 

enacting Code § 8.01-249(4), however, the General Assembly 

carved out an exception to this principle for asbestos exposure 

causes of action. Nevertheless, when the statute of limitations 

begins to run, it runs as to all damages caused by "the wrongful 

or negligent act of another," even if the individual suffers 

additional damages at a later date. See id.; Lo v. Burke, 249 

Va. 311, 317, 455 S.E.2d 9, 13 (1995) ("[T]he statute of 

limitations begins to run when any injury, though slight, is 

sustained as the consequence of an alleged wrong, despite the 

fact that greater damage from the same wrong may be sustained at 
11 

a later date."); Starnes v. Cayouette, 244 Va. 202, 206, 419 

S.E.2d 669, 671 (1992) ("[W]hen a tort causes a contemporaneous 

personal injury, the fact that the victim suffered greater 

physical or mental hurt from that tort at a later date does not 

defer the date of accrual of the cause of action."). 

If the "act itself is regarded as the ground of the 

action," and thus cannot be "legally severable from its 

consequence," Street, 185 Va. at 566, 39 S.E.2d at 272, a single 

wrongful act may not give rise to two independent causes of 

action. See Shortt v. Hudson Supply & Equip. Co., 191 Va. 306, 

310, 60 S.E.2d 900, 902 (1950) (A plaintiff injured in an 

automobile accident "had but a single claim – an indivisible 

cause of action for damages for his personal injuries arising 

out of the collision."); Carter v. Hinkle, 189 Va. 1, 4, 52 

S.E.2d 135, 136 (1949) ("[A]s a general rule a single cause of 

action cannot be split into several claims and separate actions 

maintained thereon."). The indivisible cause of action rule 

governs how many causes of action arise from a single wrongful 

act that violates a single right of a plaintiff; the rule 

applies to actions based on injury to the person regardless of 

how the person was injured. See, e.g., Baltimore S.S. Co., 274 

U.S. at 321-22 (plaintiff struck by falling beam on ship); 

Starnes, 244 Va. at 204-06, 419 S.E.2d at 670-71 (plaintiff 

victim of sexual assault); Shortt, 191 Va. at 309-10, 60 S.E.2d 
12 

at 902-03 (plaintiff hurt in vehicle accident). "The number and 

variety of facts alleged do not establish more than one cause of 

action so long as their result . . . is the violation of but one 

right by a single legal wrong."4 Baltimore S.S. Co., 274 U.S. at 

321. 

There is one notable exception to this rule: a single 

wrongful act may give rise to separate causes of action if that 

wrongful act violates distinct rights. In Carter, the injured 

plaintiff filed an action for personal injuries after earlier 

filing an action for property damage caused by an automobile 

accident. 189 Va. at 3, 52 S.E.2d at 136. Recognizing the 

general rule, the Court nevertheless noted that "the history of 

the common law shows that the distinction between torts to the 

person and torts to property has always obtained." Id. at 4-6, 

52 S.E.2d at 136-37 (internal quotation marks omitted). The 

Court stated that two actions could be maintained when two 

distinct rights, the "right of personal security and the right 

of property," were invaded by a single wrongful act: " 'If two 

 

4 Certainly, if there are separate occurrences of wrongful 

conduct causing new injuries, separate causes of action may 

arise. See Hampton Rds. Sanitation Dist. v. McDonnell, 234 Va. 

235, 239, 360 S.E.2d 841, 843 (1987). As the Third Circuit 

stated, however, the issue in this case is whether the 

indivisible cause of action rule applies "to distinct and 

independent asbestos-related diseases stemming from the same 

exposure to asbestos" in light of Code § 8.01-249(4). (Emphasis 

added.) The Executrix' contention throughout this case has been 

that Code § 8.01-249(4) creates separate causes of action 

because the injury, not the harmful act, is discrete.
13 

separate and distinct primary rights could be invaded by one and 

the same wrong, or if the single primary right should be invaded 

by two distinct and separate legal wrongs, in either case two 

causes of action would exist.' " Id. at 6-7, 52 S.E.2d at 138 

(quoting John N. Pomeroy, Pomeroy's Code Remedies § 350 (4th ed. 

1904)). 

Although we have never addressed the indivisible cause of 

action principle in regard to asbestos exposure causes of action 

since the enactment of Code § 8.01-249(4), the principle 

nevertheless controls. That is, the Executrix' cause of action 

for Kiser's wrongful death resulting from exposure to asbestos 

accrued at the time of his diagnosis for asbestosis, see Code 

§ 8.01-249(4), unless, as the Executrix argues, the enactment of 

subsection 4 of Code § 8.01-249 not only established a discovery 

accrual rule but also abrogated the common law. When it enacted 

§ 8.01-249(4), the General Assembly is presumed to have known of 

the common law indivisible cause of action principle and its 

applicability to actions for injury to the person, including 

those based on exposure to asbestos. See Andrews v. 

Commonwealth, 280 Va. 231, 286, 699 S.E.2d 237, 269 (2010). The 

Court must, therefore, read Code § 8.01-249(4) "in conjunction 

with the common law, giving effect to both 'unless it clearly 

appears from express language or by necessary implication that 

the purpose of [Code § 8.01-249(4)] was to change the common 
14 

law.' " Jenkins v. Mehra, 281 Va. 37, 44, 704 S.E.2d 577, 581 

(2011) (quoting Isbell v. Commercial Inv. Assocs., Inc., 273 Va. 

605, 614, 644 S.E.2d 72, 75-76 (2007)). 

The Court presumes that no change to the common law was 

intended, and abrogation only occurs "when the legislative 

intent to do so is plainly manifested." Id. (internal quotation 

marks omitted). And, "even where a statute's purpose is to 

abrogate the common law, such statute is 'to be strictly 

construed and not to be enlarged in [its] operation by 

construction beyond [its] express terms.' " Id. at 45, 704 

S.E.2d at 581 (quoting Isbell, 273 Va. at 613, 644 S.E.2d at 75) 

(alterations in original). 

We begin with the language of the statute at issue. Code 

§ 8.01-249(4) states: 

The cause of action . . . . [i]n actions for 

injury to the person resulting from exposure to 

asbestos or products containing asbestos [shall 

be deemed to accrue] when a diagnosis of 

asbestosis, interstitial fibrosis, mesothelioma, 

or other disabling asbestos-related injury or 

disease is first communicated to the person or 

his agent by a physician. 

This language is plain and unambiguous.5 "In construing a 

statute, we must apply its plain meaning, and 'we are not free 

 5

 Because the Executrix does not assert that Code § 8.01-

249(4) is ambiguous, we will not inquire, as she nevertheless 

requests, as to "what was the mischief and defect against which 

the previous law did not provide" prior to the 1985 amendment. 

City of Richmond v. Sutherland, 114 Va. 688, 691, 77 S.E. 470, 
15 

to add [to] language, nor to ignore language, contained in 

statutes.' " BBF, Inc. v. Alstom Power, Inc., 274 Va. 326, 331, 

645 S.E.2d 467, 469 (2007) (quoting SIGNAL Corp. v. Keane Fed. 

Sys., Inc., 265 Va. 38, 46, 574 S.E.2d 253, 257 (2003)). 

" '[When] the legislature has used words of a plain and definite 

import the courts cannot put upon them a construction which 

amounts to holding the legislature did not mean what it has 

actually expressed.' " Barr v. Town & Country Props., 240 Va. 

292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins v. Hall, 

161 Va. 924, 930, 172 S.E. 445, 447 (1934)). 

The particular "cause of action" addressed in subsection 4 

is "for injury to the person resulting from exposure to asbestos 

or products containing asbestos." Code § 8.01-249(4). Such 

causes of action accrue when the diagnosis of any of the 

specified diseases or some "other disabling asbestos-related 

injury or disease" is communicated to the patient or his agent 

by a physician. Id. The other subsections within Code § 8.01-

249 have this same grammatical structure. Each begins by 

identifying a specific cause of action and then defining the 

particular point at which that action accrues. In every listed 

cause of action but one, the accrual of the cause of action is 

 

471 (1913). This Court does not look to legislative intent when 

the language of a statute is clear and unambiguous. Eberhardt 

v. Fairfax Cnty. Emps. Ret. Sys. Bd. of Trustees, 283 Va. 190, 

194, 721 S.E.2d 524, 526 (2012). 
16 

demarcated by a prepositional phrase starting with the word 

"when." See, e.g., Code § 8.01-249(5) ("The cause of action 

. . . . [i]n actions for contribution or for indemnification 

[shall be deemed to accrue] when the contributee or the 

indemnitee has paid or discharged the obligation."). 

The Executrix contends, however, that the "separate listing 

of the different asbestos-related diseases clearly and plainly 

evinces the General Assembly's intent to treat each distinct 

disease as a separate cause of action." Under this reading, the 

prepositional phrase in Code § 8.01-249(4) that contains the 

listed diseases would not modify the verb "accrue" to specify 

the point at which the cause of action accrues, but actually 

would create separate causes of action. According to the 

Executrix, the cause of action specified in Code § 8.01-249(4) 

is not a "cause of action . . . . for injury to the person 

resulting from exposure to asbestos or products containing 

asbestos," but is a "cause of action [for] asbestosis, 

interstitial fibrosis, mesothelioma, or other disabling 

asbestos-related injury or disease." This interpretation 

manifestly requires a re-writing of the statute. 

By listing separate diseases in the disjunctive, the 

General Assembly merely indicated that the diagnosis of any one 

disease triggers the statute's application, a perfectly sensible 

decision given the commonality of the listed diseases in 
17 

asbestos exposure cases.6 Moreover, whatever its purpose, the 

itemization of distinct diseases does not alter the opening 

language of the statute, which makes clear that it addresses the 

accrual of "[t]he cause of action [i]n actions for injury to the 

person resulting from exposure to asbestos or products 

containing asbestos." Code § 8.01-249(4). In other words, the 

General Assembly did not create a separate cause of action for 

each asbestos-related injury or disease. 

The Executrix also relies on the dissenting opinion in 

Joyce v. A.C. & S., Inc., 785 F.2d 1200 (4th Cir. 1986) 

(Swygert, J., dissenting). But there, Judge Swygert argued that 

separate diseases caused by asbestos exposure "represent rights

of action which mature independently and trigger statutes of 

limitations separately," while the cause of action was "the 

exposure to asbestos." Id. at 1209 (Swygert, J., dissenting) 

(emphasis added). Judge Swygert believed this outcome was 

consistent with "holding that the 'cause of action' itself is 

unitary and indivisible." Id. The notion that a single cause 

 6

 Asbestosis is the most common asbestos-related disease, 

and mesothelioma is the most fatal. See Peerman v. Georgia-Pac. 

Corp., 35 F.3d 284, 285 (7th Cir. 1994) (citing Gray's 

Attorney's Textbook of Medicine ¶ 205C.11(1) (3d ed. 1980)); 

Hansen v. Johns-Manville Prods. Corp., 734 F.2d 1036, 1039 n.2 

(5th Cir. 1984). In addition, the Executrix acknowledges that 

interstitial fibrosis and asbestosis are the same disease and 

that the General Assembly merely included interstitial fibrosis 

as an apposition to further identify asbestosis. That 

explanation undermines the significance that the Executrix 

places on the separate listing of diseases. 
18 

of action could give rise to multiple rights of action is in 

accord with Virginia case law. See, e.g., McKinney, 284 Va. at 

460, 732 S.E.2d at 29. But adopting that analysis in this case 

would violate the plain language of Code § 8.01-249(4), which 

refers only to causes of action. 

Several other factors also support our holding that the 

General Assembly, by enacting Code § 8.01-249(4), created only a 

discovery accrual rule for asbestos exposure actions and did not 

abrogate the common law indivisible cause of action principle 

for such actions. The first is Code § 8.01-249(4)'s location in 

the Code. See Campbell Cnty. v. Royal, 283 Va. 4, 24, 720 

S.E.2d 90, 100 (2012) (noting "the larger legislative context in 

which the General Assembly placed" a statute). Code § 8.01-249, 

as explained above, is an exception to the general rule set 

forth in Code § 8.01-230 for accrual of causes of action. Both 

Code §§ 8.01-230 and -249 are found in Chapter 4 of Title 8.01, 

which Chapter is titled "Limitations of Actions." Within 

Chapter 4, Code § 8.01-249 is found in Article 3 addressing 

"Personal Actions Generally." Chapter 3 of Title 8.01, on the 

other hand, is titled "Actions" and contains multiple Articles 

establishing particular causes of action. Thus, both Code 

§§ 8.01-230 and -249 limit causes of action by specifying when 

the actions accrue, but the actions themselves exist by virtue 

of other statutory provisions. 
19 

In amending Code § 8.01-249 throughout the years, the 

General Assembly has reaffirmed through the amendments' 

enactment clauses what is evident from the statute's plain 

language and location in the Code: that the provision deals only 

with the accrual of causes of action and does not create the 

causes of action. An enactment clause "is part of the body of 

the act which states the precise action taken by the 

legislature, thereby establishing the jurisdiction and the 

authenticity of the act." Gilmore v. Landsidle, 252 Va. 388, 

394, 478 S.E.2d 307, 311 (1996). The enactment clause "also 

secures uniformity of identification, thus preventing 

inadvertence, possible mistake, and fraud." Id. at 395, 478 

S.E.2d at 311. "[T]his Court may rely on the [enactment] clause 

to determine the precise content of legislation." Id. 

In enacting subsection 4, the General Assembly stated that 

it was "[a]n Act to amend and reenact § 8.01-249 . . . relating 

to accrual of actions for personal injuries resulting from 

asbestos or asbestos products." 1985 Acts ch. 459. Thus, the 

"precise action" taken by the legislature in enacting subsection 

4 was to identify when an already existing cause of action 

accrues, and not to create a cause of action for each disease 

caused by asbestos exposure. See Code § 8.01-249(4) Revisers' 

Note ("While [the discovery rule contained in the section] 

represents an exception to the general rule embodied in § 8.01-
20 

230 . . . § 8.01-249 follows Virginia law."); Simon v. Forer, 

265 Va. 483, 490-91, 578 S.E.2d 792, 796 (2003) (relying on 

Revisers' Note in interpreting meaning of statute). 

Similarly, every other enactment clause for amendments to 

Code § 8.01-249 has made clear that the provision deals only 

with the accrual of existing causes of action, and not their 

creation. See 1966 Acts ch. 118 ("[a]n Act to amend and reenact 

§ 8-13 . . . relating to limitations of personal actions 

generally"); 1986 Acts ch. 601 ("[a]n Act to amend and reenact 

§ 8.01-249 . . . relating to accrual of causes of action"); 1991 

Acts ch. 674 ("[a]n Act to amend and reenact § 8.01-249 . . . 

relating to accrual of actions"); 1992 Acts ch. 817 ("[a]n Act 

to amend and reenact § 8.01-249 . . . relating to when a cause 

of action is deemed to accrue in designated personal actions"); 

1993 Acts ch. 523 ("[a]n Act to amend and reenact § 8.01-249 

. . . relating to accrual of civil actions"); 1997 Acts ch. 565 

("[a]n Act to amend and reenact § 8.01-249 . . . relating to 

accrual of actions"); 2005 Acts ch. 213 ("[a]n Act to amend and 

reenact § 8.01-249 . . . relating to accrual of causes of 

action"). Thus, throughout the history of Code § 8.01-249, the 

General Assembly clearly stated its intent that this statute 

deals only with the accrual of causes of action. 

In sum, nothing in Code § 8.01-249(4), including the 

itemization of separate asbestos-related diseases, constitutes 
21 

"express language or . . . necessary implication" that the 

General Assembly intended Code § 8.01-249(4) to abrogate the 

common law indivisible cause of action rule for asbestos 

exposure actions. See Jenkins, 281 Va. at 44, 704 S.E.2d at 581 

(internal quotation marks omitted). Giving effect to both the 

common law and Code § 8.01-249(4), we hold that by enacting Code 

§ 8.01-249(4), the General Assembly instituted a discovery rule 

for the accrual of actions based on exposure to asbestos. It 

did not, however, abrogate the indivisible cause of action 

principle by creating a "separate disease rule" for such causes 

of action arising from a single wrongful act that violates a 

single right of a plaintiff. 

CONCLUSION 

We are well aware of the quandary confronting a plaintiff 

who has been diagnosed with an asbestos-related disease in 

deciding when to file an action under the current statutory and 

common law regime. We are also aware that numerous 

jurisdictions, in noting the quandary, have permitted separate 

causes of action for malignant and non-malignant asbestosrelated diseases.7

 But we have repeatedly said that, in 

 7

 Many of the decisions from other jurisdictions on which 

the Executrix relies make clear, either expressly or implicitly, 

that the accrual of causes of action is determined by the 

judiciary in those jurisdictions. See, e.g., Sopha v. OwensCorning Fiberglas Corp., 601 N.W.2d 627, 632 (Wis. 1999); Pierce 

v. Johns-Manville Sales Corp., 464 A.2d 1020, 1025-27 (Md. 
22 

Virginia, remedying such policy-related problems is the role of 

the General Assembly, not ours.8

 See, e.g., Shipman v. Kruck, 

267 Va. 495, 503, 593 S.E.2d 319, 323 (2004) (refusing to adopt 

a discovery rule by judicial decision and noting that it is "the 

role of the General Assembly, not the judiciary, to change a 

rule of law that has been relied upon by bench and bar for so 

long"). The indivisible cause of action rule has existed in the 

Commonwealth for decades, and a decision that causes of action 

for asbestos exposure are not subject to the rule must come from 

the General Assembly, not the Court. 

The certified question of law asks: 

Whether, under Va. Code § 8.01-249(4), a 

plaintiff's cause of action for damages due to 

latent mesothelioma is deemed to accrue [I] at 

the time of the mesothelioma diagnosis or [II] 

decades earlier, when the plaintiff was diagnosed 

with an independent, non-malignant asbestosrelated disease. 

 

1983). Obviously, the judiciary does not do so in Virginia. 

8

 In fact, several statutes demonstrate that the General 

Assembly is aware of the difficulties in litigating asbestos 

exposure causes of action. See Code § 8.01-277(B) (permitting 

dismissal of actions in cases where process is not served within 

one year, but excepting asbestos cases); Code § 8.01-335(D) 

(permitting cases where process is not served within one year to 

be struck from docket, but excepting asbestos cases). These 

statutes further demonstrate that the General Assembly did not 

intend to abrogate the common law when it enacted subsection 4 

of Code § 8.01-249. Otherwise, these exceptions for asbestos 

exposure actions would not be needed. 
23 

(Numeral designators added). For the reasons stated, we answer 

that question in the negative with respect to alternative [I] 

and in the affirmative with respect to alternative [II]. 

Certified question alternative [I] 

answered in the negative. 

Certified question alternative 

[II] answered in the affirmative. 

JUSTICE MILLETTE, with whom JUSTICE MIMS joins, dissenting. 

Today, the majority holds that "by enacting Code § 8.01-

249(4), the General Assembly instituted a discovery rule for the 

accrual of actions based on exposure to asbestos. It did not, 

however, abrogate the indivisible cause of action principle by 

creating a 'separate disease rule.' " I agree with my 

colleagues that Code § 8.01-249(4) has but one purpose – to 

create a discovery rule. Because I do not agree that this 

conclusion mandates the outcome of today's opinion, however, I 

respectfully dissent. 

As the majority demonstrates, the statute in question 

indeed creates a discovery rule. That is, it relates to the 

proper commencement of the statute of limitations. It provides 

no guidance whatsoever as to the question posed to us by the 

Third Circuit regarding when the cause of action is to accrue. 

Likewise, it offers no comment on the application of the 

indivisible cause of action rule in asbestos cases. To 
24 

interpret it to address either would be to embrace more than one 

object in a single law in violation of Article IV, § 12 of the 

Virginia Constitution. 

Thus, we are left to answer the question posed by the Third 

Circuit without guidance from Code § 8.01-249(4). The majority 

holds that addressing whether separate causes of action arise in 

asbestos cases is a "policy-related problem[]" that is properly 

within the province of the General Assembly. To support this 

claim, the majority cites Shipman v. Kruck, 267 Va. 495, 503, 

593 S.E.2d 319, 323 (2004). Shipman, while observing that it is 

within the authority of the General Assembly and not the Court 

to create a discovery rule, does not stand for the proposition 

that every issue implicating policy is the sole domain of the 

legislature. Courts must respect the line between judicial 

interpretation and legislating from the bench. The distinction 

here, however, is clear: discovery rules apply to the 

commencement of the statute of limitations, an issue that is 

fundamentally statutory in nature and properly sits with the 

legislature. The accrual of causes of action has long been 

governed by common law, see, e.g., Caudill v. Wise Rambler, 

Inc., 210 Va. 11, 13, 168 S.E.2d 257, 259 (1969); Locke v. 

Johns-Manville Corp., 221 Va. 951, 958, 275 S.E.2d 900, 905 

(1981), and clarifying or refining the application of an 
25 

existing common law principle fits within the province and duty 

of this Court. 

We should therefore turn to the common law governing when a 

cause of action accrues. The terms cause of action and right of 

action are often confused in legal writing and, as the majority 

points out, they are not synonymous. We have previously held 

that a cause of action accrues when the harm occurs, and not 

before: 

The essential elements of a good cause of action, 

whether based on an alleged breach of contract or on a 

tortious act, are a legal obligation of a defendant to 

the plaintiff, a violation or breach of that right or 

duty, and a consequential injury or damage to the 

plaintiff. In the absence of injury or damage to a 

plaintiff or his property, he has no cause of action 

and no right of action can accrue to him. 

Caudill, 210 Va. at 13, 168 S.E.2d at 259. In Locke, 221 Va. at 

958, 275 S.E.2d at 905, we held that when medical evidence 

showed that a cancerous mesothelioma tumor began its development 

not contemporaneously with the asbestos exposure but some time 

later, the development of the cancer and not the exposure 

triggered the accrual of the cause of action. The relevant 

question, we reiterated, was, "When was the plaintiff hurt?" 

Id. 

This rule as to the accrual of the cause of action was not 

modified by Code § 8.01-249. This Code section simply lists 

discovery rules applicable to the commencement of the running of 
26 

the statute of limitations for the specific categories of claims 

listed in the statute. The creation of such a discovery rule 

for asbestos cases negates the need for medical testimony to 

identify when the cancer likely developed in cases such as 

Locke, but it has no effect on the accrual of the cause of 

action. Rather, it affects the accrual of the right of action. 

The general rule for accrual of a right of action in 

Virginia, set forth in Code § 8.01-230, reads in pertinent part 

as follows: 

In every action for which a limitation period is 

prescribed, the right of action shall be deemed to 

accrue and the prescribed limitation period shall 

begin to run from the date the injury is sustained in 

the case of injury to the person . . . and not when 

the resulting damage is discovered, except . . . where 

otherwise provided [in another] statute. 

Id. This statute was amended from an earlier version that 

erroneously used the term "cause of action" as opposed to "right 

of action." See Code § 8.01-230 (1984 Repl. Vol.). The same 

linguistic change should have been made to Code § 8.01-249, an 

example of a statute "otherwise provid[ing]" a specific time of 

accrual. In the absence of the change, the Code section is 

internally incongruous: a "cause" of action does not have a 

statute of limitations and likewise is not subject to a 

discovery rule. A cause of action is substantive in nature and 

always arises upon the harm to the plaintiff. Locke, 221 Va. at 

958, 275 S.E.2d at 905. A "right" of action, to which Code 
27 

§ 8.01-249 is clearly intended to refer, is the legal ability to 

seek recourse for that cause of action, and is subject to 

discovery rules and statutes of limitations. See Keister v. 

Keister, 123 Va. 157, 160, 96 S.E. 315, 316 (1918). 

 There is no statutory law or common law rule in Virginia 

requiring that distinct asbestos-related diseases constitute the 

same cause of action.1

 When, as in the case of asbestosis and 

mesothelioma, there are two distinct and unrelated harms that 

accrue at different times, the plaintiff may have two separate 

causes of action. 

A considerable portion of the majority opinion addresses 

the indivisible cause of action rule. A common articulation of 

this principle is: 

where an injury, though slight, is sustained in 

consequence of the wrongful or negligent act of 

another and the law affords a remedy therefor the 

statute of limitations attaches at once. It is not 

material that all of the damages resulting from the 

act should have been sustained at that time and the 

running of the statute is not postponed by the fact 

that the actual or substantial damages do not occur 

until a later date. 

Street v. Consumers Mining Corp., 185 Va. 561, 566, 39 S.E.2d 

271, 272 (1946) (internal quotation marks omitted). This 

principle in fact addresses not the accrual of the cause of 

 1

 The Joyce decisions, Joyce v. A.C. & S., Inc., 591 F.Supp. 

449 (W.D. Va. 1984) and the Fourth Circuit case affirming the 

holding, Joyce v. A.C. & S., Inc., 785 F.2d 1200 (4th Cir. 

1986), are federal interpretations of Virginia law and do not 

bind this Court. 
28 

action but rather the accrual of a right of action, the 

commencement of the statute of limitations, and the possibility 

of later claims being barred by issue or claim preclusion.2 The 

indivisible cause of action rule is a principle of res judicata 

or estoppel (issue or claim preclusion), and does not influence 

whether the substantive cause of action exists. See Wilson v. 

Johns-Manville Sales Corp., 684 F.2d 111, 117-18 (D.C. Cir. 

1982). 

The law may indeed provide other bars to subsequent actions 

arising from the same act or set of acts, depending upon the 

details of the record and the nature of the previous action. 

That is a different question than whether the cause of action 

exists. Under Virginia law, it does. The simplest instance can 

be seen in the case of an individual who was diagnosed with mild 

asbestosis and chose not to bring suit. The mere diagnosis of 

asbestosis should not serve as a bar to a later suit for 

mesothelioma, upon its discovery. See id. If the second harm 

has not yet occurred upon the accrual of the first right of 

action, then the plaintiff cannot possibly bring them in the 

same action. "A disease like this cancer must first exist 

before it is capable of causing injury. To hold otherwise would 

 2

 Additionally, this principle has been invoked in cases 

where the additional damages were cumulative in nature and 

relate to the initial harm, which is not the issue before the 

Court. 
29 

result in the inequity of barring the mesothelioma plaintiff's 

cause of action before he sustains injury." Locke, 221 Va. at 

959, 275 S.E.2d at 905. When the harm at issue is cancer to the 

lining of the lungs, it is illogical to say that the cause of 

action accrues before the cancer has even developed. Since the 

discovery rule under Code § 8.01-249(4) applies generally to 

asbestos-related injuries, it applies to mesothelioma victims 

regardless of a previous diagnosis of asbestosis. 

 Further bolstering the argument for two causes of action is 

the fact that, in multiple-exposure cases such as this, we do 

not know at the onset of the suit whether the relevant exposures 

that caused the two harms arose from the same act or set of 

acts.3 To so conclude would be to hold as a matter of law that 

multiple exposures to different asbestos products must always 

constitute the same singular "act." In the case before us, we 

have potentially distinct causal exposures (given the 

multiplicity of defendants) and two distinct harms, linked only 

by the fact that the harms were caused by inhalation of the same 

 3

 The majority quotes a portion of the Third Circuit's 

memorandum of certification that refers to the two diseases as 

"stemming from the same exposure to asbestos." The same 

document acknowledges that Kiser's original asbestosis suit 

contained eighteen asbestos manufacturers, sellers, and 

distributors, and that the mesothelioma suit at bar originally 

contained twenty different additional defendants. Although 

these exposures may have occurred while working for the same 

primary employer, this appears from our position to be a 

multiple-exposure case. 
30 

substance. It is reasonable to find two distinct causes of 

action. 

 Additionally, given that the first cause of action for 

asbestosis injury was voluntarily dismissed in the instant case, 

the effect of issue and claim preclusion mechanisms is dependent 

on the record and far beyond the scope of the certified question 

before the Court today. The ample attention given by the 

majority to the indivisible cause of action rule is premature. 

Our holding in Locke that the cause of action accrues at 

the time of the harm rather than at the time of exposure 

logically makes Virginia a "two-disease rule" state, in the 

common shorthand of asbestos litigation. Beyond Locke, however, 

there are a multitude of reasons why the Commonwealth should 

recognize a two-disease rule in asbestos cases. 

First, asbestosis and mesothelioma are medically discrete 

and independent diseases. They develop in different parts of 

the body and follow dramatically different courses. Asbestosis 

is a non-malignant disease of the lung, also known as 

interstitial fibrosis. 5 Richard M. Patterson, Lawyers' Medical 

Cyclopedia of Personal Injuries & Allied Specialties § 33.54, at 

33-83 (6th ed. repl. ed. 2011). The disease gradually worsens, 

particularly with continued exposure to asbestos, generally 

resulting in decreased pulmonary function and increased 

difficulty breathing over time. Id. at 33-83 through 33-84. 
31 

Mesothelioma is a malignant cancer of the pleura (lining) of the 

lung or, more rarely, of the peritoneum (abdominal cavity). Id.

at 33-85 through 33-86. It has a significant latency period, 

the exact time period of which is disputed by experts, but 

appears from current medical knowledge to average approximately 

thirty-five years. Id. at 33-85. Mesothelioma has been 

documented not only in asbestos workers but also in individuals 

who have had low-level exposure through, for example, living in 

asbestos mining towns or being married to an asbestos worker who 

carried fibers home on his or her clothes. Id. at 33-85 through 

33-86. The disease is virtually always fatal within two years 

of diagnosis. Id. at 33-86. 

Virginia courts, like many jurisdictions, acknowledge these 

distinctions by treating the diseases differently at trial. We 

have required plaintiffs in asbestosis cases to show repeated or 

prolonged exposure to asbestos. We have cited with approval a 

Georgia case that stated that asbestosis, "by definition, 

results only from an overexposure to asbestos." Norfolk S. Ry. 

v. Rogers, 270 Va. 468, 485, 621 S.E.2d 59, 69 (2005) (internal 

quotation marks and citation omitted). See also Norfolk & W. 

Ry. v. Ayers, 538 U.S. 135, 155-56 (2003) ("Asbestosis is a 

chronic, painful and concrete reminder that [a plaintiff] has 

been injuriously exposed to a substantial amount of asbestos.") 
32 

(internal quotation marks and emphasis omitted) (emphasis 

added). 

On the other hand, we have recognized that a lesser degree 

of exposure may be sufficient to prove causation in mesothelioma 

cases. We considered a case in which a shipyard pipe-coverer 

developed mesothelioma and died after cutting and installing 

insulation products which contained asbestos, a process that 

created visible dust which he inhaled. Owens-Corning Fiberglas 

Corp. v. Watson, 243 Va. 128, 143-44, 413 S.E.2d 630, 639 

(1992). The decedent had not been able to identify the brand or 

brands of asbestos products that he worked with prior to his 

death. We nonetheless determined that the circumstantial 

evidence that an asbestos product known as "Kaylo," manufactured 

by the defendant, was a prominently used product on the ship, 

combined with "medical evidence reveal[ing] that very limited 

exposure to asbestos fibers can cause mesothelioma," provided 

sufficient evidence to support a jury verdict against the 

manufacturer. Id. at 143, 413 S.E.2d at 639. 

"One of the principal tests in determining whether a demand 

is single and entire, or whether it is several, so as to give 

rise to more than one cause of action, is the identity of facts 

necessary to maintain the action. If the same evidence will 

support both actions there is but one cause of action." Jones 

v. Morris Plan Bank, 168 Va. 284, 290-91, 191 S.E. 608, 609-10 
33 

(1937). Here, the evidence set forth for asbestosis and 

mesothelioma claims, although containing some overlap, are 

markedly different. 

Indeed, the only certain connection that these two diseases 

have is that they both stem from exposure to asbestos. In the 

case at bar, the defendants are entirely distinct from those in 

the original asbestosis suit. Given our current state of 

medical knowledge, however, it is not even possible to determine 

with certainty which disease stemmed from what asbestos 

exposure(s). See Ford Motor Co. v. Boomer, 285 Va. ___, ___, 

___ S.E.2d ___, ___ (2013) (this day decided). 

Not all victims of asbestosis develop mesothelioma, but 

given their generally substantial periods of asbestos exposure, 

some do. And this underscores the fundamental unfairness of 

deeming only a single cause of action to exist for all asbestos 

exposure cases: while an individual who developed mesothelioma 

from only minimal asbestos exposure not sufficient to develop 

asbestosis has a recourse in the law for his or her mesothelioma 

diagnosis because that individual has not suffered a previous 

injury, an individual who first developed asbestosis due to his 

or her longer exposure to asbestos can recover for the effects 

of his non-malignant asbestosis but has no recourse in the law 

for his second, likely fatal disease. 
34 

As explained by the majority, the fundamental purpose of 

the subsections of Code § 8.01-249 is to create discovery rules. 

Generally, the intent of a discovery rule is to expand

plaintiffs' access to legal remedies by deferring the statute of 

limitations to permit plaintiffs a fair chance to file suit when 

the onset of the harm would have been previously unknown to 

them: that is, the purpose is to make the operation of the 

statute of limitations more appropriately fit the disease in the 

interest of fairness. 

The effect of today's holding, however, is to contract that 

right to remedies for mesothelioma plaintiffs when the victims 

were previously diagnosed with asbestosis. The relatively short 

latency period for asbestosis, the applicable two-year statute 

of limitations for personal injury, and the substantially longer 

latency period for mesothelioma virtually guarantee that 

individuals who have asbestosis will be barred from recovering 

damages should they subsequently develop mesothelioma. 

Such a holding is contrary to the purpose behind the 

creation of a discovery rule. Indeed, the enactment of the 

discovery rule provisions in Code § 8.01-294(4) is only one of 

several actions taken by the General Assembly that suggest an 

intent to treat asbestos-related diseases differently in order 

to produce a fair result. See Code § 8.01-277(B) (permitting 

dismissal of actions in cases where process is not served within 
35 

one year, but excepting asbestos cases); Code § 8.01-335(D) 

(permitting cases where process is not served within one year to 

be struck from docket, but excepting asbestos cases). 

Certainly, it is not the case that two asbestos-related 

diseases could never constitute the same cause of action. That 

is not the question before us. Should medical knowledge evolve 

to show that the harm occurred simultaneously, for example, the 

injuries would constitute the same cause of action. The Tenth 

Circuit put it well in a similar question certified to the 

Supreme Court of Colorado: 

We recognize that the relationship between asbestosrelated pleural disease and asbestosis is a factual 

question. Because this is an appeal from a summary 

judgment and there is conflicting evidence in the 

record, it must be assumed that asbestosis is separate 

and distinct from and not a complication of asbestosrelated pleural disease. We thus respectfully request 

the Colorado Supreme Court to focus on the narrow 

legal issue of whether a statute of limitations begins 

to run anew for a separate, distinct, and latermanifested disease caused by exposure to asbestos. 

Miller v. Armstrong World Indus., Inc., 817 P.2d 111, 113 (Colo. 

1991) (quoting from the certification order and finding that the 

discovery of one separate asbestos related disease does not 

trigger the statute of limitations on a yet undiscovered 

disease). 

Ever-evolving, fact-specific inquiries such as this are 

best left to expert testimony at trial. Given sufficient 

evidence to create an issue of fact, however, as to whether the 
36 

disease is distinct and not a mere complication of an earlier 

diagnosis, and provided that the other requisite elements have 

been pled, courts should consider mesothelioma as a distinct 

harm and a distinct cause of action. 

Finally, permitting distinct causes of action would join a 

nationwide trend toward adopting a two-disease rule in the 

interest of equity and judicial economy. See Hagerty v. L&L 

Marine Servs., Inc., 788 F.2d 315, 320 (5th Cir. 1986) ("At 

least in the toxic chemical or asbestos cases, the disease of 

cancer should be treated as a separate cause of action for all 

purposes. There should be no cause of action or beginning of 

the running of limitations until the diagnosis of the 

disease. . . . A prior but distinct disease, though the 

tortfeasor may have paid reparations, should not affect the 

cause of action and damages for the subsequent disease."); 

Wilson, 684 F.2d at 120 (D.C. Cir. 1982) ("Concern for judicial 

economy also influences our decision. [I]f [an injured] person 

is told that another, more serious disease may manifest itself 

later on, and that a remedy in court will be barred unless an 

anticipatory action is filed currently, there will be a powerful 

incentive to go to court [and the] plaintiff's representative 

. . . may be motivated to protract and delay once in court so 

that the full story of his client's condition will be known 

before the case is set for trial."); Fearson v. Johns-Manville 
37 

Sales Corp., 525 F.Supp. 671, 674 (D.D.C. 1981) ("Under 

defendants' theory, plaintiffs would be forced to come into 

Court as soon as any minimal problem is diagnosed and seek 

speculative damages as to any other injuries that might develop 

in the future. Plain common sense teaches that the law was 

never meant to be so unreasonable."); Miller, 817 P.2d at 113 

(concluding, in answer to a certified question of law from the 

United States Court of Appeals for the Tenth Circuit, that one 

asbestos-related diagnosis does not trigger the statute of 

limitations for a distinct asbestos-related disease); Sheppard 

v. A.C. & S. Co., 498 A.2d 1126, 1134 (Del. Super. 1985) 

("[L]atent disease cases justify a change in our perception and 

application of the statute of limitations to the end that a 

plaintiff with the misfortune of contracting more than one 

asbestos-related ailment over a long period of time not be 

without a remedy for the later and generally more serious and 

inherently unknowable claims."); Eagle-Picher Indus., Inc. v. 

Cox, 481 So.2d 517, 529-30 (Fla. Dist. Ct. App. 1985) 

(concluding that, because damages for enhanced cancer risk were 

not part of plaintiff's first award, a subsequent cause of 

action for damages due to cancer caused by asbestos was not 

barred); Va Salle v. Celotex Corp., 515 N.E.2d 684, 687 (Ill. 

App. Ct. 1987) ("To preclude recovery based upon the statute of 

limitations under these factual circumstances would . . . mean 
38 

that at some past moment in time, unknown and inherently 

unknowable even in retrospect, [plaintiff] was charged with 

knowledge of [asbestos-originating lung cancer].") (internal 

quotation marks and citations omitted); Wilber v. Owens-Corning 

Fiberglass Corp., 476 N.W.2d 74, 78 (Iowa 1991) ("The 

manifestation of asbestosis does not trigger the running of the 

statute of limitations on all separate, distinct, and latermanifested diseases which may have stemmed from the same 

asbestos exposure."); Smith v. Bethlehem Steel Corp., 492 A.2d 

1286, 1296 (Md. 1985) ("[T]he starting point for Pierce was the 

medical evidence that lung cancer was a latent disease, separate 

and distinct from asbestosis. . . . Our review of Pierce

convinces us that the fact that the claimant there had not 

previously sued in tort for damages for asbestosis was not a 

factor material to the holding."); Larson v. Johns-Manville 

Sales Corp., 399 N.W.2d 1, 9 (Mich. 1986) ("The alternatives 

facing this Court are . . . to force all asbestosis victims 

. . . to sue for the possibility of contracting cancer, or . . . 

to allow these victims to wait until the discoverable appearance 

of cancer before bringing suit. The latter alternative seems to 

us infinitely preferable."); Ayers v. Township of Jackson, 525 

A.2d 287, 300 (N.J. 1987) ("[N]either the statute of limitations 

nor the single controversy rule should bar timely causes of 

action in toxic-tort cases instituted after discovery of a 
39 

disease or injury related to tortious conduct, although there 

has been prior litigation between the parties of different 

claims based on the same tortious conduct."); Fusaro v. PorterHayden Co., 548 N.Y.S.2d 856, 860 (N.Y. Sup. Ct. 1989) 

("Implicit or explicit recognition of the second injury concept 

is evident in the rulings and jury charges of the Federal 

District Courts and State Courts in this jurisdiction as well. 

Juries . . . may not compensate asbestosis victims for increased 

risk of cancer because there is insufficient probability that 

the disease will develop. The language of these charges and 

rulings suggest that future actions will not be barred should 

cancer actually occur.") (internal citations omitted); Potts v. 

Celotex Corp., 796 S.W.2d 678, 685 (Tenn. 1990) (concluding, in 

response to a certified question of law from the United States 

Court of Appeals for the Sixth Circuit, that "discovery of a 

separate, independent, and distinct disease related to asbestos" 

does not constitute "discovery of other separate, independent, 

distinct, and latent asbestos-related diseases," and that such 

latent diseases are not barred by the statute of limitations by 

virtue of the prior discovery of a distinct disease.); Sopha v. 

Owens-Corning Fiberglas Corp., 601 N.W.2d 627, 630 (Wis. 1999) 

("We hold that a person who brings an action based on a 

diagnosis of a non-malignant asbestos-related condition may 
40 

bring a subsequent action upon a later diagnosis of a distinct 

malignant asbestos-related condition."). 

Judicial tribunals across the nation have faced a common 

question of equity: how to provide proper remedies for a 

generation of workers who are facing devastating diagnoses of 

latent asbestos-related diseases not previously accommodated by 

our legal system. In the absence of a clear legislative 

mandate, this Court has a duty to clarify how our long-standing 

principles of law apply to victims of asbestosis and 

mesothelioma. Our common law cause of action principles provide 

for distinct causes of action, and such an outcome supports both 

equity and judicial economy. 

For these reasons, I would answer the certified question of 

law in the affirmative with respect to alternative [I] and in 

the negative with respect to alternative [II]. 

I respectfully dissent.