|Pilgrim Nuclear Station, Plymouth, Mass. (by NRCgov, CC BY-NC-ND 2.0).|
Whereas the time limit of a statute of limitations runs from the time a would-be plaintiff becomes or should become aware that he or she has suffered an injury, a statute of repose sets a hard deadline contingent on an objectively verifiable event, irrespective of the plaintiff's experience. Massachusetts law has a statute of repose, Mass. Gen. L. ch. 260, § 2B, that is generous to the construction industry, relative to other states' laws. When personal injury arises from improvement to real property, tort claims are barred six years after the improvement is opened to use.
Plaintiffs in some toxin claims have trouble navigating statutes of limitations, because litigants dispute when an ill plaintiff should have realized that the illness was consequent to exposure. Suing and non-natural causation are not necessarily the first thoughts of a patient diagnosed with cancer. But mesothelioma victims often surmount statutes of limitations hurdles, because the disease has a long latency period, and then, as in Oliver's case, manifests onset and death in short order. Statutes of repose then become problematic in cases arising from construction exposures.
|Piping in turbine building at Russian nuclear power plant, 1986|
(RIA Novosti archive, image #447414, by Petrouhyn, CC-BY-SA 3.0).
Contingent on objectively verifiable events, statutes of repose tend to be unforgiving of lapses in time. The SJC observed that various statutes of repose in Massachusetts have not yielded in prior cases, even upon a defendant's intentional wrongdoing or fraudulent concealment of danger, or a victim's mental illness or ongoing medical treatment. The statute of repose for medical malpractice contains an exception in the event of a foreign object left in a person's body, so, the SJC reasoned, the legislature knows how to make an exception when it wants to. The statute of repose in construction is "ironclad."
|Associate Justice Cypher|
In a footnote, the court added:
The plaintiffs point out that a number of other State Legislatures have effectively exempted asbestos-related illnesses from their respective statutes of repose concerning improvements to real property. We encourage our Legislature to consider doing the same should it determine that such an exception is consonant with the Commonwealth's public policy.
The opinion in Stearns was authored by SJC Associate Justice Elspeth B. Cypher, a Pittsburgh native. In the fall 2019 semester at UMass Law School, Justice Cypher is scheduled tentatively to co-teach, with former dean Robert V. Ward, Jr., Race, Women’s Rights, Gender Identity and the Law.
Upon Oliver's death in 2016, the family asked for donations to the Mesothelioma Applied Research Foundation, in lieu of flowers.