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For Whom the Bell Does Not Toll: Application of the Single-Disease Rule to Asbestos Claims Brought Under General Maritime Law

Journal of Civil Litigation, Vol. 32, No. 4 (Virginia Association of Defense Attorneys)

For several decades, Virginia counted itself among a minority of jurisdictions continuing to follow the “single-disease” rule in asbestos cases. Under the single-disease rule, a claimant alleging asbestos injuries is required to prosecute their claim for all injuries – including future injuries such as malignancies which may have not yet manifested themselves – at the time of an initial asbestos-related diagnosis (often evidence of fibrotic scarring of the lungs).[1] As recently as 2013, the Supreme Court of Virginia in Kiser v. A.W. Chesterton Co., reaffirmed the single-disease rule as the law of Virginia.[2] In so holding, the Court defined the single-disease rule as the common law rule.[3] 

Effective July 1, 2020, the General Assembly of Virginia amended Va. Code §8.01-249(4) to change Virginia law so that the Commonwealth now applies the so-called “two-disease” (or “separate disease”) rule. Under Virginia’s version of this rule, asbestos plaintiffs can file seriatim claims for non-malignant asbestos injuries and then later seek recovery for malignancies in the event one develops. While this amendment to Section 249(4) represents a significant change in Virginia law, less clear is the impact this amendment will have on asbestos litigation in Virginia. 

This is because for approximately the last 20 years, asbestos cases tried in the Circuit Court for Newport News (the epicenter for such litigation in Virginia) have been prosecuted under maritime law.[4] 

After a discussion of the current state of maritime law’s application to Virginia asbestos litigation, the balance of this article examines the general maritime law’s continued adherence – based upon decisions from federal circuit courts (the Fifth, Sixth, and Ninth) addressing the issue – to the single-disease rule along with an overview of the arguments that a defendant can anticipate from a tort claimant seeking to avoid its application. [5]

A. Recent Developments in Federal Case Law on Maritime Jurisdiction in Virginia

It was in the mid-aughts that the Supreme Court of Virginia first cleared the way for the pursuit of asbestos claims under maritime law in a pair of cases, Garlock Sealing Technologies, LLC v. Little,[6] and John Crane, Inc. v. Jones.[7] Both Little and Jones have been the subject of scrutiny in the past.[8] Now a pair of recent cases out of the Eastern District of Virginia – maritime cases are, after all, governed by federal law – renew the question of whether asbestos claims are properly brought by reference to maritime law. 

1. The Gilstrap Decision

In Gilstrap v. Huntington Ingalls, Inc.,[9] the court analyzed an asbestos tort claim brought on behalf of a Navy sailor who claimed exposure to a wide variety of asbestos-containing products at Newport News Shipbuilding and Dry Dock Company (the “Shipyard”). Casting the broadest net possible, the claimants in Gilstrap alleged that the activity giving rise to the injury included the “researching, manufacturing, fabricating, designing, modifying, labeling, assembling, distributing, leasing, buying, offering for sale, supplying, selling, inspecting, servicing, installing, contracting for installation, repairing, marketing, warranting, re-branding, manufacturing for others, packaging, and advertising a certain substance, the generic name of which is asbestos, and other products containing said substance.” Against this factual backdrop, the Gilstrap claimants asserted maritime jurisdiction because the injuries bore what they claimed were (and Little and Jones previously found to be) a “significant relationship to traditional maritime activities.” The district court disagreed, raising sua sponte the issue of whether maritime jurisdiction extended over the claimants’ asbestos suit. 

In doing so, Gilstrap began with the U.S. Supreme Court’s maritime jurisdiction test articulated in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.[10] Under that test, a party seeking to invoke federal admiralty jurisdiction over a tort claim must satisfy conditions both of “location” and of “connection” with maritime activity. The location test requires a determination of whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. The connection test raises two issues. First, a court must assess the general features of the type of incident involved to determine whether the incident has a “potentially disruptive impact on maritime commerce.” Second, a court must determine whether the general character of the activity giving rise to the incident “shows a substantial relationship to traditional maritime activity.”

Finding that the claimant satisfied the location prong (because the allegation was to asbestos exposure on the water) and the first element of the connection prong (the “potentially disruptive impact” inquiry), Gilstrap turned its attention to the second element of Grubart’s connection prong – the “substantial relationship” prong – and its discussion of the purposes behind application of maritime law’s specialized rules in a given case:

the law of admiralty has evolved over many centuries, designed and molded to handle problems of vessels relegated to ply the waterways of the world, beyond whose shores they cannot go. That law deals with navigational rules – rules that govern the manner and direction those vessels may rightly move upon the waters. When a collision occurs or a ship founders at sea, the law of admiralty looks to those rules to determine fault, liability, and all other questions that may arise from such a catastrophe. Through long experience, the law of the sea knows how to determine whether a particular ship is seaworthy, and it knows the nature of maintenance and cure. It is concerned with maritime liens, the general average, captures and prizes, limitation of liability, cargo, damage, and claims for salvage.[11]

Thus, Gilstrap explained that the purpose of this “substantial relationship” inquiry is to determine whether the reasons for applying special admiralty rules – which exist only to confront issues that are unique to the maritime context – apply in asbestos cases. Answering that question in the negative, the court held that the second element of Grubart’s connection test was not satisfied because “asbestos work has no traditional maritime function …[n]or is asbestos work a uniquely maritime issue or activity.” The court reasoned that although the decedent claimed exposure to asbestos aboard a ship, the ship’s involvement was “at most tangential to the nature of his tort claims and has no effect on the character of those claims. These claims would be exactly the same if he had been exposed to asbestos during construction or repairs to buildings on land.”[12] 

In short, the court held that “the general activity giving rise to the claimant’s injury was unrelated to traditional maritime activity,” and resolution of such a claim does not “rely on the ‘long experience of the sea’ to decide the issues in” an asbestos case.[13] Accordingly, Gilstrap concluded that Virginia law – not the special rules of admiralty – applied to the plaintiffs’ claims. 

2. The Mullinex Decision

A little more than four months after Gilstrap was decided, the same court handed down its decision in Mullinex v. John Crane, Inc.,[14] another asbestos suit brought by a Navy sailor for asbestos exposures allegedly experienced onboard ships. Rather than suing a shipyard as in Gilstrap, the claimant in Mullinex sued a company he alleged supplied some of the products that were used aboard his ships docked at a shipyard. When the defendant challenged the exercise of maritime jurisdiction and cited Gilstrap, the court in Mullinex found Gilstrap “distinguishable” because: (i) the defendant in Mullinex sold components that were “necessary” for Naval operations; and (ii) the claimant in Gilstrap alleged “[e]xclusively land-based asbestos exposure.”[15]

Taking these in reverse order, Mullinex incorrectly described the exposures in Gilstrap as exclusively land based. In fact, the court in Gilstrap found that the claim satisfied the location prong of Grubart expressly because “[t]he injuries occurred aboard the ship while it was in a drydock,” and that repairs taking place “in a dry dock are deemed not to occur on land.”[16] As for the “necessity” of the components (gaskets) supplied by the defendant in Mullinex, they are not (and could not be) any more necessary than the service supplied by a shipyard in the construction, repair, or overhaul of vessels. That is why shipyards have long been recognized as traditional maritime defendants.[17] 

Yet in the context of a suit arising from exposure to products containing asbestos that were used by a shipyard in repairing Navy vessels – including the sort of gaskets referenced by the court in Mullinex – the Gilstrap decision found that “asbestos work has no traditional maritime function.” It was also equally true in Mullinex that, borrowing the language from Gilstrap, the ship’s involvement was “at most tangential” to the nature of the claim and had no effect on the character of those claims. In other words, the claim in Mullinex was the same if he had been exposed to asbestos during construction or repairs to buildings on land.

As the preceding discussion reveals, there is no meaningful way to distinguish the two claims at issue in Gilstrap and Mullinex. The reason is simple: they are in substance the same claim – a product liability suit brought on behalf of a former Navy sailor claiming exposures to asbestos-containing products while serving aboard fighting ships. What they ultimately represent are differences in judicial opinions as to the proper scope of maritime jurisdiction over asbestos claims. Which decision is correct will have to be decided at some point through federal appellate review.[18] Assuming for present purposes the application of maritime law, the remainder of this article addresses application of the single-disease rule in such cases involving alleged asbestos exposure.[19] 

B. Application of the Single-Disease Rule Under Maritime Law in the Federal Circuit Courts

The general maritime statute of limitations, codified at 46 U.S.C. § 30106, provides that “[e]xcept as otherwise provided by law, a civil action for damages for personal injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose.” Prior to enactment of this statute in 1980, maritime tort claims were governed by the equitable doctrine of laches.[20] Thus, the adoption of Section 30106 represented a substantial change in the maritime law. As the Supreme Court recently explained:

When Congress enacts a statute of limitations, it speaks directly to the issue of timeliness and provides a rule for determining whether a claim is timely enough to permit relief … The enactment of a statute of limitations necessarily reflects a congressional decision that the timeliness of covered claims is better judged on the basis of a generally hard and fast rule rather than the sort of case-specific judicial determination that occurs when a laches defense is asserted.[21]

1. The Common Law Rule of Indivisible Injury

With enactment of a statute of limitations also comes the application of well-established rules of statutory construction. Of particular importance here, the Supreme Court has explained in a maritime case that “courts may take it as a given that Congress has legislated with an expectation that the common law principle will apply except when a statutory purpose to the contrary is evident.”[22] 

Applying those rules here to the issue of when a maritime tort “arises,” the Supreme Court stated nearly a century ago – in a maritime case – that it is indeed the well-established, common law rule that a claimant suffers “a single wrongful invasion of a single primary right of the plaintiff, namely, the right of bodily safety, whether the acts constituting such invasion were one or many, simple or complex.”[23] In short, “the cause of action [is] one and indivisible.”[24] While Congress has made clear in maritime statutes that it knows how to expressly deviate from this common law principle when it so chooses, it did not do so in Section 30106.[25] 

This common law rule has been consistently applied by the three federal appellate courts (the Fifth, Sixth, and Ninth Circuits) addressing whether the indivisible cause of action applies to different maritime injuries arising out of the same chemical exposures. Notably, these courts have unanimously held that the accrual of a tort cause of action includes all of the injuries that the plaintiff did – or might in the future – experience. 

2. The Federal Circuit Opinions

In Hagerty v. L&L Marine Services, Inc., the claimant alleged exposure to a variety of chemicals (benzene, toluene, and xylene) while working aboard ships.[26] He complained of dizziness, leg cramps, and stinging in his extremities, as well as a fear of developing cancer in the future. After holding that the plaintiff had stated a cause of action stemming from his exposures, the court of appeals undertook a discussion of the categories of damages that a plaintiff was required under maritime law to seek in his suit. Even though the plaintiff had not yet been diagnosed with cancer, and putting above the discussion an all-caps heading entitled “THE SINGLE CAUSE OF ACTION RULE,” the Fifth Circuit explained that:

The traditional tort rules may be restated. A tortious cause of action accrues when the victim suffers harm caused by the defendant's wrong. The injury or harm … may be latent and not manifested and discovered until some later date. When the fact of the injury does occur, if discovered by the victim, the cause of action accrues. The victim is then entitled to sue for his damages, past and present, as well as his probable future damages, and limitation also begins to run on the time within which suit may be instituted. The victim is entitled to only one cause of action and, if his injuries subsequently worsen, he has no further opportunity for recompense.[27]

Applying these principles to the maritime case before it, the Fifth Circuit in Hagerty explained that the claimant “could not … have postponed this suit … because, having suffered some injury, he was forced to sue.” In fact, “[a] plaintiff, if suffering any injury, is forced to seek cancer damages although the extent of those damages is yet highly speculative.” [28] While it lamented that this was the rule, the appellate court explained that it was bound to apply the law as it exists unless Congress revisited the issue. Despite having been decided 30 years ago, Congress has never modified Hagerty.[29]

The same conclusion was reached by the Sixth Circuit one year later in another maritime cancer case, Hicks v. Hines, Inc.[30] There, the plaintiff alleged exposure to various chemicals while working for a number of barge companies between 1954 and 1967. Approximately six years after his last exposure, the plaintiff began experiencing vision problems. Approximately 12 years after his last exposure, he went blind. Then, in 1983, he was diagnosed with bladder cancer, for which he filed suit against the barge companies. The district court dismissed the claim as time-barred under the three-year statute of limitations applicable to maritime torts. 

Affirming the dismissal of the plaintiff’s cancer claim under maritime law, the Sixth Circuit held that plaintiff was required to sue for both existing and potential damages at the time his cause of action accrued. The court of appeals concluded that the plaintiff’s cause of action accrued, and therefore his statute of limitations for his cancer claim began to run, in 1979 when he first lost his vision. Because the plaintiff did not institute his suit within three years of that event, his suit for cancer was time-barred. 

Most recently, the Ninth Circuit reached the same conclusion in Roberts v. Exxon Corp.[31] There the claimant alleged that he suffered injury as a result of exposure to chemicals during cleanup after the Exxon Valdez oil spill. The plaintiff began experiencing dizziness, ear infections, and several other symptoms. However, he did not file suit until years later, after he had been diagnosed with a brain injury. Finding that the claimant’s suit was time barred under maritime law, and relying in part on the Sixth Circuit’s decision in Hicks, the Ninth Circuit explained that “[e]ven if the full extent of the harm has not become manifest, the plaintiff’s cause of action accrues as soon as he realizes: (1) that he was injured; and (2) the reasonable cause of his injury.”[32] Thus, “although he may not have been aware of the extent of his injury, he knew that he was suffering some physical injury and that it was directly related to his employment.”[33] 

C. Arguments by Plaintiffs Seeking to Avoid the Single-Disease Rule

Notwithstanding these consistent holdings, a defendant asserting application of the single-disease rule under maritime law can expect tort plaintiffs to mount the following arguments (and cite the proceeding cases) in response. First, because it is a Supreme Court case, claimants will invoke Norfolk & Western Railway v. Ayers, going so far as to assert that the Court in Ayers recognized that maritime law would apply the separate disease rule.[34] As discussed below, Ayers did nothing of the kind.

1. Norfolk & Western Railway v. Ayers

The issue before the Court in Ayers was not whether the single disease rule applies under general maritime law (or any other law for that matter). In fact, the case did not involve a claim for future injury at all. Instead, the issue in Ayers was whether a worker claiming asbestosis could recover for “their current injury” of fear of cancer, in the absence of a current cancer diagnosis, under the railroad laws (which are incorporated into the Jones Act, a workers compensation scheme for seamen against their employers) codified in the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60. The Court ultimately answered the question in the affirmative. In doing so, the 46-page majority opinion includes a paragraph where the Court states as follows:

Norfolk and its supporting amici assert that the asbestosis claimants’ alleged cancer fears are too remote from asbestosis to warrant inclusion in their pain and suffering awards. In support of this contention, the United States, one of Norfolk’s amici, refers to the “separate disease rule,” under which most courts have held that the statute of limitations runs separately from each asbestos-related disease … Because the asbestosis claimants may bring a second action if cancer develops, Norfolk and the Government argue, cancer-related damages are unwarranted in their asbestosis suit.[35]

This discussion makes clear that the Court is simply recounting the arguments being advanced by the petitioners and their amici. Nowhere in the majority’s discussion of this issue does the Court find that the two-disease rule applies to a claim under the Jones Act.[36] To the contrary, the Court discounted the argument, explaining that the claimants were seeking recovery for a current injury and not some future claim. In contrast, both Hicks and Hagerty discussed above expressly state that they are Jones Act cases from the circuit courts that addressed claims for future damages. 

Two other points are worth making with respect to Ayers. The Court in Ayers explained that FELA was designed “to shift part of the human overhead of doing business from employees to their employers.” Therefore, “[t]o further the Act’s humanitarian purpose,” it did away with several common-law tort defenses such as contributory negligence and assumption of the risk. It also prohibits employers from obtaining general releases from liability. No such worker protection purposes have appear in (or have been read into) Section 30106. This is no surprise, given that Section 30106 prescribes a limitations period of general application and is not directed toward workers. Accordingly, even if the Court’s predisposition in that case towards application of the two-disease rule could be divined from its mere recitation of arguments made by litigants, the distinction in objectives between FELA (and the Jones Act) on the one hand and Section 30106 on the other renders Ayers distinguishable.

But if it has any relevance to the question, the reasoning employed by the Court in Ayers supports application of the single-disease rule. In holding that the claims for fear of future cancer were available under FELA, the Court emphasized that – consistent with the principles espoused above – “common law principles are entitled to great weight in our analysis.” Importantly, the Court in Ayers went on to explain that by the time of FELA’s enactment in 1908, the “common law had evolved to encompass apprehension of future harm as a component of pain and suffering.” The same cannot be said of the two-disease rule; in fact, quite the opposite. At the time of Section 30106’s enactment in 1980, the indivisible injury rule was the common law rule.

2. Nelson v. A.W. Chesterton Co.

Plaintiffs will also point to the decision in Nelson v. A.W. Chesterton Co.,[37] where the federal district judge administering the asbestos MDL docket in Philadelphia applied the “two-disease” rule and held that causes of action for asbestosis and mesothelioma accrue at separate times. It is important to analyze the bases for the Nelson decision. First, as to the three federal circuit courts discussed above that have unanimously applied the single disease rule, Nelson cites to only two of them. Furthermore, as for those two decisions, only one (the Sixth Circuit’s decision in Hicks) is correctly cited for the holding it reached. With respect to the Fifth Circuit’s decision in Hagerty, the court in Nelson cites it for the proposition that the Fifth Circuit there “applied the separate disease rule” under maritime law. As detailed above, however, the Fifth Circuit did not apply the two-disease rule. To the contrary, while the panel in Hagerty noted its preference for the two-disease rule, it expressly reached the opposite conclusion and stated that the single-disease rule governed the plaintiff’s cancer claim under maritime law in that case. 

Second, Nelson also relies upon Wagner v. Apex Marine Ship Management Corp., a state court decision about which several points should be made.[38] As to its legal reasoning, Wagner is wholly unpersuasive in the way it deviates from the sort of uniformity required under maritime law.[39] While Wagner cites both federal appellate decisions in Hicks and Hagerty, it simply eschews their holdings in favor of what it says is the “more persuasive” two-disease rule based upon: (i) non-maritime cases; as well as (2) the dicta from Hagerty instead of the actual finding there that the single disease rule applied. Moreover, Wagner makes no reference to Roberts despite being the jurisdiction in which the Ninth Circuit is headquartered. Similarly, on its facts, Wagner is distinguishable. The court repeatedly made it a point to note that the first diagnosis at issue there was “asymptomatic,” and had resulted in “no symptoms” and “no disability” of any kind to the plaintiff. Those are a far cry from the typical asbestos case.

In sum, a review of the opinion in Nelson reveals why it is unpersuasive.[40] Because it is a decision from the MDL, defendants in asbestos litigation should be prepared to enumerate the many problems with the decision in Nelson.

3. Goodrich v. John Crane, Inc.

Piggybacking off Nelson is a recent unpublished 2018 Order from a Virginia federal court in Goodrich v. John Crane.[41] Goodrich is most notable for its brevity, relying exclusively on Nelson while adding little legal analysis to the issue. What analysis it does provide over the mere three pages dedicated to the discussion proves to be incorrect.[42] For example, the district court there observed that neither the Fifth Circuit’s decision in Hagerty nor the Sixth Circuit’s decision in Hicks “dealt with … the one-disease or two-disease rule.” Even the MDL’s decision in Nelson acknowledges that this is incorrect, explaining that both Hagerty and Hicks certainly “dealt” with the issue.[43] 

Finally, even though Hagerty and Hicks both involved latent cancer claims stemming from exposures to a wide variety of different chemicals, Goodrich implies that cases involving latent cancer claims from asbestos (a mineral) are different. It would seem passing strange, in the face of the U.S. Supreme Court’s call for uniformity in the application of maritime law, if determination of the application of the one-disease/two-disease-rule to a latent disease claim turned on whether the exposure was to a chemical or a mineral. 

*          *          *          *          *          *

Companies defending against suits brought by maritime asbestos claimants, who have previously been diagnosed with an asbestos-related injury, should give serious consideration to mounting a statute of limitations defense. Though the case law is split, federal appellate cases consistently support such an argument while lower court decisions to which plaintiffs will cite are vulnerable in their analysis and misstatement of the maritime standard established by those earlier unanimous appellate cases.

Brian J. Schneider is a partner with Hawkins Parnell & Young LLP, focusing his practice on complex product liability and toxic tort litigation. Mr. Schneider also sits on the Board of Directors for the Litigation Section of the Virginia State Bar. As a VADA member, Mr. Schneider formerly chaired both the Appellate Advocacy and Legislative Affairs sections of the VADA. He currently serves on the Board of Editors for the Journal of Civil Litigation. He is a frequent speaker and writer on the intersection of maritime law and product liability claims.

[1] Va. Code §§8.01-230, 249 (2019); Joyce v. A.C.& S., Inc., 591 F. Supp. 449, 452 (W.D. Va. 1984); Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 200 (1981).

[2] 285 Va. 12, 736 S.E.2d 910 (2013). Kiser was the Supreme Court of Virginia’s answer to a certified question from the Third Circuit Court of Appeals. Recognizing that Virginia’s highest court was the correct forum in which to answer the question, the Third Circuit in its certification order observed (incorrectly) that Virginia’s continued adherence to the single-disease rule was “subject to doubt.” Kiser v. A.W. Chesterton Co., No. 11-1986, ECF No. 003110876734 at 6 (3d Cir. Mar. 6, 2012) (on file with author). The Supreme Court of Virginia’s opinion in Kiser effectively affirmed the opinion of the federal asbestos multi-district litigation (MDL) court in Philadelphia – the case was transferred there from the Western District of Virginia – granting summary judgment to a group of defendants under the single-disease rule. 770 F. Supp. 2d 745 (E.D. Pa. 2011). Mr. Schneider argued the cause on behalf of the defense group before the MDL.

[3] Virginia like other states has a common law reception statute. See Va. Code §1-200 (“The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.). This statute traces its origins back to the instructions of the Virginia Company in 1609, the private British corporation that established the Virginia colony. See W. Hamilton Bryson, English Common Law in Virginia, 6 J. Legal Hist. 249, 254 n.2 (1985) (instructing that litigation was to be settled in the colony “as near to the common laws of England and the equity thereof as may be”); accord the Honorable D. Arthur Kelsey, The Commonwealth’s Common Law, 40 VBA Journal 26 (Winter 2013-14). 

[4] As for cases governed by Virginia law, the combination of the single-disease rule with a resulting statutory requirement that asbestos suits could not be dismissed for inactivity, Va. Code §8.01-335(D), resulted historically in a large volume of filings in Newport News over the years. It is anticipated that adoption of the two-disease rule will materially decrease the number of suits filed.

[5] Application of Virginia’s two-disease rule – a stark contrast to the admiralty’s single-disease rule – would work the sort of “material prejudice” into the “characteristic features” of maritime law which precludes (that is to say it pre-empts) application of the state law rule. Chelentis v. Luchenbach S.S. Co., 247 U.S. 372, 383 (1918).

[6] 270 Va. 381, 270 Va. 381 (2005). 

[7] 274 Va. 581, 650 S.E.2d 851 (2007). 

[8] See Brian J. Schneider, “In the Wake of Devries: Revisiting the Extension of Maritime Jurisdiction Over Asbestos Claims,” Defense Counsel Journal, Vol. 86, No. 3 (IADC 2020) (hereinafter “Schneider, In the Wake of Devries”); Eric G. Reeves and Brian J. Schneider, “A ‘Little’ Problem: Turning the Tide of Maritime Jurisdiction in Virginia Product Liability Cases in the Wake of Garlock v. Little,” Journal of Civil Litigation, Vol. XXIII, No. 2 at 147 (Summer 2011) (hereafter “Reeves and Schneider, Turning the Tide”); David W. Robertson and Michael F. Surley, Recent Developments in Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh Circuits, 31 Tul. Mar. L. J. 463, 484 (2007).

[9] No. 4:19-cv-00068 (E.D. Va. Dec. 9, 2019) [ECF No. 19] (Wright Allen, J.).

[10] 513 U.S. 527 (1995). 

[11] Gilstrap at 6 (quoting Exec. Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 269-70 (1972)).

[12] Id. at 7 (quoting Oman v. Johns-Manville Corp., 764 F.2d 224, 231 (4th Cir. 1985) (en banc)).

[13] Id.

[14] No. 4:18-cv-33 (E.D. Va. Apr. 27, 2020) [ECF No. 154] (Jackson, J.). Mr. Schneider represents John Crane Inc. in the Mullinex case.

[15] Id. at 4, 7. 

[16] Gilstrap at 6 (emphasis added) (internal citations omitted).

[17] Reeves and Schneider, Turning the Tide, supra note 8, at 152-53 (and cases discussed therein regarding shipyards and ship repair companies as traditional maritime defendants). Regarding “essentiality” in the analysis of maritime jurisdiction, see Brian J. Schneider, In Re: Delaware Asbestos Litigation and the Continued Expansion of Maritime Jurisdiction Over Asbestos Claims, (DRI Sept. 19, 2012). 

[18] On this point, the earliest distinct reference to the Admiralty Court – in response to a claim of prize advanced by the King of Portugal – was in 1357. See 1 William S. Holdsworth, A History of English Law at 314 (1903); 1 Select Pleas in the Court of Admiralty at 41 (1894). Through the Middle Ages, the King’s Courts, Chancery Courts, and Admiralty Courts (ultimately becoming the High Court of Admiralty) defined and delimited the respective subject matters over which they would exercise jurisdiction. 1 Holdsworth at 316-18. In the colonies, Vice-Admiralty Courts were established to hear such matters for the crown. Erastus C. Benedict, The American Admiralty Its Jurisdiction and Practice §85 (4th ed. 1910). After the war, the earliest treatments of the issue surrounding admiralty jurisdiction in America addressed these British roots – borne of “jealousy” and “misapprehension” – and found them overly restrictive as compared to what the Framers had intended through Article III, Section 2 of the Constitution. See De Lovio v. Boit, 7 F. Cas. 418, 443 (Cir. Ct. D. Mass. 1815) (Story, J.). Subsequently, commerce began to transition from sail to carriage, moving landside and becoming less waterborne. At the same time, the U.S. Supreme Court’s test for maritime jurisdiction became more exacting than that discussed in the age of sail. See Schneider, In the Wake of Devries, supra note 8, at 3-6. So much so that every federal circuit court that has addressed the modern approach to maritime jurisdiction in America has concluded that asbestos cases do not fall within the scope of the admiralty’s specialized purposes. See Reeves and Schneider, Turning the Tide, supra note 8, at 153-55. Judge Wright-Allen’s decision in Gilstrap is consistent with this line of decisions. 

[19] Because this article is addressed to substantive maritime law, it expresses no view on the circuit court’s holding in Ferrell v. 3M Co., 2016 Va. Cir. LEXIS 228 (Va. Cir. Dec. 19, 2016) (Newport News) (applying the single-disease rule under Virginia law in a maritime case). 

[20] Giddens v. Isbrandtsen, 355 F.2d 125, 126 (4th Cir. 1966). Laches was “a defense developed by courts of equity to protect defendants against unreasonable, prejudicial delay in commencing suit.” SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S.Ct. 954, 960 (2017).

[21] Aktiebolag, 137 S.Ct. at 960. 

[22] United States v. Texas, 507 U.S. 529, 534 (1993).

[23] Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 321 (1927).

[24] Id. at 325; accord Kiser, 285 Va. at 21-22, 736 S.E.2d at 916 (citing Phillips referring to the single disease rule as the “common law” rule).

[25] 33 U.S.C. § 923(a) (Longshoreman and Harbor Workers’ Compensation Act stating that “the deputy commissioner or Board shall not be bound by common law…”). For other statutory examples of such express disclaimer of common law principles by Congress, see 5 U.S.C. § 8124(b)(2) (workers’ compensation law that “the Representative of the Secretary is not bound by common law …”); 12 U.S.C. § 1715z-17 (mortgage insurance law that “[m]ortgages insured pursuant to this section … shall not be subject to … common law…”); 17 U.S.C. § 301(a) (copy right law that “no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.”).

[26] 788 F.2d 315 (5th Cir. 1986).

[27] Id. at 316 (emphases added); accord Crisman v. Odeco, Inc., 932 F.2d 413, 415 (5th Cir. 1991) (stating that “when an event occurs that should put a plaintiff on notice to check for injury, this is sufficient to start the prescriptive period running. This is true even if the event results in only minor physical effects.”) (emphasis added).

[28] Hagerty, 788 F.2d at 320.

[29] See White v. Mercury Marine, 129 F.3d 1428, 1434-35 (11th Cir. 1997) (observing with respect to another statute that “the Supreme Court practically invited Congress to set things right if the Court had misjudged the legislative intent on the matter … Nearly two decades have passed, and Congress has not exercised that power”).

[30] 826 F.2d 1543 (6th Cir. 1987).

[31] No. 97-35518, 1998 U.S. App. LEXIS 21489 (9th Cir. Aug. 28, 1998).

[32] Id. at *3-*4.

[33] Id. at *4.

[34] 538 U.S. 135 (2003).

[35] Id. at 152-53 (emphases added).

[36] As observed by the circuit court in Ferrell, “Ayers was not a federal maritime case,” nor did that decision “render any holding addressing the two-disease rule’s applicability in … maritime law cases.” Ferrell v. 3M, 2016 Va. Cir. LEXI 288 at *8 (Va. Cir. Dec. 19, 2016) (Newport News). Then noting the further discussion in the dissent in Ayers, the court in Ferrell made clear that – whatever else can be said about it –Ayers was informed by state law and not federal law. Id.

[37] 2011 U.S. Dist. LEXIS 142970 (E.D. Pa. Oct. 27, 2011).

[38] 83 Cal. App. 4th 1444 (Cal. App. 2000).

[39] Miles v. Apex Marine Corp., 498 U.S. 19, 28-32 (1990).

[40] While this alone is reason to disregard the case, it is by no means the only reasons. As the Newport News Circuit Court in Ferrell also explained, Nelson “consistently make[s] reference to, and rel[ies] upon, the precise application of state law for the purpose of resolving statute of limitations issues under federal maritime law.” Ferrell, 2016 Va. Cir. LEXIS 288 at *22.

[41] No. 4:17-cv-0009 (E.D. Va. Jan. 18, 2018).

[42] The economy with which the court disposed of the issue is noteworthy because the parties – both having sought summary judgment on the statute of limitations – submitted combined briefing totaling just short of 100 pages. A comparison of those briefs (on file with the author) with the court’s order reveals no treatment by the court of the arguments raised in the briefing.

[43] See Nelson, 2011 U.S. Dist. LEXIS 142969 at *10 n.1 (counting Hagerty and Hicks as among those cases to address the issue).