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Griffin v. Unocal: Advent of the “Manifest Injury” Rule in Alabama Toxic Tort Law

        It has been four years since the landmark decision of Griffin v. Unocal Corp., 990 So.2d 291 (Ala. 2008) altered the landscape of toxic tort litigation in the State of Alabama.  Although Griffin’s implications are still unfolding, we have gained some insight over the past few years into what the case means for companies doing business in Alabama.

        In Griffin, the Alabama Supreme Court departed from its longstanding adherence to the “date of last exposure” rule for determining when a personal injury from toxic substance exposure “accrues” for purposes of the statute of limitations.  The Griffin Court established that an injured party’s toxic exposure claim accrues, and consequently the limitations period begins to run, “only when there has occurred a manifest, present injury.”  Id. at 293 (quoting Cline v. Ashland, Inc., 970 So.2d 755, 761 (Ala. 2007) (Harwood, J., dissenting)) (emphasis in original).  Prior to Griffin, Alabama had been unique among states in applying the standard that a plaintiff alleging personal injury from toxic exposure must file suit within two years of the date the plaintiff was last exposed to the toxic substance, regardless of when the injury was actually discovered.  See Garrett v. Raytheon Co., 368 So.2d 516 (Ala. 1979); Robert Lee Palmer, Withholding Justice from Toxic Tort Victims, 28 Am. J. Trial Advoc. 567, 569 (2005).  After Griffin, Alabama’s two-year statute of limitations begins running when a plaintiff experiences an injury “manifested by observable signs or symptoms or the existence of which is medically identifiable.”  Cline, 970 So.2d at 773 (Harwood, J., dissenting).  The Supreme Court in Griffin explicitly adopted the reasoning of Judge Harwood’s dissent in Cline. Significantly, the Court applied the new rule to prospective claims only.

        With the dramatic shift from “date of last exposure” to “manifest injury,” many observers predicted a sizable uptick in toxic tort litigation in the Alabama courts, as claims that previously would have been time-barred are now available to plaintiffs who (as is often the case) do not become aware of their injury until more than two years after their last exposure to the toxic substance.  To the extent this has been a consequence of the Court’s shift in approach, it may well reflect the unrealistic demands the “last exposure rule” had imposed on putative plaintiffs: Namely, either (a) file suit before an injury becomes apparent and risk losing due to a lack of proof, or (b) wait until an injury manifests itself, at which time the statutory limitations period may have run.  As Justice Harwood recognized, however, even as he laid the groundwork for “manifest injury,” the new approach does not come without pitfalls.  For example, absent legislative action to set a time ceiling that curbs the risk of “stale” claims, there is virtually no limit to how long after a plaintiff’s last exposure before a suit may be filed, so long as the alleged injury does not manifest itself until two years prior to the suit.  Thus, companies operating in Alabama continue to face a measure of uncertainty, even as it becomes clear that the “manifest injury” rule is here to stay.

A. David Fawal