Court Rules Last Physical Exposure To Benzene Starts The Statute of Limitations For Wrongful Death Claim

Minnesota’s six-year “act or omission” statute of limitation for wrongful-death claims begins to run with the decedent’s last physical exposure to a toxin, and not when the harm has manifested and is causally linked to the exposure.  In Walsh v. Flint Group, Inc., A13-1771 (Minn. App. July 7, 2014) (unpublished), the heirs and next-of-kin to decedent Dean Walsh brought a wrongful death suit against various entities responsible for the manufacture of benzene.

Mr. Walsh worked as a pressman for the Star Tribune from 1966 to 2004.  He succumbed to multiple myeloma in June 2009.  On June 25, 2012, Walsh’s heirs brought suit and alleged his death was caused by occupational exposure to carcinogenic ink (benzene).

Defendants moved for judgment on the pleadings, arguing plaintiff did not file suit until more than six years after Mr. Walsh’s last exposure to defendants’ products.  The Wrongful Death Act,  Minn. Stat. § 573.02, provides a wrongful death action “may be commenced three years after the date of death provided that the action must be commenced within six years after the act or omission.”  The district court agreed, holding plaintiff’s action was time-barred by section 573.02.

On appeal, plaintiff claimed the asbestos (or insidious toxin) exception in DeCosse v. Armstrong Cork Co., 319 N.W.2d 45 (Minn. 1982), applied and the statute of limitations did not begin until the disease manifested itself and was causally linked to defendants’ products.

The Court found the DeCosse exception did not apply, and reasoned the exception in DeCosse was premised on the asbestos manufacturers’ fraudulent concealment of the harmful nature of asbestos.  Further, the Court noted DeCosse recognized the language of the statute “presents the possibility that a wrongful death action could expire before death by limiting the bringing of action to six years after the act or omission.”  Based on the “very narrow” exception in DeCosse and because last “act or omission” occurred more than six-years before filing the complaint, plaintiff’s wrongful death suit was properly dismissed.

This case is significant for its limitation of the DeCosse exception.  Wrongful death actions must be brought within six-years of the last physical exposure, or risk being time-barred.  We will monitor this case on appeal and other decisions impacting wrongful-death suits.  If you have any questions about this, or any other matter, please contact us.