Phyllis Kiser v. A.W. Chesterton Co

517 F. App'x 109

• Court: Court of Appeals for the Third Circuit
• Decided: April 11, 2013
• Docket: 11-1986
• Status: Unpublished

Opinion

OPINION OF THE COURT

FUENTES, Circuit Judge:

This asbestos personal injury case came before this Court on appeal from the United States District Court for the Eastern District of Pennsylvania, which dismissed the action as time barred under Virginia law. Kiser v. A.W. Chesterton Co., 770 F.Supp.2d 745 (E.D.Pa.2011).

Recognizing that this appeal raised an important and unresolved question concerning the accrual of a cause of action for injury from a latent asbestos-related disease under the Virginia statute of limitations, on April 23, 2012 we entered an order requesting that the Supreme Court of Virginia accept certification pursuant to Rule 5:40 of the Rules of the Supreme Court of Virginia, and answer the following question of law:

Whether, under Va.Code § 8.01-249(4), a plaintiffs cause of action for damages due to latent mesothelioma is deemed to accrue at the time of the mesothelioma diagnosis or decades earlier, when the plaintiff was diagnosed with an independent, non-malignant asbestos-related disease.

The Supreme Court of Virginia accepted the certified question of law by order entered June 8, 2012. On January 10, 2013 it issued an opinion, which was filed with this court on April 3, 2013. For the reasons set forth by the Supreme Court of Virginia in Kiser v. A.W. Chesterton Co., 285 Va. 12, 736 S.E.2d 910 (2013), we hereby affirm the decision of the District Court, dismissing this action as time barred.