Plaintiffs’ Federal Court Action Time-Barred After Choice of Law Analysis

U.S. District Court for the Western District Court of New York, April 6, 2021

In this asbestos action, plaintiffs John and Joyce Castro commenced this lawsuit against several talc defendants in February 2019. As per their interrogatory responses, the plaintiff was diagnosed with mesothelioma on February 29, 2016. As to defendant Revlon, the plaintiff’s alleged indirect exposure to one of Revlon’s talcum powder products occurred only in Virginia.

Revlon filed a motion for summary judgment, arguing that the plaintiffs’ claims are time-barred under New York law. Specifically, Revlon contends that Virginia’s substantive law applies to this matter as the alleged wrong occurred in Virginia. Notably, Virginia has a two-year statute of limitations. The court agreed that the plaintiffs’ claims are time-barred, but did not agree with Revlon’s analysis. First, the court determined that a federal court sitting in diversity should apply the statute of limitations of New York. Specifically, “[u]nder New York law the statute of limitations is considered procedural, and therefore New York will apply its own statute of limitations even though the injury which gave rise to the action occurs in another state.” Stafford v. Int’l Harvester Co., 668 F.2d 142, 147 (2d Cir. 1981). However, NY CPLR § 202 provides that “when a nonresident plaintiff sues upon a cause of action that arose outside of New York, the court must apply the shorter limitations period, including all relevant tolling provisions, of either: (1) New York; or (2) the state where the cause of action accrued.” Stuart v. Am. Cyanamid Co., 158 F.3d 622, 627 (2d Cir. 1998) (emphasis added). As such, the court used Virginia’s two-year statute of limitations, rather than New York’s three-year statute of limitations.

Under Virginia law, the cause of action in asbestos matters accrues “when the diagnosis of mesothelioma is first communicated to the person by a physician.” Here, the plaintiffs’ claims accrued when the plaintiff learned of his mesothelioma diagnosis in February 2016. As per Virginia’s statute of limitations, the plaintiffs must have filed their lawsuit before February 2018 to be timely. Therefore, since the plaintiffs failed to timely file their lawsuit, their claims are time-barred. Magistrate Judge Michael Roemer recommended that District Court Judge Sinatra grant Revlon’s motion for summary judgment.

Author’s Note: Parties may file objections to the Report and Recommendation within fourteen days of service of the Report and Recommendation.  

Read the full decision here.