Public Comments for 01/22/2021 Courts of Justice - Subcommittee #2
HB2139 - Accrual of cause of action; diagnosis of latent injury or disease.
Delegate Guzman's bill, House Bill 2139, does not create liability for the manufacturer of any dangerously defective product that causes latent injuries such as cancer. But it does provide Virginia citizens with the opportunity to present a claim and to have their day in court. In Locke v. Johns-Manville Corp. (1981), the Virginia Supreme Court held that the statute of limitations for a claim of negligently induced cancer like mesothelioma begins to run as soon as any injury regardless of how slight, exists in the body. The court acknowledged that this time could be many decades prior to the diagnosis of the disease. Locke was corrected by the General Assembly in 1985 as to asbestos disease claims by defining the accrual date for asbestos cancers like mesothelioma, as the date on which the diagnosis of the disease is first communicated to the injured person. Litigation for cancer and death from latent diseases was in its infancy in the 1980s. Today, this litigation for latent disease claims is commonplace in nearly every state except Virginia because Virginia's statute of limitations for latent diseases accrues at the time when injury occurs at a cellular level, a subclinical level prior to the time of any symptoms, and long before a diagnosis can be made. This is not true in other states because the overwhelming majority have discovery rules to determine the accrual of a product liability cause of action. Virginia's unfair accrual rule creates a windfall for negligent manufacturers of dangerously defective products and a tragedy for Virginia cancer victims who lives are ruined or lost without the benefit of any legal remedy. HB 2319 corrects this longstanding inequity. I appreciate your time and thank you for your support of this bill. Sincerely, Robert R. Hatten, Esq. Patten, Wornom, Hatten & Diamonstein, L.C.
Chairman Bourne, and this Honorable Committee, I am writing to ask for your support of HB 2139, which amends Va. Code § 8.01-249, relating to the the accrual of cause of action for latent diseases. Since Locke v. Johns-Manville, 221 Va. 951 (1981), Virginians who have latent diseases caused by toxic substances and products have been held to the first injury rule of Locke. This means that the statute of limitations may run long before an individual knows that he or she has a latent disease, before it manifests any symptoms, and before a doctor has diagnosed an individual with such a disease. For example, one of my clients, is a wife and mother who used talcum powder products for decades but was not diagnosed with ovarian cancer until 2019 may be time barred from bring a claim because she stopped using talc products in 2011. Although her diagnosis of ovarian wasn't until 8 years later, her statute of limitations likely ran in 2013. There are many in the Commonwealth impacted by this unfair and unjust rule. The majority of other states have a discovery rule for latent disease claims, just as 8.01-249 already carves out for asbestos disease claims and for medical device implants in subdivisions 4, 7 and 9. The Fourth Circuit Court of Appeals recently highlighted the inequity of current Virginia law in a claim of a coal miner for black lung disease, whose claim was dismissed under this harsh rule. In Adams v. American Optical Corp., 979 F.3d 248 (2020), the court found that current Virginia law essentially operates as a get out of jail free card that prohibits those with latent or creeping diseases from getting their day in court. HB 2139 simply creates a specific fixed period of time for an individual to bring a latent disease claim, once a diagnosis of such a disease has been communicated to the individual. Individuals who bring such claims still must prove their cases - this simply allows them in the courthouse doors to bring an action within a fixed period of time. The current inequity of Virginia law needs to be fixed, and I hope that this Committee will support Delegate Guzman's bill. I appreciate your time and attention, and if permitted, am also available via Zoom to speak on this issue. Sincerely, Erin E. Jewell, Esq. Patten, Wornom, Hatten & Diamonstein, L.C. 12350 Jefferson Avenue, Suite 300 Newport News, VA 23602
HB2190 - Wrongful death; beneficiaries.
Madam Chairman and Members of the Committee, I support HB2190. Thank you.
HB2193 - Settlement agreements; staying of dismissal.
We urge that you adopt a state law that denies qualified immunity & holds police accountable.
We are concerned about lines 24-26. What does “other appropriate relief” mean? We suggest the following amendment : Delete "other appropriate relief" and insert through entry of judgment for entry of judgment for any remaining amount owed under the written settlement agreement.
HB2073 - Wrongful death statute of limitations; criminal investigations by law enforcement.
Madam Chairman and Members of the Committee, I support HB2073. Thank you.
Hi Delegate Kelly, I wrote a comment late last night for today's session on HB 2073. I wrote through this site I'm currently using. Question, How do I get a copy of my written comments? Thank you Debbie
The reason I am in favor of the bill 2073 because it allows my family and I to have fair representation. My wife was murdered on May 31, 2019 in the city of Virginia Beach at the Public Utilities building on city property. The city required my family through all the fog and emotional turmoil of losing my best friend wife and mother to my children to provide a letter of intent to seek legal recourse. I followed the rules and did so on the be half of myself and my daughters. Please take a moment and quietly put your self in my position. If your loved one had been murdered and you world been turned upside down would you not want some sort of compensation or retribution? My wife Kate was second in charge of Public Utilities and told me everything about its day to day business because that's what husband and wife's do. I know alot and certain details the city of Virginia Beach would not like you to know. They have made the investigation of the murder of my wife last way longer than it professionally should have. The Charollitsville incident took less than six months to investigate , so why is the city of Virginia Beach paying Lobbyist and delaying the findings of the Virginia Beach mass shooting? The answer is simple, they have been running the clock on me and the families to decide if we should seek legal recourse for the loss of our loved ones. Let me ask you this question how is this fair? The city is playing a game with us the victims and trust me when I tell you this it will not end well for the city and it image if the succeed in running the clock up on us. I am already in talks with other mass shooting victims from the Florida Parkland school shooting. If the city of Virginia Beach's lobbyist win over the house's decision on this matter, I am willing and ready to take this issue to a national level as well as publicating the May 31, 2019 Virginia Beach Mass shooting, I hope it does not come to this but for my daughters sake Morgan 14, Madilyn 8, Mackenzie 2, I will do everything in my power to make sure my wife Kate Nixon has not perished in vain. All I am and the families are asking for is to reset this time clock back to when I and the other families affected by this tragedy actually and physically receive the full police reports and its conclusion so we have adequate time to reflect and review the report of our loved ones murder. Let me ask you this question is it fair to take away out rights to legal recourse before the investigation reports have been finalized? My answer to this is NO! How can my family be expected to pursue any legal recourse with out the actual report in hand? Please listen to the families and victims interest and not the cities when it comes to this. The other session a certain Delegate asked the question how was this considered an emergency request? I say to you this is an emergency request, with all of the delays on theis investigation the city of Virginia Beach has left us less than 6 months to legally respond to the letter of intent I filed. I need the final report and time for me to analyze what has been presented to me. I am not being afforded that appropriate time in the current restrictions. I implore you to do the right thing not just for me and my family but also the other families that lost their Mothers, Fathers, Sons,and Daughters that horrendous day. Thank you for taking the time to read and review my request on the behalf of Kate Nixon and her daughters.
Delegates, Although I spoke during the subcommittee last week, I would like to reemphasize the importance of HB 2073. Families of May 31st mass shooting victims have been treated without respect and unfairly since the May 31st murders. We deserve the opportunity to justice. Virginia Beach has taken advantage of the COVID pandemic and not allowing families ANY information to move towards any form of justice. They bought time with the Heintze team, their own police investigation and COVID enabled more time to run out for Statute of Limitations. Please consider this Bill for amendment to give families the opportunity of time we and all victims' families are entitled to. Families have been pushed aside and victimized for the city of Virginia Beach's best interests. Families would just like to have our given right to justice. It's been an emotional rollercoaster. Day after day. Calling the city for information, transferred from one person to another. Spoken to us rudely as if we are nonessential to them, the city. We have been lied to and avoided. Prevarication is what Virginia Beach is using towards families Sincerely, Debbie Langer Borato