In 2008, the Supreme Court of Alabama decided Griffin v. Unocal Corp., 990 So. 2d 291 (Ala. 2008). In that opinion, the Court overruled Garrett v. Raytheon Co., 368 So. 2d 516 (Ala. 1979) and its progeny, which stood for the proposition that, when a plaintiff has been continuously exposed to a toxic substance over a period of time, his cause of action accrues, and the limitations period begins to run, on the date of his last exposure to the toxic substance. That reasoning often resulted in plaintiffs losing their causes of action based on the statute of limitations before they ever knew, or could have known, they had been injured. In overruling the Garrett line of cases, Griffin held that a cause of action does not accrue until the plaintiff’s injury from continuous toxic exposure actually manifests itself. The Griffin Court applied its holding prospectively only.
Recently, in Jerkins v. Lincoln Elec. Co., 2011 WL 2573368 (Ala. June 30, 2011), the Court applied the old rule of Garrett to a case that had been commenced before Griffin. The plaintiff in Jerkins had been exposed continuously to toxic fumes given off as a result of the use of welding rods. The plaintiff’s last exposure was not until after he filed the lawsuit, so it was clear that his claims were not completely barred under Garrett. The question was what limitation, if any, did Garrett place upon the plaintiff’s recovery? The answer the Court gave was that the plaintiff was entitled to recover only for injuries sustained during the limitations period leading up to the filing of the complaint. The Court put the burden on the plaintiff to prove which of his damages occurred during that period, and not earlier than that, rejecting the plaintiff’s rather clever argument that, because the statute of limitations is an affirmative defense, it was the defendants’ burden to prove which injuries occurred outside of the limitations period.