ASBESTOS CASE DISCUSSION
Norgart v. Upjohn Co. in Brumley

Read the discussion of the Norgart v. Upjohn Co. in the appellate decision in Brumley, et. al vs. FDCC California, Inc. In this decedent asbestos cancer case, the plaintiffs appeal the lower court’s decision on the wrongful death claim filed on behalf of the widow and children and the widow’s loss of consortium.

Defendants also argue that Barrington was overruled, or at least undercut, by Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 (Norgart). In Norgart, a relation-back case decided in the more common statute of limitations context, the court cited a number of cases holding that the statute of limitations defense was “ ‘favored’ ” as well as a few, including Barrington, holding that the defense is “ ‘disfavored.’ ” (Norgart, at p. 396.) The court effectively, if politely, disapproved of this language in each cited case, holding, “Perhaps, to speak more accurately, the affirmative defense based on the statute of limitations should not be characterized by courts as either ‘favored’ or ‘disfavored.’ The two public policies identified above—the one for repose and the other for disposition on the merits—are equally strong, the one being no less important or substantial than the other.” (Ibid.) No further negative mention was made of Barrington.

As discussed above, Barrington was premised largely on (1) the similarity in nature and purpose between statutes of limitation and the three-year rule and (2) the unfair result that would occur if the relation back doctrine were not applied. While the purportedly disfavored nature of the statute of limitations defense was mentioned by the court, it was not the primary motivating force behind the decision. For that reason, while Norgart may have disapproved of one aspect of the reasoning of Barrington, it did not undercut the fundamental premises on which the court’s decision rested.

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