By Michael Bielawski

The Vermont Supreme Court has determined that the now-defunct nuclear power plant Vermont Yankee cannot be legally held accountable for a cancer death occurring more than 2-decades later.

The decision deals with the expiration of the repose period, which is similar in concept to statutes of limitation or a limit to how long a person can claim injury from a past event.

The ruling states, “Plaintiff alleged that defendants caused the asbestos exposure that led to her mother’s mesothelioma and subsequent death. The civil division granted summary judgment to defendants based on the twenty-year statute of repose under 12 V.S.A. § 518(a), finding the ‘last occurrence’ to which her mother’s mesothelioma was attributed fell outside the repose period.”

The document explains some key findings that led to their decision which establish that there was likely asbestos exposure, but it occurred a long time ago.

It states, “Plaintiff’s mother, Shirley Hilster, was exposed to asbestos through her husband, who worked as a pipefitter and regularly came home with asbestos-contaminated clothes. For approximately eighteen months between 1971 to 1972, Hilster’s husband worked for defendant Vermont Yankee Nuclear Power Corp., where defendant Clifton Associates had installed asbestos. Hilster’s husband retired from pipefitting in 1995.”

It states that about a quarter-century passed before Hilster developed the cancer. It states, “Roughly twenty-five years after her husband’s retirement, in July 2020, Hilster was diagnosed with mesothelioma, a cancer caused by asbestos exposure. Hilster died from mesothelioma three months later.”

Ultimately the gap between the cancer and her husband’s time at the plant exonerated the defendants. Vermont 12 V.S.A. § 518(a) states, “An action to recover for ionizing radiation injury or injury from other noxious agents medically recognized as having a prolonged latent development shall be commenced within three years after the person suffering the injury has knowledge or ought reasonably to have knowledge of having suffered the injury and of the cause thereof, but in no event more than 20 years from the date of the last occurrence to which the injury is attributed.”

AsbestosClaims.law also covered this case. They again explained that the time it took for the lawsuit to come forth was too long after the exposure to the asbestos at Vermont Yankee.

“Vermont’s statute of repose requires lawsuits within twenty years of the ‘last occurrence’ to which the asbestos-related disease can be attributed. Testimony traced Shirley Hilster’s last exposure to 1995, but her daughter didn’t file suit until 2021,” they wrote.

Legal News Line came to a similar conclusion in their coverage of the case.

“The court on May 10 held the state’s 20-year statute of repose does not violate the state constitution, finding Shirley Ann Carpin’s lawsuit over the mesothelioma death of her mother was filed too late,” they wrote.

The Asbestos Claims report also explained more about what a repose period is. It states, “The statute of repose is a hard lawsuit cutoff that applies to construction defect cases. Usually, the SOR cuts off these cases after a certain number of years, regardless of when victims discovered their illnesses. The theory is that, after a certain number of years, products break down and cause injury. Manufacturers shouldn’t be responsible for such inevitable breakdown-related injuries.”

They get into how this is different from a statute of limitations. They write, “In contrast, the statute of limitations, which is usually two years, is a soft cutoff. The SOL bars most injury lawsuits, unless victims discover their injuries later. The SOL clock starts ticking at the time of illness discovery, not at the time of asbestos exposure.”

The author is a writer for the Vermont Daily Chronicle

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