## Facts

- Robert Sopha worked for about 44 years as an insulator and was regularly exposed to asbestos-containing products associated with multiple manufacturers, including Owens-Corning.
- In the late 1970s or early 1980s, he was diagnosed with non-malignant asbestos-related conditions, including pleural thickening and/or asbestosis.
- In March 1987, Robert and his wife, Margaret Sopha, sued Owens-Corning and others for asbestos-related lung injuries, seeking damages that included “risk of cancer.”
- In 1989, the circuit court dismissed the 1987 action on the merits and with prejudice as time-barred under Wisconsin’s three-year personal-injury limitations period.
- In December 1996, Robert was first diagnosed with mesothelioma.
- In March 1997, Robert and Margaret filed a new action seeking damages for mesothelioma; after Robert died in November 1997, the complaint was amended to substitute the estate and add a wrongful-death claim.
- Owens-Corning sought dismissal of the 1997 suit based on statute of limitations and claim preclusion stemming from the 1989 dismissal.

## Issues

1. When does the three-year limitations period for personal injury begin to run on a mesothelioma claim when the plaintiff previously discovered a different, non-malignant asbestos-related disease from the same exposure?
2. Does claim preclusion bar a later mesothelioma action where an earlier asbestos action between the parties was dismissed with prejudice as time-barred and the earlier pleadings included an allegation of “risk of cancer”?

## Decision

- The Wisconsin Supreme Court held the mesothelioma claim accrued when Robert discovered (or should have discovered) he had mesothelioma and that it was probably caused by asbestos exposure attributable to defendants.
- The Court ruled the 1997 action, filed shortly after the 1996 mesothelioma diagnosis, was timely under the discovery rule.
- The Court held claim preclusion did not bar the mesothelioma action because mesothelioma constituted a distinct injury that was not present and could not have been fully litigated in the earlier case.
- The Court reversed the summary judgment entered against the plaintiffs on limitations grounds and remanded for further proceedings.

## Legal Principles

- Under Wisconsin’s discovery rule, a personal-injury claim accrues when the plaintiff discovers (or with reasonable diligence should discover) the injury and its probable causal connection to the defendant’s conduct.
- In asbestos latent-disease litigation, a later-manifested malignant disease such as mesothelioma can be treated as a separate injury from an earlier non-malignant asbestos-related condition for accrual purposes.
- Claim preclusion requires identity of parties, a final judgment on the merits, and identity of the cause of action; a later claim is not precluded if it could not have been litigated in the prior action.
- An earlier allegation of “risk of cancer” in an asbestosis case does not, by itself, make a later diagnosed mesothelioma claim the same cause of action for claim-preclusion purposes.

## Conclusion

The court held that a mesothelioma claim accrues upon discovery of mesothelioma and its probable cause, not upon discovery of an earlier non-malignant asbestos-related condition, and that a prior time-barred asbestos action dismissed with prejudice does not preclude a later suit for subsequently diagnosed mesothelioma.


Sopha v. Owens-Corning Fiberglas Corp., 230 Wis. 2d 212, 601 N.W.2d 627 (Wis. 1999)