## Facts

- Robert Sopha worked for Owens-Corning and alleged asbestos exposure injuries.
- In 1987, Robert and his wife, Margaret, sued in Wisconsin circuit court for a nonmalignant asbestos-related lung condition.
- The 1987 action was dismissed on the merits and with prejudice.
- In 1996, Robert was diagnosed with malignant mesothelioma, a distinct and fatal asbestos-related cancer.
- Mesothelioma was found to be separate from the earlier nonmalignant condition and not reasonably foreseeable with certainty at the time of the 1987 suit.
- In 1997, the Sophas filed a new action against Owens-Corning seeking damages for mesothelioma.
- The circuit court dismissed the 1997 action as barred by the three-year statute of limitations and/or by claim preclusion based on the 1987 judgment.
- Robert died during the litigation; Margaret continued the action and appealed.

## Issues

1. Whether Wisconsin’s three-year personal-injury limitations period for a later-manifesting asbestos disease begins at the first asbestos-related injury or upon discovery of the later, distinct disease.
2. Whether a final judgment dismissing an earlier suit for a nonmalignant asbestos-related condition precludes a later suit for subsequently discovered malignant mesothelioma that was not reasonably foreseeable at the time of the first case.

## Decision

- The Wisconsin Supreme Court reversed the circuit court’s dismissal and remanded for further proceedings.
- The court held the mesothelioma claim was timely because it accrued when mesothelioma was discovered (or should have been discovered), not at the time of the earlier nonmalignant condition.
- The court held claim preclusion did not bar the mesothelioma action because it involved a separate, later-manifesting injury that had not accrued and was not reasonably foreseeable when the 1987 case was resolved.

## Legal Principles

- Under Wisconsin’s discovery rule, a personal-injury claim accrues when the injury is discovered or reasonably should be discovered.
- In asbestos latent-disease litigation, a later, distinct asbestos-related disease may constitute a separate cause of action when it was not reasonably foreseeable with certainty at the time of the earlier disease.
- When the later disease is separate and unforeseeable at the time of the first suit, the statute of limitations runs from discovery of the later disease rather than from the earlier asbestos-related injury.
- Claim preclusion does not apply to bar a later action when the later claim had not accrued at the time of the prior judgment and rests on a distinct, later-manifesting injury rather than a previously litigable claim for the same harm.

## Conclusion

Wisconsin permitted a second asbestos-related action for newly diagnosed mesothelioma because the claim accrued upon discovery of that distinct, unforeseeable disease and was not barred by either the limitations period measured from the earlier nonmalignant condition or by claim preclusion from the prior dismissal with prejudice.


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