THIS OPINION HAS BEEN VACATED IN PART

Choice of law in an asbestos case.

Pounders was an APS employee working at the Four Corners plant in New Mexico. While there he inhaled asbestos. Diagnosed with mesothelioma some years later while living in Arizona, he sued those responsible for the parts of the plant that contained asbestos. He then died and his widow amended the Complaint to wrongful death.

The trial court applied New Mexico’s statute of repose, granting the defendants summary judgment. Pounders appealed. The Court of Appeals affirms.

The Restatement choice-of-law rule defaults to the law of the place where the injury occurred unless another state has a “more significant relationship” to the claim.

Much of the opinion is devoted to Mrs. Pounders first argument, that the injury occurred in Arizona – where the condition developed and was diagnosed – rather than where the fibers were inhaled. She cited cases to the effect that you can’t sue before you know you have a disease. But the Restatement says that the injury happens “where the force set in motion by the actor first takes effect on the person” and the first effects occur immediately upon inhalation. So the injury occurred in New Mexico. For some reason the opinion then discusses at length cases from other jurisdictions that have gone both ways before announcing that the better-reasoned cases come to the conclusion it had reached before discussing them.

But it seems that Pounders was wise to emphasize that argument. Though the court next takes six pages to slog through the interest analysis before deciding that Arizona did not have a more significant interest than New Mexico, that is more a matter of Division One style than of necessity. Turns out that Arizona was simply where Pounders happened to be when he was diagnosed and died.

In the last several pages the court analyses the New Mexico statute, in light of New Mexico precedent, to rule that it does indeed apply to this case. The court suggests that its having to analyze New Mexico law is “curious” but its actually routine in choice-of-law cases, especially those rather obviously filed in one jurisdiction to try to avoid the law of another.

(link to opinion)