INA, where Judge June Green conjured the same “continuous exposure” theory to implicate insurance coverage of asbestos workers from the time of first employment until the time of diagnosis. But Backe’s mind-boggling theory is now embodied in today’s toxic tort law via the glass-breaking and precedent-setting case of Keene v. The ruling, while innovative, was not precedential - it didn’t impact future litigation. Ruling that the girls’ bones still contained radium and the radium was continuously damaging them, he held that they were continuously being injured, “therefore the statute began tolling each moment of the injury.” Ultimately, Chancellor Backes came up with the solution to the statute of limitations’ conundrum. The defense continued their obfuscation during the trial, seeking adjournment after adjournment for months – waiting for the moribund girls to die. Drinker’s complete report was ultimately received into evidence, demonstrating the shady tactics employed by USRC. Berry was pitted against USRC’s stellar team of lawyers, including Edward Markley, who tried to obstruct every piece of evidence Berry tried to admit. RADIUM EFFECTS TRIALIf the plaintiffs prevailed, a second trial would determine USRC’s culpability. It was to be a bifurcated case the major impediment, the issue of the statute of limitations, would be decided first. The trial began in January 1928 in Chancery Court before Vice-Chancellor John Backes. His degree was in philosophy – still, he was allowed to testify. It turned out that Flinn was a fraud, with a capital F. Flinn ran tests, took blood, withheld the results from the workers, and then falsely represented that none suffered radiation poisoning. Martland, the USRC did the same, retaining a Dr. While Berry lined up experts to testify and marshaled the radiation exposure results of Dr. “Although its employees were falling sick, the corporation did nothing, USRC did everything it could to obscure the issue and render proper relief to its employees impossible.” The women had received their diagnoses (and death sentence, as radium poisoning is incurable) two years earlier after wandering around for five years searching for answers, even as the company assured them the job was safe. īerry filed his case against Grace’s employer, the US Radium Dial Company (USRC) of New Jersey, in May 1927 – just in the nick of time, even under his novel theory. But it took until the mid-1980s, amidst the asbestos and DES litigation, for states to extend the statute of limitations - as Berry suggested in his novel argument 60 years earlier. Today that is the legal standard for long-latency diseases. Berry would later argue that the two-year federal statute of limitations did not begin to run until afterthe plaintiffs discovered a disease, not from the dates of exposure or employment, as the companies contended. Grace valiantly went from lawyer to lawyer in a futile effort to find one willing to confront an antiquated legal system that barred lawsuits when the injury manifested after exposure or employment ceased.Įventually, Grace happened upon Raymond Herst Berry. The statute of limitations was a major obstacle for the legal claims of most of the radium girls, who painted watch dials with radium paints and who were now horribly injured, like Grace Fryer, whose spine had disintegrated from the radium and who, at 27, was forced to wear a solid steel back brace. You can find Part I of the radium girls saga here.
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