I respectfully dissent. I believe that this case should be reversed and remanded to the district court for a trial on the merits. Both Judge Kiser, in his district court opinion, and the majority, in the ruling today, have referred to the “inequity” and “harshness” of the rule they believe controls this case. I do not believe that such an unacceptable result must be reached.
First of all, in granting summary judgment and then dismissing Joyce’s claims against the manufacturer, the lower court erred, where a dispute of facts existed concerning the time a legal “injury” to Joyce occurred. Indeed, the facts in the record as it now exists suggest that no “harm” under Virginia law occurred to Joyce before 1981. At a minimum, this case should be remanded for further consideration on the merits.
Secondly, the district court committed reversible error in dismissing Count VI as it applied to corporate concealment after allowing only sharply limited discovery. On this basis as well, the case should be remanded for a full trial on the merits.
Finally, I do not believe we should reach out to decide unnecessarily the important state law issue of whether a statute of limitations begins to run anew for each successive injury caused by the same wrongful act for asbestos-related disease. Particularly when the result is as unjust as it is here, this court has the duty to avoid creating state law if possible and leave the task to the Virginia Supreme Court and the legislature. See Braswell v. Flintkote Mines, Ltd., 723 F.2d 527, 534 (7th Cir.*12091983). There is nothing in existing precedent which is controlling and which dictates the result reached today. In my view, given the recent trend exhibited in Virginia caselaw and the 1985 amendment of the state statute of limitations, the position reached by the Virginia high court will be that injuries resulting from different, discrete diseases caused by asbestos represent rights of action which mature independently and trigger statutes of limitations separately. However, that decision is better left to the future for the state court.
For all these reasons, I must dissent.
I
In analyzing the onset of Joyce’s “injury,” we must distinguish “a cause of action” from a “right of action.” As the Virginia Supreme Court has pointed out recently in First Virginia Bank-Colonial v. Baker, 225 Va. 72, 301 S.E.2d 8, 13 (1983):
[A] right of action is the right to presently enforce a cause of action — a remedial right affording redress for the infringement of a legal right belonging to some definite person; a cause of action is the operative facts which give rise to such light.
Although a cause of action and a right of action may accrue simultaneously, they do not necessarily do so. Indeed, two separate rights of action may accrue at different times. Id. A cause of action may have to ripen, mature into a right of action. Statutes of limitation do not affect the cause of action, but take away the right. Thus, these statutes are designed to compel the prompt assertion of an accrued right of action, not to bar such a right before it has accrued. Id., 301 S.E. at 14.
In the absence of injury or damage to a plaintiff or his property, he has no cause of action and no right of action can accrue to him. Caudill v. Wise Rambler, 210 Va. 11,13,168 S.E.2d 257, 259 (1969). The rule developed in Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900 (1981), is that the right of action accrues when the damage occurred. First Virginia Bank-Colonial, 301 S.E.2d at 14. The Locke rule liberalized the Virginia law, making it clear that the right of action for a creeping disease like asbestos-caused cancer does not automatically accrue during the period of exposure, but rather is keyed to the injury or damage to the plaintiff. The Locke court made it clear that to hold otherwise would result in the inequity of barring the asbestos-caused, mesothelioma plaintiff's cause of action before he sustains injury. Locke, 275 S.E.2d at 904-06.
The Virginia Supreme Court did not reach in Locke, or in any other case to date, the further question of whether discrete asbestos-related diseases each trigger the statute of limitations separately. However, what can be learned from the analysis employed in Locke and First Virginia Bank-Colonial is that the Virginia court is carefully distinguishing between “rights of action” and “causes of action. Each right of action only matures when damage is done. This is not in contradiction to holding that the “cause of action” itself is unitary and indivisible. In my view, this analysis would lead to characterizing the cause of action, the “operative facts which give rise to such right of action,” First Virginia Bank-Colonial, 301 S.E.2d at 13, as the exposure to asbestos, and the “right of action” as the matured disease.
This analysis fits with what we know now from medical science of the progressive nature of asbestos-related diseases and the fact that one discrete disease may not sequentially follow another, or even necessarily ever appear. Such a right of action is not analogous to the situation of a traumatic accident where the injury, and a right of action occur immediately, and other related damages may appear in the future. Nor is it analogous to the situation in Brown v. American Broadcasting Co., 704 F.2d 1296, 1300 (4th Cir.1983), where if the plaintiff were defamed or her reputation damaged following a broadcast, such injury was immediate and the right of action matured.
This analysis fits with the demands of the court system in assessing damages. If *1210plaintiffs in asbestos cases were to come before a court before each right of action had ripened into a legal injury, they could only plead “substantial probability” that they will suffer a particular disease. Such a premature appearance in court, arguing damages based only on statistics, would conflict with the traditional American rule that recovery for speculative or conjectural future consequences is not permitted and present untenable difficulties for judges and juries.
The burden to prove the facts necessary to trigger an application of the statute of limitations is upon a defendant. Louisville & Nashville RR v. Saltzer, 151 Va. 165, 168, 144 S.E. 456, 457 (1928). The “time plaintiff was hurt” is to be established from available competent evidence, produced by the plaintiff or defendant, that “pinpoints the precise date of injury with a reasonable degree of medical certainty.” Id. at 905. The Locke rule looks to “expert medical testimony” to demonstrate the “legally injurious” harm. Id. The Virginia courts construe the statutory word “injury” to mean “positive, physical or mental hurt” to the plaintiff. Id. at 904. The type of expert medical evidence looked toward is based on clinical, or x-ray evaluations, or impairment.
Thus, when the Virginia Code provides that “[i]n every action for which a limitation period is prescribed, the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained. ...” Va.Code § 8.01-230 (1984), the Virginia courts interpret “injury” as a positive hurt, established by competent evidence, pinpointing the precise degree of injury with a reasonable degree of medical certainty. But the facts of this case do not appear to present such evidence. In my view, a dispute of facts exists as to whether Joyce suffered any legal injury that was not within the statute of limitations.
To begin, Joyce testified that he had no symptoms or loss of function because of pleural thickening, the condition at issue before 1981. This testimony is corroborated by the depositions of all medical witnesses in the court record on appeal.1
Joyce was asymptomatic at the time of and after his visit to Dr. O’Neill in January 1981; Joyce had no shortness of breath before 1980. Joyce, Dep. 145. Indeed, Dr. O’Neill believed that as late as August 1981 Joyce could work full-time and maintain full activity. Layton Dep. 158. In supporting DuPont’s argument that Joyce had no symptoms of any kind which anyone at DuPont associated with an asbestos-related disease prior to 1981, Dr. Layton testified that there was no abnormality in Joyce’s pulmonary functions in 1980, and that if he had been tested prior to that time those readings would also have been normal. Layton Dep. 85, 162. Joyce testified that none of his doctors had ever told him when his asbestos-related condition began, and Dr. O’Neill could not speculate on such a time when he was questioned.
DuPont did not make a proper industrial accident report for Joyce of any discernible illness before January 13, 1981. Dr. Lay-ton confirmed that the report of a suspected occupational illness filed by the company with the Industrial Commission, and signed by Safety Supervisor O.P. Fitzgerald, listed the date of injury as “September 14, 1981.” Jt.App. 86-87. Plaintiffs allege that Virginia law only provides compensation for parenchymal asbestosis and does not provide for compensation for injuries to the pleural lining of the lungs, citing application of Va.Code § 65.1-56(20). Jt.App. Supp. 61. The “Memorandum of Agreement as to Payment of Compensation” signed by Joyce in settlement with the com*1211pany and filed by DuPont, states that under Virginia Workmen’s Compensation law for the scarring and damages to the pleural lining of his lungs:
Nature of Injuries-Diagnostic work on a suspected occupational illness and asbestos related abnormalities. At the conclusion of the diagnostic procedures, the employee was found to have no stageable occupational disease, (emphasis added)
In the absence, then, of competent medical or clinical evidence of symptoms or impairment, the only evidence which was presented, that could conceivably show that Joyce suffered a legally cognizable “injury” before 1981, were x-rays taken of his lungs dating from 1970 to 1980. Certainly, x-rays showing an abnormality may be exactly the type of evidence that can prove the existence of an injury triggering the statute of limitations. Locke, 275 S.E.2d at 905. But the x-rays presented in this case appear not to satisfy the requirements of proof “to a reasonable degree of medical certainity” as set forth in Locke.
The x-rays in the instant matter date back to 1970. Before 1970 the company policy was to discard a previous year’s x-ray and retain the most recent x-ray, if there was no apparent change. Jt.App. 76. Both Dr. Layton and Dr. O’Neill, questioned about this series of films, could provide no firsthand or conclusive information.2 Both doctors had great difficulty during their depositions even definitively identifying or pinpointing the “scarring” at issue.3 This is related to the medical fact that the softer and less dense a lesion is, the less obviously it stands out, the less white it is, Jt.App. 70.
Although the medical experts in this case were not able to give precise testimony with regard to the clinical interpretation of the 1970-1980 x-rays, they were quite certain of the fact that there were no major changes in the x-rays during that decade. Jt.App. 79, 120. They were also sure that the medical records during the period of 1970-1980 revealed nothing that anyone at DuPont would associate with asbestos-related disease so as to trigger any need to tell Joyce. Dr. O’Neill stated that the unilateral pleural thickening which he had seen before 1981 on the x-rays would not have been sufficient for him to make a diagnosis of asbestos-related pleural thickening. O’Neill Dep. 72.
Thus, the clinical testimony given in this case failed not only to “pinpoint” the precise date and time of the “harm” from pleural thickening, which cannot always be easily determined in cases such as this, but it also could not establish “to a reasonable degree of medical certainty” that a legally cognizable injury occurred at all outside the two-year period allowed by Virginia law. The medical testimony failed to provide the expert radiographic analysis necessary and failed to analyze the clinical im*1212pact — or lack of it — of any abnormalities believed to be present. Such purported expert testimony is not adequate and has left in dispute the factual question of whether a legal “harm” occurred to Joyce before 1981.
Unable to rely on convincing medical proof of impairment or pathology documentation by x-ray, we are faced with the simple assertion by the majority that the plaintiff conceded that his first injury developed more than two years before his action was filed. Ante at 1205. The district court as well relied on this argument, Memorandum Opinion, pp. 10, 12, n. 4, and both cite to the same source: Plaintiff’s Memorandum in Opposition to Celotex’s Motion for Summary Judgment at 3, n. 3. But the footnote merely states that according to DuPont records, Joyce “probably” had pleural thickening, but that plaintiff was not attempting to recover for his asbestos-related pleural disease from Celotex. Instead, the footnote states, a suit was brought against DuPont alleging that the company knew of the existence of Joyce’s disease, but never informed him of its existence, causing Joyce to lose valuable legal rights. Jt.App. 147.
There is nothing in the footnote which decides the outcome in this case. It is simply a reference to the fact that the original complaint sought to recover for two diseases (pleural asbestosis and parenchymal asbestosis), 111128, 29, and pled in the alternative that if the court found that plaintiff determined that an injury existed prior to 1981 then it was as a result of fraud and concealment by DuPont that such knowledge was not imparted to the plaintiff, and that now time bars him, 1111 53, 54.
This is a complicated case in its pleadings because both sides have made arguments in the alternative. It is the function of a district court to look at the evidence before it, deciding the merits of the assertions in the complaint and the defenses. Based on that evidence, I believe that there is at least a dispute of facts as to whether a legal “harm” occurred to Joyce before 1981. In my view, the record suggests that no such damage did take place. At a minimum, the granting of summary judgment and dismissal was error. This case should be remanded for further consideration on the merits.
For this reason, I must dissent.
II
The district court committed reversible error in dismissing Count VI as it applied to corporate concealment after allowing only sharply limited discovery. On this basis as well the case should be remanded for a full trial on the merits.
By order dated August 15, 1983, the district court granted DuPont’s motion to dismiss Joyce’s complaint, except as to Count VI of the amended complaint. Paragraphs 53 and 54 of Count VI state:
53. In the alternative, if by careful review, it is determined under the appropriate Virginia statute of limitations that the Plaintiff should have determined that his injury existed prior to January 13, 1981, then it is only as a result of the fraud and conspiracy between defendant DuPont and its officers and employees that such knowledge was not imparted to Plaintiff before January 13, 1981.
54. If as a result of the fraud and concealment by DuPont and its agents to inform Plaintiff of his medical condition, he has lost his right to an action against the defendant miners and manufacturers, then DuPont by depriving Plaintiff of such cause of action has willfully and intentionally injured Plaintiff to the extent of damages that said miners and manufacturers would have been liable to Plaintiff.
The district court granted the plaintiff the opportunity to engage in discovery with DuPont limited to the issue of whether DuPont concealed from Joyce his medical condition with regard to asbestosis and other related diseases. The court ruled as follows:
1. On Defendant duPont’s Motion to Dismiss, the Court granted the motion *1213except as to Count VI of the Amended Complaint. With regards to that Count, the Court granted the Plaintiff opportunity to engage in discovery with duPont limited to the issue of whether duPont concealed from the Plaintiff Joyce his medical condition with regard to asbestosis and other related diseases.
Jt.App.Supp. 156. The court divided Count VI into two parts: (1) as the count applied to corporate actions where Joyce was not known personally to the corporate actors, and (2) where the allegations were narrowed to actions of specific persons who knew their acts affected Joyce. The court stopped all discovery scheduled by Joyce with respect to the corporate actions and limited discovery on fraud and concealment to the actions of those who specifically knew Joyce.
The discovery prohibited by the district court was designed to aid plaintiff to show that a loss of a right to sue because of a time bar was a fraud and concealment by DuPont and its agents. The concealment alleged by Joyce was corporate, part of a company-wide policy, dating back to at least 1964, to fail to test employees for asbestos, to fail to change working conditions, and to fail to tell employees suffering injury because of their illnesses. Toward that end, plaintiffs noticed depositions of various medical and corporate personnel in the “control group” of the company, in addition to depositions which were intended to establish the authenticity of documents reflecting corporate policy.
Plaintiff’s theory concerning concealment was that individual plant physicians and lower level safety employees had information withheld from them by the “control group” directing company-wide policy on asbestos, so as to make it impossible for the physicians to properly diagnose asbestos-related diseases in their employees. Under this theory, it is the corporation itself which had the intent to conceal from a group of employees, of which Joyce was a member, the risk of harm from asbestos and resulting injury. The thrust of plaintiff’s theory was not directed primarily at those DuPont employees who had specific personal knowledge of Joyce’s condition.
Following the limited discovery allowed by the court, Joyce served notices on thirteen present and former DuPont employees. Plaintiff sought those depositions to prove corporate concealment.4 On November 18, 1983 DuPont filed a motion for a protective order asking that the depositions not be taken or that the witnesses not be required to produce certain documents. DuPont argued that the individuals sought to be deposed could have no knowledge whether duPont concealed from these plaintiffs their medical conditions with regard to asbestosis. After receiving an opposition to that motion on November 28, 1983, a conference was held by the district court (no transcript is available of that conference). Plaintiff’s counsel alleges that at the hearing, the district judge indicated that he intended his order dated August 15 to mean that Joyce must show not only corporate suppression of pertinent medical facts regarding its asbestos-exposed employees’ medical conditions, but must also present proof that DuPont specifically intended to single out Joyce and thereby deprive him of the opportunity to pursue his legal rights under Virginia law. According to plaintiff’s counsel, when he informed the court that his evidence established only that Joyce was a person known to be in the group subject to such conduct, the district judge instructed counsel not to proceed with the depositions. Jt.App.Supp. 201.
The district court ordered, effective January 19, 1984, the granting of defendants’ *1214motion for protective order. The court also decided to treat the motion as a motion for summary judgment, stating that it appeared to the court that there was no genuine issue of material fact, in the action. Jt.App.Supp. 221-22. The district court then entered summary judgment for DuPont and dismissed the actions against it. The claim of the Estate of Bessie Lepus was not dismissed at that time, but was subsequently settled.
In my view, the district court erred in dismissing Count VI as it applied to corporate concealment after allowing only sharply limited discovery. By narrowly limiting the plaintiff to a showing of individual concealment by lower level employees, e.g., the plant medical director, the court made it impossible for the plaintiff to prove facts substantiating his theory of concealment by the control group of the corporation itself. Because of the district court’s rulings, the plaintiff was prohibited from presenting facts to defeat summary judgment.
For this reason as well, the case should be remanded for full trial on the merits.
. Dr. Westerfield stated that Joyce had no impairment or functional impairment from pleural thickening, Jt.App. 198; Dr. O'Neill stated that Joyce had no loss of function from the pleural changes, Jt.App. 108; Dr. Berkowitz indicated that it is only when it is severe that pleural thickening causes disease and impairment, Jt.App. 195, 196; Dr. Rivers concurred that such changes do not as a rule result in impairment, Dep. of Apr. 12, 1984, p. 15; Dr. Layton testified that he had believed until 1981 that unilateral pleural thickening is not caused by asbestos exposure, Jt.App. 83, Layton Dep. 82.
. They did not know the medical guidelines of the company existing during this period of time, Jt.App. 78; they did not know if the films were copies or originals, Jt.App. 113; they did not know of any policy changes in retaining or interpreting the x-rays, Jt.App. 76; and they did not have any personal knowledge of what the notations on the films revealed, Jt.App. 70. Dr. Layton could only "assume” that whoever wrote "soft lesion, right lung, unchanged over last several years” on the x-ray dated 1972 was looking back retrospectively over previous years, Jt.App. 72.
. For instance, Dr. Layton, looking at the 1972 film, said it was “hard to tell if it was in focus," and that after looking at the x-ray said "you can’t tell if there is a lesion on the pleura." But he assured the questioner that, "It’s there. It just doesn’t show up,” and that he could "recall” it. Jt.App. 71-73. When Dr. O'Neill was asked whether the pleural thickening that he saw appeared on all the x-rays, he said he could not recall; he stated that he could not relate as to what time frame the x-rays covered. Jt.App. 103-04.
Dr. O’Neill was "quite sure” there had been pleural thickening before 1981, but he was only able to conjecture that the x-rays dating back several years "may be able to tell you with certainty that it’s been ... however long it’s been there on an x-ray it’s been there at least that long.” Jt.App. 106. As to the 1980 x-ray, the one most probative, if any, of the series Dr. O’Neill could only speculate that someone had drawn a circle on the film and that there was "probably” some pleural thickening. Jt.App. 114.
. Several of those served were allegedly members of a special DuPont Asbestos Issues Coordinating Committee; others had allegedly been mentioned in various documents beginning in thé 1960’s with regard to asbestos hazards. Dr. Stopps allegedly wrote an early memorandum to Dr. D’Alonzo recommending asbestosis screening. Joyce’s notices requested those deposed to furnish materials relating to meetings with plant medical personnel, minutes of the "Asbestos Issues Coordinating Committee” meetings, or materials with regard to company-wide policy or practice relating to asbestos exposure,