Paul DaBALDO, Jr., and Marlene DaBaldo, Plaintiffs Below, Appellants,
URS ENERGY & CONSTRUCTION, FKA Washington Group International, as successor to Raytheon Constructors, FKA Catalytic, Inc., and Crane Co., Defendants Below, Appellees.
Submitted: Jan. 15, 2014.
Court Below— Superior Court of the State of Delaware, in and for New Castle County, C.A. No. N09C-05-048 ASB.
Upon appeal from the Superior Court. REVERSED.
Thomas C. Crumplar, Esquire (argued), Jacobs & Crumplar, P.A., Wilmington, Delaware, for appellants.
Joel M. Doner, Esquire (argued) and Christopher C. Popper, Esquire, Eckert Seamans Cherin & Mellott, LLC, Wilmington, Delaware, for appellee, URS Energy & Construction.
Nicholas E. Skiles, Esquire, Francis C. Gondek, Esquire and Patrick M. Brannigan, Esquire, Swartz Campbell LLC, Wilmington, Delaware, for appellee, Crane Co.
Before HOLLAND, BERGER and RIDGELY, Justices.
The plaintiffs-appellants, Paul Dabaldo, Jr. (" DaBaldo" ) and Marlene DaBaldo, filed a complaint against nineteen defendants, including the defendant-appellee, URS Energy & Construction, f/k/a/ Washington Group International, as successor to Raytheon Constructors, f/k/a/ Catalytic, Inc. and Crane Co. (collectively the " Defendants" ). The complaint alleged that DaBaldo developed " pulmonary asbestosis; asbestosis" as a result of exposure to asbestos and sought recovery for those alleged injuries. After the completion of discovery, the Defendants moved for summary judgment arguing that the DaBaldos' claims were barred under title 10, section 8119 of the Delaware Code, the two-year statute of limitations applicable to personal injury claims. The Superior Court heard oral argument on the Defendants' motions for summary judgment and granted them,
ruling from the bench that the DaBaldos' claims were time-barred.
In this appeal, the appellants submit that their 2009 complaint was timely filed. The record supports that assertion. Therefore, the judgment of the Superior Court must be reversed.
DaBaldo worked at the Getty Tidewater Oil Refinery in Delaware from 1967 to 2001. In 1992, DaBaldo's primary care physician, Dr. William Nottingham, suggested that DaBaldo receive a chest x-ray. On August 19, 1992, Dr. Majid Mansoory, a radiologist with Papastavros Associates Imaging, interpreted the chest x-ray and sent a report of his findings to Dr. Nottingham (the " 1992 X-Ray Report" ). The 1992 X-Ray Report revealed " bilateral calcified pleural plaques suspicious for asbestosis [sic] exposure." There is no evidence in the record that DaBaldo received a copy of the 1992 X-Ray Report. Dr. Nottingham discussed the results with DaBaldo and told him that he had asbestos-related pleural plaque.
Shortly after the 1992 X-Ray Report, DaBaldo underwent a CT Scan of his chest on October 16, 1992. Dr. Myung Lee, a radiologist with Diagnostic Imaging Associates, P.A. (" Diagnostic Imaging" ), interpreted the CT Scan and sent a report (the " 1992 CT Scan Report" ) to Dr. Nottingham dated October 19, 1992. The report found " [m]ultiple short segments of calcified or non-calcified pleural plaques in the anterior and posterior pleural surfaces of both hemithoraces. These are consistent with mild degree of asbestos related pleural disease. " There is no evidence in the record that DaBaldo received a copy of the 1992 CT Scan Report.
After Dr. Nottingham received the 1992 CT Scan Report, he sent a letter to DaBaldo, dated October 22, 1992, in which he wrote that " [t]here seems to be little doubt that there is a mild degree of asbestos related pleural disease which had been seen originally on the plain chest x-ray . " Dr. Nottingham also discussed the results with DaBaldo at which time he informed DaBaldo that he had asbestos-related pleural plaque. The letter further suggested that DaBaldo undergo a series of pulmonary function tests (PFTs) to set a baseline for his lung functioning. DaBaldo underwent the PFTs on December 8, 1992. The accompanying report prepared by Dr. Clifton Hunt indicated normal lung functioning and did not mention any disease.
DaBaldo continued to visit his primary care physician periodically. He received another chest x-ray in 1999 which was interpreted by Dr. Philip Chao, a neuroradiologist also with Diagnostic Imaging, in a report dated July 29, 1999 (the " 1999 X-Ray Report" ). This report, which was ultimately sent to DaBaldo's primary care physician, Dr. Wesley Young, indicated a " Known history [of] asbestosis . " Other parts of the report revealed " multipled calcified pleural plaques " which were " suggestive of asbestosis." Ultimately, the " [f]indings [were] compatible with given history of asbestosis." There is no evidence in the record that DaBaldo ever saw the 1999 X-Ray Report.
About two years later, DaBaldo underwent a follow-up chest x-ray. This x-ray was interpreted again by Dr. Lee, who sent a report to Dr. Young on June 27, 2001 (the " 2001 X-Ray Report" ). The 2001 X-Ray Report ...