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In re Asbestos Litigation

Superior Court of Delaware, New Castle

December 5, 2014

AIR & LIQUID SYSTEMS CORPORATION, A/K/A BUFFALO PUMPS, INC., et al., Defendants, LINDA SPEAR, Individually and as Personal Representative of the Estate of PAUL SPEAR, Plaintiffs,

Submitted: December 4, 2014, Order Issued: December 5, 2014



The Court is, unfortunately (and in its view wholly unnecessarily), forced to again address an asbestos litigation defendant's exercise in "sandbagging" during a summary judgment proceeding. One engages this tack by raising new bases for dispositive relief for the first time in a reply pleading. Here Defendant Air & Liquid Systems Corporation ("Buffalo Pumps") does so by belatedly asserting a claim that the statute of limitations bars Mrs. Spears's claims for relief arising from her husband's death from lung cancer.[1]

Buffalo Pumps filed its July 11, 2014 motion for summary judgment raising only a single ground for dispositive relief: product identification/nexus. Mrs. Spears, as expected, filed her timely response thereto addressing only product identification/nexus. Unabashedly, Buffalo Pumps came out swinging in their reply with the argument, front and center, [2] that the Spears' toxic tort claims are barred by the statute of limitations.[3]

In that reply, Buffalo Pumps cited as record bases for its statute of limitations claim (1) Decedent Paul Spear's December 2010 symptom complaints and April 2011 medical records, (2) Mr. Spear's October 2, 2013 deposition testimony, and (3) the Spears' Diagnosing Medical Report, which was authored in June 2011 and filed in this case on September 30, 2013. In the Court's view, and Buffalo Pumps has neither in writing nor at oral argument explained otherwise, all of these materials were available to this defendant well before the filing of its July 2014 summary judgment motion.[4]

In turn, the Court hereby strikes Buffalo Pumps' claim for summary judgment based on the statute of limitations sua sponte. The Court finds that Buffalo Pumps has, under well-settled and established Delaware law condemning this ligation practice, [5] waived that defensive claim here. Moving parties in asbestos litigation have been "warned" time and again that they engage in "sandbagging" litigation practice at their peril.[6] Perhaps that message has not been clear enough nor the peril understood well enough. No longer.

The Court may hereafter employ any number of measures to address this practice. One, of course, is a finding of waiver of the claim in the summary judgment proceeding itself.[7] Another may be the sanction of completely barring consideration of the claim during any further proceedings in the case.[8] Lastly, given what should now be the well-understood state of Delaware law on this subject, given the fairness concerns previously raised by this Court, [9] and given the needless expenditure of valuable judicial resources[10] to address a latent and delinquent claim, the Court might consider assessing the offending party the costs of addressing the claim[11] or counsel for the performance deficiency.[12]

AND NOW, IT IS HEREBY ORDERED that Defendant Buffalo Pumps' Statute Of Limitations Claim, raised for the first time in its reply in this summary judgment proceeding is STRICKEN AS WAIVED.


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