Defendant Pneumo Abex's Motion for Summary Judgment
Honorable Calvin L. Scott, Jr., Judge.
contends that decedent David Bagwell contracted lung cancer
from asbestos in Defendant Penumo Abex's
("Defendant") products. The only product
identification witness is Clyde Bagwell, Mr. Bagwell's
brother. Defendant contends that under South Carolina
substantive law, Plaintiff's claims are barred by the
statute of limitations. In response, Plaintiff claims that
decedent was diagnosed with lung cancer in May 2009 and
passed away on January 28, 2010. Subsequently his wife did
not know that her husband's cancer was caused by asbestos
until the Complaint was filed. Under South Carolina law,
Defendant argues that Plaintiff's case must be dismissed
because wrongful death claims must be filed within three
years of the date of decedents death. However, Section 10 Del.
C. § 8121 states, "[w]here a cause of action
arises outside of this State, an action cannot be brought in
a court of this State to enforce such cause of action after
the expiration of whichever is shorter, the time limited by
the law of this State, or the time limited by the law of the
state. . . where the cause of action arose, for bringing an
action upon such cause of action."As this Court has
held before, "[t]he clear and unambiguous terms of the
statute dictate that if a cause of action arises outside of
Delaware, the Court must compare 'the time limited by the
law of this State' with 'the time limited by the law
of the state . . . where the cause of action arose' and
apply 'whichever is
shorter'." In personal injury actions, this State
applies a two year statute of limitations from the date of
plaintiff's injury. Plaintiff passed away from lung cancer
on January 28, 2010, and Plaintiff's Complaint was not
filed until June 2, 2014. Plaintiff argues that under
Delaware law, "[t]he two-year statute of limitations on
asbestos-related personal injury cases 'begins to run
when the plaintiff is chargeable with knowledge that his
condition is attributable to asbestos
exposure'." The four part test relevant to determine
whether the statute of limitations runs is: (1)
plaintiff's knowledge and education; (2) the extent of
his recourse to medical evaluation; (3) the consistency of
the medical diagnosis; and (4) plaintiff's follow up
efforts following the initial recourse to medical
evaluation. Plaintiff's situation is
distinguishable from other asbestos cases because Mr. Bagwell
passed away more than two years prior to contact with legal
counsel. Mr. Bagwell was diagnosed with lung cancer in May
2009 and passed away on January 28, 2010. Plaintiff avers
that she contacted an attorney in August of 2012, and the
Complaint was not filed until June 2, 2014. Plaintiff urges
that she did not know that her husband's lung cancer was
caused by asbestos until "after June 2, 2014 when his
case was filed."
Plaintiff is correct that Delaware's statute of
limitations law in latent disease cases provides relief for
plaintiffs by starting the legal time clock from the date a
plaintiff is "chargeable with knowledge that his
condition is attributable to asbestos exposure,
" here, Plaintiff provided nothing for the
Court to analyze a statute of limitations date. Although it
is clear that asbestos cases fall into the latent disease
category, and the time begins to run when the plaintiff is
chargeable with knowledge that his condition is attributable
to asbestos exposure, the Court cannot infer, beyond
speculation, when Plaintiff became aware her husband's
disease was related to asbestos. Plaintiff provided no
medical records from Mr. Bagwell's initial diagnosis or
any other evidence of medical treatment for the Court to
analyze the four part DaBaldo test. The only piece
of evidence that the Court can take into consideration is a
document titled "Affidavit of Sherrie Bagwell."
However, this document has little to no probative value
because it is neither notarized nor signed by an attorney.
Without additional information, the Court cannot infer,
beyond speculation, the date that Ms. Bagwell became
chargeable with knowledge that her husband's disease was
asbestos related was August 2012.
for the aforementioned reasons, Defendant's Motion for
Summary Judgment is hereby GRANTED.
IS SO ORDERED.
See S.C. Code Ann.
In re Asbestos Litigation
(Schultz), 2015 WL 5168121, at *2 (Del. Super. Sept. 1,
"Delaware has a two-year statute
of limitations for both personal injury and wrongful death
actions." Clinton v. Enterprise Rent-A-Car Co.,
977 A.2d 892 (Del. 2009); see also 10 Del.
DaBaldo v. URS Energy
&Const., 85 A.3d 73, 79 (Del. 2014).