Bagwell v. Borgwarner Morse Tec, LLC ( 2017 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION
SHERRIE BAGWELL, as personal
)
representative of the estate of DAVID
)
BAGWELL, and ) SHERRIE
BAGWELL, individually, )
)
Plaintiff, ) C.A. No. N14C-06-023 ASB
)
v. )
)
BORGWARNER MORSE TEC, LLC, )
et al., )
)
Defendants.
August 29, 2017
Upon Defendant Pneumo Abex’s
Motion for Summary Judgment
GRANTED.
Plaintiff 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.1 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.”2
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’.”3 In
personal injury actions, this State applies a two year statute of limitations from the
date of plaintiff’s injury.4 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
1
See S.C. Code Ann. 15-3-530(6).
2
In re Asbestos Litigation (Schultz), 2015 WL 5168121, at *2 (Del. Super. Sept. 1,
2015).
3
Id.
4
“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. C. 8107.
that his condition is attributable to asbestos exposure’.” 5 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.6 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.”
Although 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,”7 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
5
DaBaldo v. URS Energy &Const., 85 A.3d 73, 79 (Del. 2014).
6
Id.
7
Id.
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.
Accordingly, for the aforementioned reasons, Defendant’s Motion for
Summary Judgment is hereby GRANTED. IT IS SO ORDERED.
/s/ Calvin L. Scott
The Honorable Calvin L. Scott, Jr.