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. N l 4C-()6-023 ASB

V.

BORGWARNER MORSE TEC, LLC,
et al.,

Defendants.
August 18, 2017
Upon Defendant BorgWamer ’s

Motion for Summary Jua'gment
GRANTED.

Plaintiff contends that decedent David Bagwell contracted lung cancer from
asbestos in Defendant BorgWarner’s products. The only product identification
Witness is Clyde Bagwell, Mr. Bagwell’s brother. Clyde Bagwell testified that
together, he and his brother performed automotive Work from 1965 to the present,
including clutch Work. Clyde Bagwell recalled Borg-Warner as one of the
manufacturers of clutches his brother used. Plaintiff presented evidence that
Defendant’s clutches contained asbestos through the l980s, and Mr. Bagwell’s

brother estimated that he performed a clutch replacement once a Week. In response

to Defendant’s lack of expert report argument, Plaintiff argues she tendered an
expert report from Dr. Primavera on April 4, 2017, which is also attached to
Plaintiff’s response. This expert report states that Mr. Bagwell had significant
occupational exposure to asbestos containing products, and specifically lists Borg-
Warner’s clutches.

On the other hand, 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 after June 2, 2014. 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.l 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

 

1 See S.C. Code Ann. 15-3~530(6).
2 In re Asbestos Lz`tigation (Schultz), 2015 WL 5168121, at *2 (Del. Super. Sept. l,

2015).

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 ‘whz`chever is shorter’.”3 In personal injury actions, this State
applies a two year statute of limitations from the date of plaintiffs 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 that his condition is attributable to
asbestos exposure’.”5 The four part test relevant to determine whether the statute of
limitations runs is: (l) 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

 

3 Ia'.

4 “Delaware has a two-year statute of limitations for both personal injury and
wrongful death actions.” Clinton v. Enterprz`se Rent-A-Car Co., 977 A.2d 892 (Del.
2009); see also 10 Del. C. 8107.

5 DaBala’O v. URS Energy &Const., 85 A.3d 73, 79 (Del. 2014).

6 Id.

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.

Generally, “the defendant bears the burden of proving that a limitations period
has lapsed and that claim is time-barred.”8 Conversely, “[w]hen a complaint asserts
a cause of action that on its face accrued outside the statute of limitations however,
the plaintiff has the burden of pleading facts leading to a reasonable inference that
one of the tolling doctrines adopted by Delaware courts applies.”9 Although it is

clear that asbestos cases fall into the latent disease category, and the time begins to

 

7 DaBala’o v. URS Energy &Const., 85 A.3d 73, 79 (Del. 2014).

8 SPX Corp. v. Gara’a USA, lnc., 2012 WL 6841398, at *2 (Del. Super. Dec. 6, 2012).
9 Ia'. “To make this determination on a Civil Rule 12 motion, the court typically
conducts a three-part analysis,” and the court must look at the cause of action’s
accrual date, whether the plaintiff plead facts to create a reasonable inference that
the limitations period expired, and if a tolling exception was adequately plead, the
time that plaintiff was on inquiry notice of a claim based on the allegations See
Machala v. Boehringer Ingelheim Pharm., Inc., 2017 WL 2814728, at *6 (Del.
Super. June 29, 2017). The Court points out that this case is no longer at the Rule 12
motion stage, but the Court took these factors into consideration when analyzing the
statute of limitations Although asbestos falls into the latent disease category,
Plaintiff did not plead any facts to create a reasonable inference of the time that
Plaintiff was on inquiry notice.

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 attomey. Additionally, as Defendant
Borg-Warner pointed out7 Plaintiff did not provide any medical records, doctors
notes, or even a firm time period indicating a time that Mrs Bagwell discovered that
her husband’s lung cancer was attributable to asbestos Rather, Plaintiff essentially
asks the Court to assume that the first time Mrs Bagwell learned that her husband’s
cancer was asbestos related was after August of 2012, two and a half years after Mr.
Bagwell’s death, thus making June 2014 Complaint timely. In fact, Clyde Bagwell
testified that they learned of the hazards of asbestos exposure twenty years prior, and
Mrs. Bagwell thought about filing a lawsuit about a year after Mr. Bagwell passed
away. 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.

