                IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                          IN AND FOR NEW CASTLE COUNTY
RODERICK STILLWELL,                                    )
                                                       ) ASBESTOS
                       Plaintiff,                      )
                                                       ) C.A. No.: N12C-09-071 ASB
                v.                                     )
                                                       ) JURY TRIAL DEMANDED
CRANE CO., et al.,                                     )
                                                       )
                       Defendants.                     )



                                    Submitted:       May 8, 2014
                                    Decided:         August 29, 2014

                                    Upon Defendants’ Motion to Dismiss
                                              GRANTED

David T. Crumplar, Esquire, Jacobs & Crumplar, P.A., Wilmington, Delaware and Ben Vinson,
Esquire, Ben A. Vinson, Jr. Attorney, Tampa Florida Attorneys for Plaintiff.

Loreto P. Rufo, Esquire, Rufo Associates, PA, Hockessin, Delaware Attorney for Defendants.

DAVIS, J.

                                              INTRODUCTION

        This is civil tort action. In this action, Plaintiff Roderick Stillwell alleges that, due to

Defendants’ wrongful conduct, Mr. Stillwell was exposed to asbestos and, as a result of that

exposure, developed asbestosis.

        Now before the Court is Defendants’ Motion to Dismiss Based on Application of the

Delaware “Borrowing Statute” (the “Motion”). 1 In the Motion, Defendants contend that Mr.

Stillwell’s claims are barred by the applicable statute of limitations. Defendants argue that Mr.

Stillwell’s claims are barred regardless of whether the three-year Maritime statute applies or
1
 Normally, the Court would list the names of the specific defendants moving for relief. In this case, however, the
collective Defendants in this civil action, by and through Defense Coordinating Counsel, submitted the Motion.
whether the Delaware two-year statute of limitations applies under the “Borrowing Statute.” Mr.

Stillwell opposes the Motion, arguing that the three-year Maritime statute of limitations applies.

Mr. Stillwell maintains that he filed his claims within the applicable statute of limitations

because he did not have a definitive medical diagnosis of asbestosis until late September 2009.

In response, Defendants point out that in May of 2009 Mr. Stillwell filed a claim for disability

benefits with the United States Department of Veteran’s Administration (the “VA”) claiming that

he had been diagnosed with asbestosis.

        For the reasons set forth in this opinion, the Motion is GRANTED.

                                    FACTUAL BACKGROUND

        Mr. Stillwell first sought treatment for his injuries at a VA hospital in Fresno, California

in April of 2009. This treatment followed an emergency room visit on March 30, 2009, during

which Mr. Stillwell was treated as having bronchitis. 2 After Mr. Stillwell’s symptoms failed to

subside he sought treatment at the Fresno VA hospital.

        On April 29, 2009, the VA advised Mr. Stillwell that he had “increased interstitial

markings,” and ordered a CT scan. 3 On May 5, 2009 the VA noted in Mr. Stillwell’s medical

records that the CT scan revealed “interstitial fibrotic changes.” 4 In his deposition, Mr. Stillwell

indicated that the VA discussed the results of the CT scan with him. “They told me that based on

the information they had on my service history and the asbestos that they suspected was in my

lungs, that I probably had an infectious – asbestos disease of some sort.” 5 After the VA




2
  Defs.’ Supplement, Ex. N at 1.
3
  Id. at 3.
4
  Id. at 4.
5
  The Motion, Ex. D at 195:21-25.

                                                  2
discussed the results of the CT scan, Mr. Still indicated that he received further examination

from a lung specialist who recommended that Mr. Stillwell apply for government disability. 6

         Mr. Stillwell applied for disability benefits with the VA on May 22, 2009. On Mr.

Stillwell’s application for disability benefits (the “Application”), Mr. Stillwell indicated the

injury for which he was claiming benefits was “Asbestosis/Lung Condition.” 7 Mr. Stillwell also

indicated that this condition was caused by his “in-service exposure to asbestos while stationed

on [the] USS Ticonderoga/CVA-14.” 8 In the Application, Mr. Stillwell further stated: “I’ve been

diagnosed & treated at the Fresno VAMC; Please obtain any & all records necessary.” 9

         On June 25, 2009, the VA wrote to Mr. Stillwell, requesting more information on his

asbestosis and lung condition. In his response Mr. Stillwell stated that he was “responding to the

VA letter dated 06/25/2009 in regards to the asbestosis, lung condition.” 10 Mr. Stillwell included

a June 22, 2009 report from Peter Baylor, M.D., a pulmonary specialist. In that report, Dr.

Baylor, noted “CT scan shows some changes consistent with early interstitial fibrosis.” Dr.

Baylor also noted that it was “hard to know whether he has IFP due to asbestos or restriction due

to obesity. He likely has asbestosis.” 11 Mr. Stillwell also submitted a statement in support of his

disability claim on September 1, 2009, stating that he recently learned that a shipmate of his,

Tom Nau, had “Asbestosis too.” 12

         Mr. Stillwell contends that he did not have a medical diagnosis of asbestosis until Mr.

Stillwell was diagnosed with asbestosis by Dr. Martin Lauber in late September 2009. In Dr.

Lauber’s September 29, 2009 report, Dr. Lauber states the following: “While not proven it is


6
  Id. at 197:10-13.
7
  Defs.’ Supplement, Ex. H at 7.
8
  Id. at 7.
9
  Id. at 7.
10
   Defs.’ Supplement, Ex. J at 1.
11
   Id. at 9.
12
   Defs.’ Supplement, Ex. K.

                                                  3
more likely than not that the veteran’s current pulmonary symptoms are due to asbestos related

disease and therefore service connection should be considered.” 13 On October 30, 2009, the VA

issued a decision granting Mr. Stillwell disability benefits dating back to May 29, 2009. 14

        Mr. Stillwell filed this Complaint on September 12, 2012. Defendants filed the Motion

on April 11, 2014. In the Complaint, Mr. Stillwell asserted that Maritime law was the

substantive law governing the case. 15 On April 7, 2014, Mr. Stillwell moved the Court to declare

that New York substantive law governed the case. However, on April 16, 2014 Mr. Stillwell

again moved to declare Maritime law the substantive law governing the case.

        Defendants’ Supplemental Submission in Support of Motion to Dismiss (the

“Supplement”) was filed on April 25, 2014. Plaintiff’s Response to Defendants’ Motion for

Summary Judgment as to Statute of Limitations (the “Response”) was filed on May 1, 2014.

Defendants’ Reply in Support of Motion to Dismiss (the “Reply”) was filed on May 5, 2014. A

hearing was held on the Motion on May 8, 2014, at which point the Court took the Motion under

advisement.

                                  PARTIES’ CONTENTIONS

        Defendants contend that Mr. Stillwell’s claims are time barred regardless of whether the

two-year Delaware statute of limitations is used pursuant to Delaware’s “Borrowing Statute” or

the three-year Maritime statute of limitations is used. Defendants argue that Mr. Stillwell was

chargeable with knowledge of his asbestosis well before September 12, 2009 – the latest date in

which the statute could have begun to accrue and still allow the Complaint to have been timely.

Defendants assert that Mr. Stillwell must be chargeable with knowledge of his injury before the

date in which Mr. Stillwell filed his claims for disability benefits with the VA. As evidence of

13
   Pls.’ Response, Ex. A.
14
   Defs.’ Supplement, Ex. O.
15
   Compl. ¶ 11.

                                                 4
this, Defendants note that (i) Mr. Stillwell claimed asbestosis as a disability on the Application

on May 22, 2009, and (ii) Mr. Stillwell was diagnosed with and treated for that condition at the

Fresno VAMC beginning March 30, 2009. Therefore, Defendants contend that regardless of

whether a three-year or two-year statute of limitations applies, Mr. Stillwell’s claims are time

barred.

          Mr. Stillwell contends that the statute of limitations did not begin to accrue until late

September 2009 because up until that point, Mr. Stillwell did not have a certain medical

diagnosis of asbestosis. Mr. Stillwell argues that, regardless of whether or not he applied for

disability based on his asbestosis or had a subjective belief that he had asbestosis, there was no

definitive medical diagnosis until Dr. Lauber diagnosed Mr. Stillwell on September 26, 2009.

Mr. Stillwell argues that this puts his Complaint within the three-year statute of limitations

applicable to Maritime law -- the law that Mr. Stillwell maintains is the substantive law

governing the case.

                                        STANDARD OF REVIEW

          Upon a motion to dismiss “matters outside the pleadings such as affidavits and

depositions may be considered and the motion treated as one for summary judgment.” 16 The

standard of review on a motion for summary judgment is well-settled. The Court’s principal

function when considering a motion for summary judgment is to examine the record to determine

whether genuine issues of material fact exist, “but not to decide such issues.” 17 Summary

judgment will be granted if, after viewing the record in a light most favorable to a non-moving




16
  Brown v. Colonial Chevrolet Co., 249 A.2d 439, 441 (Del. Super. 1968).
17
  Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del.Super.Ct. 1973).

                                                         5
party, no genuine issues of material fact exist and the moving party is entitled to judgment as a

matter of law. 18

         If, however, the record reveals that material facts are in dispute, or if the factual record

has not been developed thoroughly enough to allow the Court to apply the law to the factual

record, then summary judgment will not be granted. 19 The moving party bears the initial burden

of demonstrating that the undisputed facts support his claims or defenses. 20 If the motion is

properly supported, then the burden shifts to the non-moving party to demonstrate that there are

material issues of fact for the resolution by the ultimate fact-finder. 21

                                                 DISCUSSION

         For purposes of the Motion, the Court will assume that the longer three-year Maritime

statute of limitations applies. Even with the longer statute of limitations, Mr. Stillwell has still

failed to file his Complaint within the applicable statute of limitations. In order for Mr. Stillwell

to have timely filed his Complaint, Mr. Stillwell cannot be charged with knowledge of his

asbestosis earlier than September 12, 2009. Based on the record of this case, however, the Court

finds that Mr. Stillwell can be charged with knowledge before that date.

         The Supreme Court of Delaware has addressed the issue of when the statute of limitations

begins to run in cases involving asbestos exposure. “The period begins to run when the plaintiff

is chargeable with knowledge that his condition is attributable to asbestos exposure.” 22 “Mere

exposure to asbestos accompanied by symptomatology associated with asbestosis may not

suffice, however, to render a plaintiff chargeable with knowledge that his harm is attributable to

18
   Merrill, 606 A.2d at 99-100; Dorr-Oliver, 312 A.2d at 325.
19
   Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962). See also Cook v. City of Harrington, 1990 WL 35244 at
*3 (Del.Super.Ct. Feb. 22, 1990)(citing Ebersole, 180 A.2d at 467)(“Summary judgment will not be granted under
any circumstances when the record indicates … that it is desirable to inquire more thoroughly into the facts in order
to clarify the application of law to the circumstances.”).
20
   Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970)(citing Ebersole, 180 A.2d at 470).
21
   See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).
22
   In re Asbestos Litig., 673 A.2d 159, 162 (Del. 1996).

                                                          6
asbestos exposure where there is uncertainty in medical diagnosis.” 23 “When either plaintiff's

knowledge or the reasonableness of his actions are in dispute in the light of conflicting evidence

in the record the issue is best left to the jury.” 24

           Mr. Stillwell argues that because there was uncertainty in Mr. Stillwell’s diagnosis of

asbestosis until late September 2009, the statute did not begin to run until that point. This

argument ignores the vast array of evidence showing that Mr. Stillwell was diagnosed with

asbestosis and could be chargeable with knowledge of that diagnosis before September 12, 2009.

On May 22, 2009, Mr. Stillwell filed a sworn, disability claim asserting that he suffered from

asbestosis and had been diagnosed and treated for that disease. Indeed, Mr. Stillwell was

successful in this claim and was awarded disability benefits dating back to May 29, 2009 (the

date in which his claims were received by the VA).

           Further, Mr. Stillwell stated in his deposition that he filed his disability claim based on

the recommendation of a lung specialist he consulted with about his condition prior to May 22,

2009. These facts indicate that at the time of filing his claim for disability benefits, which was

successful, Mr. Stillwell was aware that he had asbestosis and that he had in fact been diagnosed

with the condition. Based on this evidence, it is clear that the circumstance before this Court is

not akin to a situation where a plaintiff has a subjective belief that he has an asbestos related

injury accompanied by symptoms, but has not received a medical diagnosis of the injury. Mr.

Stillwell was certain enough of his condition and diagnosis to file and successfully establish a

claim for disability benefits premised on his asbestosis. Under these circumstances, Mr. Stillwell

must be chargeable with knowledge of his condition before he filed the Application on May 22,

2009.


23
     Id.
24
     Id.

                                                        7
        The Supreme Court had articulated a four-factor test for determining when the statute of

limitations begins to run in cases involving asbestos related injuries:

        In order to determine when the statute of limitations begins to run, this Court has
        adopted a four factor test: “(1) the plaintiff's level of 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 during the period of
        latency following initial recourse to medical evaluation.” 25

        With regards to the first factor of the test – Mr. Stillwell’s “level of knowledge and

education” –although Mr. Stillwell only has an eighth grade education, he appears to have been

fairly informed about the nature of asbestosis. In Mr. Stillwell’s deposition, he indicated that he

was familiar with asbestosis before submitting his disability claims in May of 2009.

        Q. After the doctor told you that you had asbestos or what he thought was
        asbestos in your lungs and an asbestos condition, did you ever ask him what he
        meant about that or meant by that?

        MR. VINSON: Objection.

        THE WITNESS: No, I don’t think so. Because I was pretty familiar by that time.
        I had a fellow shipmate that had it.

        BY MR. LEES:
        Q. You said you had a fellow shipmate that had it. What do you mean by that,
        sir?

        MR. VINSON: Objection

        THE WITNESS: I had a fellow shipmate who had asbestosis. 26

        This indicates that Mr. Stillwell had adequate knowledge and experience to have been

chargeable with knowledge of his medical diagnosis of asbestosis before he filed for disability

benefits in May 2009. Therefore, this factor of the test weighs in favor of Mr. Stillwell being

chargeable with knowledge of his injury prior to September of 2009.


25
   DaBaldo v. URS Energy & Const., 85 A.3d 73, 79 (Del. 2014) (quoting In re Asbestos Litig., 673 A.2d 159, 163
(Del. 1996)).
26
   The Motion, Ex. D at 201:23-202:11.

                                                       8
        As to the second factor of the test – the extent of Mr. Stillwell’s “recourse to medical

evaluation” – Mr. Stillwell was well informed about his condition before filing for disability and

certainly before September 12, 2009 based on the steps he took in pursuing treatment. On April

29, 2009, the VA informed Mr. Stillwell that he had “increased interstitial markings.” 27 In Mr.

Stillwell’s medical records the doctor further notes that Mr. Stillwell “verbalized understanding

of the above impressions and plans.” 28

        On, May 5, 2009 the VA noted that the CT scan showed that Mr. Stillwell had “[m]ild to

moderate interstitial fibrosis changes.” Mr. Stillwell stated, during his deposition, that the VA

discussed these results with him, referring him to a pulmonary specialist for further

examination. 29 In June 2009, Dr. Baylor indicated that Mr. Stillwell’s CT scan showed changes

“consistent with early interstitial fibrosis” and further stated that Mr. Stillwell likely had

asbestosis.” 30 Based on Mr. Stillwell’s medical treatment up until September 12, 2009, this

factor of the test weighs in favor of finding that Mr. Stillwell was chargeable with knowledge of

his condition prior to that date.

        With regards to the third factor of the test – “the consistency of the medical diagnosis,” –

Mr. Stillwell’s diagnoses were largely consistent. As illustrated above, Mr. Stillwell’s medical

records indicate that his medical professionals consistently found that he has “interstitial fibrotic

changes.” Although Dr. Baylor mentioned that it was difficult to say whether Mr. Stillwell’s

symptoms were caused by asbestos or by Mr. Stillwell’s obesity, Dr. Baylor stated that Mr.

Stillwell “likely has asbestosis.” 31 Therefore, Mr. Stillwell’s medical diagnoses appear to be



27
   Defs.’ Supplement, Ex. N at 3.
28
   Id.
29
   The Motion, Ex. D at 197:10-13.
30
   Defs.’ Supplement, Ex. J at 9.
31
   Id.

                                                   9
consistent. Consequently, this factor of the test also weighs in favor of finding Mr. Stillwell to

be chargeable with knowledge of his condition prior to September 12, 2009.

        With regards to the fourth factor of the test – “plaintiff's follow-up efforts during the

period of latency following initial recourse to medical evaluation” – there does not appear to be

any delay in Mr. Stillwell pursuing medical treatment for his asbestosis. Therefore, this factor

does not appear to apply, but certainly does not weigh in favor of Mr. Stillwell’s claim that he

cannot be chargeable with knowledge of his condition until after September 12, 2009.

        For the reasons discussed above the Supreme Court’s four-factor test supports this Courts

determination that Mr. Stillwell is chargeable with knowledge of his asbestosis prior to

September 12, 2009. Accordingly, the statute of limitations on Mr. Stillwell’s claims began to

run – at the very latest – by the time Mr. Stillwell filed for disability benefits on May 22, 2009.

As a result, even assuming that the longer, three-year Maritime statute of limitations applies, Mr.

Stillwell has failed to timely file his Complaint. Therefore Mr. Stillwell’s claims are barred by

the statute of limitations.

                                          CONCLUSION

        As illustrated by the above arguments, Mr. Stillwell’s claims are time barred by the

applicable statute of limitations because Mr. Stillwell has failed to timely file his Complaint.

Consequently, no genuine issue as to any material fact remains to be litigated and Defendants are

entitled to judgment as a matter of law. Therefore, the Motion is GRANTED and judgment is

entered in favor of Defendants.

        IT IS SO ORDERED.

                                               /s/ Eric M. Davis
                                               Eric M. Davis
                                               Judge


                                                  10
