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.
