The plaintiff brought suit in Delaware contending that David Bagwell contracted lung cancer from Pneumo Abex’s products. Bagwell was diagnosed in May 2009 and passed away from cancer on January 28, 2010. Plaintiff contacted an attorney regarding this matter in August or 2012. This matter was ultimately filed on June 2, 2014.
Under South Carolina law, the defendant argues that the plaintiff’s case must be dismissed because wrongful death claims must be filed within three years of the date of the decedent’s death. However, Delaware law states that when a cause of action arises outside of Delaware, an action cannot be brought in Delaware 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. The 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.
The court noted that the plaintiff’s argument was 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,” However, the plaintiff provided nothing for the court to analyze a statute of limitations date. Based on such a lack of evidence, the court could not infer, beyond speculation, that Ms. Bagwell became chargeable with knowledge that her husband’s disease was asbestos related was August 2012. Accordingly, Pneumo Abex’s motion for summary judgment was granted.