Summary Judgment Granted For Plaintiff’s Failure to File Complaint Within the Statute of Limitations

Ms. Bagwell filed suit against several defendants, alleging her husband developed lung cancer from asbestos related to Borg Warner clutches. The plaintiff’s brother was the sole fact witness who recalled his brother performing clutch work starting in 1965 through the 1980s approximately one time per week. The plaintiff’s expert report stated that the plaintiff was exposed to asbestos containing products including exposure to asbestos from the clutches. Mr. Bagwell was diagnosed in May of 2009 and passed away on January 28, 2010. The plaintiff’s complaint was not filed until June of 2014. Accordingly, the defendant argued the plaintiff’s complaint was barred under South Carolina law based on the applicable statute of limitations.

The court noted that Delaware rule prohibited bringing an action arising outside of the state when that state’s limitation has already expired. Here, a limitation of two years is applied in a personal injury matter from the date of injury. The plaintiff countered and stated that a personal injury action begins to run in Delaware once the plaintiff has knowledge of the injury. The test for knowledge includes 1) plaintiff’s knowledge and education 2) the extent of his recourse to medical evaluation 3) the consistency of the medical diagnosis and 4) the plaintiff’s follow up efforts after the first medical evaluation. The court agreed with the plaintiff’s analysis of the rule on limitations but found nothing put forth by the plaintiff to support her notation that her complaint fit the analysis.

The court went on to confirm that “ 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” but the court could not conclude when Ms. Bagwell first knew the decedent’s disease was related to asbestos. Consequently, summary granted was entered in favor of defendant.

Read the full decision here.