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,

v.

BORGWARNER MORSE TEC, LLC,

et al.,

Defendants.

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) C.A. No. N14C-06-023 ASB

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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.