Heather Isringhausen Gvillo Feb. 12, 2014, 3:58pm

DOVER, Del. (Legal Newsline) - Justices of the Delaware Supreme Court ruled that defendants in an asbestos lawsuit should not be granted summary judgment on the grounds that the claim was made within the statute of limitations, reversing a superior court's decision.

Justices Randy J. Holland, Carolyn Berger and Henry duPont Ridgely filed the opinion reversing the lower court's decision on Feb. 7.

According to the opinion, delivered by Holland, plaintiffs Marlene and Paul DaBaldo, Jr. filed their lawsuit in 2009 against 19 defendants, including URS Energy & Construction and Crane Co., the two specific defendants addressed in the opinion.

URS and Crane Co. moved for summary judgment arguing that the claimants' allegations were barred under Delaware's two-year statute of limitations code for personal injury claims. The Superior Court agreed, granting summary judgment.

Paul DaBaldo alleges in his lawsuit that he developed pulmonary asbestosis after working at the Getty Tidewater Oil Refinery in Delaware from 1967 until 2001.

DaBaldo's war with asbestos-related diseases began in 1992 when he received a chest x-ray revealing "bilateral calcified pleural plaques suspicious for asbestosis exposure."

He underwent a CT Scan of his chest shortly after in October 1992, which found "multiple short segments of calcified or non-calcified pleural plaques."

DaBaldo further underwent a series of pulmonary functions tests in December 1992, which indicated normal lung functioning and failed to mention any disease.

DaBaldo continued visiting his primary care physician periodically until he had another chest x-ray in 1999, which indicated a "known history of asbestosis" and "multipled, calcified pleural plaques which were suggestive of asbestosis."

"The Superior Court granted defendants' motion for summary judgment after concluding that 'it is very clear from the record, from at least 1992 and - well, perhaps as early as 1992, and certainly no later than 1999, that the plaintiff knew that he had asbestosis, or, at a minimum, was on inquiry notice as to whether he had asbestosis,'" Holland wrote.

"An examination of the record reflects that the evidence does not support the Superior Court's ruling," he added.

Follow up chest x-rays in 2001 and 2005 revealed consistent findings with asbestos-related pleural disease and no other significant changes.

In 2007, DaBaldo contacted the law firm of Jacobs and Cumplar in Wilmington, Del., which referred him to Dr. Orn Eliasson.

Eliasson conducted a complete history and physical exam, listing asbestosis as the diagnosis with extensive bilateral interstitial fibrosis and bilateral calcified pleural plaques caused by his asbestos exposure.

DaBaldo filed his lawsuit on May 5, 2009

"Importantly, mere exposure to asbestos combined with symptoms that resemble an asbestos-related disease, without a definitive medical diagnosis, is not enough to charge the plaintiff with knowledge," Holland wrote.

The defendants argue that the claimant's testimony and medical records verify that he was aware of an asbestos-related disease as early as 1992, which only gave him until 1994 to appropriately bring a claim against the defendants.

DaBaldo understood his time parameters for the pleural disease, which is why the only issue before this court is when he became aware of his asbestosis diagnosis, Holland states.

"The two-year statute of limitations on asbestos-related personal injury claims 'begins to run when the plaintiff is chargeable with knowledge that his condition is attributable to asbestos exposure,'" he wrote.

DaBaldo contends that the bench ruling was based on "disease confusion."

Delaware is a multi-disease jurisdiction, meaning each distinct disease caused by asbestos exposure is subject to its own claim, as well as its own statute of limitations.

Put simply, each of the various asbestos-related diseases is recognized as a separate and distinct disease.

"Accordingly, DaBaldo's claim based on the pleural disease diagnosis is separate from his claim based on the asbestosis diagnosis for the purposes of the statute of limitations in this case," Holland wrote.

Therefore, DaBaldo clarifies that his claims should not be time-barred because he was only diagnosed with pleural disease in 1992 and was unaware of his asbestosis until 2007, separating the two cases.

However, the defense argues the 'disease confusion' theory was not fairly presented to the Superior Court, barring it.

The Supreme Court issued a four-factor test to determine when statute of limitations begins: the plaintiff's level of knowledge and education, the extent of his recourse to medical evaluation, the consistency of the medical diagnosis and DaBaldo's follow-up efforts during the period of latency following initial recourse to medical evaluation.

For the first test, Holland stated that no evidence on record suggests that the claimant's level of knowledge or education was above average, especially with regards to asbestos or asbestos-related diseases.

Secondly, DaBaldo sought medical attention and abided by his physician's suggestions. He also made sure to undergo regular follow-up x-rays.

DaBaldo's diagnoses were "largely consistent" as he maintained steady follow-ups, satisfying the third and fourth tests.

"The use of the word 'asbestosis' in the 1999 x-ray report was emphasized by the defendant URS during summary judgment hearings and found to be significant by the superior court," Holland stated. "However, there is no indication that this was ever reported to DaBaldo nor was there an actual diagnosis that DaBaldo has asbestosis."

The four-factor test solidified the Supreme Court's decision to reverse the lower court's summary judgment ruling.

"Our analysis of the four factors demonstrates that the statute of limitations on DaBaldo's asbestosis claim did not begin to run until July 2007, when DaBaldo learned for the first time of his asbestosis. Therefore, his complaint was timely when it was filed on May 5, 2009," Holland wrote.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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