ERIC M. DAVIS, J.
This is civil tort action. In this action, Plaintiff Roderick Stillwell alleges that, due to Defendants' wrongful conduct, Mr. Stillwell was exposed to asbestos and, as a result of that exposure, developed asbestosis.
Now before the Court is Defendants' Motion to Dismiss Based on Application of the Delaware "Borrowing Statute" (the "Motion").
For the reasons set forth in this opinion, the Motion is
Mr. Stillwell first sought treatment for his injuries at a VA hospital in Fresno, California in April of 2009. This treatment followed an emergency room visit on March 30, 2009, during which Mr. Stillwell was treated as having bronchitis.
On April 29, 2009, the VA advised Mr. Stillwell that he had "increased interstitial markings," and ordered a CT scan.
Mr. Stillwell applied for disability benefits with the VA on May 22, 2009. On Mr. Stillwell's application for disability benefits (the "Application"), Mr. Stillwell indicated the injury for which he was claiming benefits was "Asbestosis/Lung Condition."
On June 25, 2009, the VA wrote to Mr. Stillwell, requesting more information on his asbestosis and lung condition. In his response Mr. Stillwell stated that he was "responding to the VA letter dated 06/25/2009 in regards to the asbestosis, lung condition."
Mr. Stillwell contends that he did not have a medical diagnosis of asbestosis until Mr. Stillwell was diagnosed with asbestosis by Dr. Martin Lauber in late September 2009. In Dr. Lauber's September 29, 2009 report, Dr. Lauber states the following: "While not proven it is more likely than not that the veteran's current pulmonary symptoms are due to asbestos related disease and therefore service connection should be considered."
Mr. Stillwell filed this Complaint on September 12, 2012. Defendants filed the Motion on April 11, 2014. In the Complaint, Mr. Stillwell asserted that Maritime law was the substantive law governing the case.
Defendants' Supplemental Submission in Support of Motion to Dismiss (the "Supplement") was filed on April 25, 2014. Plaintiff's Response to Defendants' Motion for Summary Judgment as to Statute of Limitations (the "Response") was filed on May 1, 2014. Defendants' Reply in Support of Motion to Dismiss (the "Reply") was filed on May 5, 2014. A hearing was held on the Motion on May 8, 2014, at which point the Court took the Motion under advisement.
Defendants contend that Mr. Stillwell's claims are time barred regardless of whether the two-year Delaware statute of limitations is used pursuant to Delaware's "Borrowing Statute" or the three-year Maritime statute of limitations is used. Defendants argue that Mr. Stillwell was chargeable with knowledge of his asbestosis well before September 12, 2009 — the latest date in which the statute could have begun to accrue and still allow the Complaint to have been timely. Defendants assert that Mr. Stillwell must be chargeable with knowledge of his injury before the date in which Mr. Stillwell filed his claims for disability benefits with the VA. As evidence of this, Defendants note that (i) Mr. Stillwell claimed asbestosis as a disability on the Application on May 22, 2009, and (ii) Mr. Stillwell was diagnosed with and treated for that condition at the Fresno VAMC beginning March 30, 2009. Therefore, Defendants contend that regardless of whether a three-year or two-year statute of limitations applies, Mr. Stillwell's claims are time barred.
Mr. Stillwell contends that the statute of limitations did not begin to accrue until late September 2009 because up until that point, Mr. Stillwell did not have a certain medical diagnosis of asbestosis. Mr. Stillwell argues that, regardless of whether or not he applied for disability based on his asbestosis or had a subjective belief that he had asbestosis, there was no definitive medical diagnosis until Dr. Lauber diagnosed Mr. Stillwell on September 26, 2009. Mr. Stillwell argues that this puts his Complaint within the three-year statute of limitations applicable to Maritime law — the law that Mr. Stillwell maintains is the substantive law governing the case.
STANDARD OF REVIEW
Upon a motion to dismiss "matters outside the pleadings such as affidavits and depositions may be considered and the motion treated as one for summary judgment."
If, however, the record reveals that material facts are in dispute, or if the factual record has not been developed thoroughly enough to allow the Court to apply the law to the factual record, then summary judgment will not be granted.
For purposes of the Motion, the Court will assume that the longer three-year Maritime statute of limitations applies. Even with the longer statute of limitations, Mr. Stillwell has still failed to file his Complaint within the applicable statute of limitations. In order for Mr. Stillwell to have timely filed his Complaint, Mr. Stillwell cannot be charged with knowledge of his asbestosis earlier than September 12, 2009. Based on the record of this case, however, the Court finds that Mr. Stillwell can be charged with knowledge before that date.
The Supreme Court of Delaware has addressed the issue of when the statute of limitations begins to run in cases involving asbestos exposure. "The period begins to run when the plaintiff is chargeable with knowledge that his condition is attributable to asbestos exposure."
Mr. Stillwell argues that because there was uncertainty in Mr. Stillwell's diagnosis of asbestosis until late September 2009, the statute did not begin to run until that point. This argument ignores the vast array of evidence showing that Mr. Stillwell was diagnosed with asbestosis and could be chargeable with knowledge of that diagnosis before September 12, 2009. On May 22, 2009, Mr. Stillwell filed a sworn, disability claim asserting that he suffered from asbestosis and had been diagnosed and treated for that disease. Indeed, Mr. Stillwell was successful in this claim and was awarded disability benefits dating back to May 29, 2009 (the date in which his claims were received by the VA).
Further, Mr. Stillwell stated in his deposition that he filed his disability claim based on the recommendation of a lung specialist he consulted with about his condition prior to May 22, 2009. These facts indicate that at the time of filing his claim for disability benefits, which was successful, Mr. Stillwell was aware that he had asbestosis and that he had in fact been diagnosed with the condition. Based on this evidence, it is clear that the circumstance before this Court is not akin to a situation where a plaintiff has a subjective belief that he has an asbestos related injury accompanied by symptoms, but has not received a medical diagnosis of the injury. Mr. Stillwell was certain enough of his condition and diagnosis to file and successfully establish a claim for disability benefits premised on his asbestosis. Under these circumstances, Mr. Stillwell must be chargeable with knowledge of his condition before he filed the Application on May 22, 2009.
The Supreme Court had articulated a four-factor test for determining when the statute of limitations begins to run in cases involving asbestos related injuries:
With regards to the first factor of the test — Mr. Stillwell's "level of knowledge and education" — although Mr. Stillwell only has an eighth grade education, he appears to have been fairly informed about the nature of asbestosis. In Mr. Stillwell's deposition, he indicated that he was familiar with asbestosis before submitting his disability claims in May of 2009.
This indicates that Mr. Stillwell had adequate knowledge and experience to have been chargeable with knowledge of his medical diagnosis of asbestosis before he filed for disability benefits in May 2009. Therefore, this factor of the test weighs in favor of Mr. Stillwell being chargeable with knowledge of his injury prior to September of 2009.
As to the second factor of the test — the extent of Mr. Stillwell's "recourse to medical evaluation" — Mr. Stillwell was well informed about his condition before filing for disability and certainly before September 12, 2009 based on the steps he took in pursuing treatment. On April 29, 2009, the VA informed Mr. Stillwell that he had "increased interstitial markings."
On, May 5, 2009 the VA noted that the CT scan showed that Mr. Stillwell had "[m]ild to moderate interstitial fibrosis changes." Mr. Stillwell stated, during his deposition, that the VA discussed these results with him, referring him to a pulmonary specialist for further examination.
With regards to the third factor of the test — "the consistency of the medical diagnosis," &mdash Mr. Stillwell's diagnoses were largely consistent. As illustrated above, Mr. Stillwell's medical records indicate that his medical professionals consistently found that he has "interstitial fibrotic changes." Although Dr. Baylor mentioned that it was difficult to say whether Mr. Stillwell's symptoms were caused by asbestos or by Mr. Stillwell's obesity, Dr. Baylor stated that Mr. Stillwell "likely has asbestosis."
With regards to the fourth factor of the test — "plaintiff's follow-up efforts during the period of latency following initial recourse to medical evaluation" — there does not appear to be any delay in Mr. Stillwell pursuing medical treatment for his asbestosis. Therefore, this factor does not appear to apply, but certainly does not weigh in favor of Mr. Stillwell's claim that he cannot be chargeable with knowledge of his condition until after September 12, 2009.
For the reasons discussed above the Supreme Court's four-factor test supports this Courts determination that Mr. Stillwell is chargeable with knowledge of his asbestosis prior to September 12, 2009. Accordingly, the statute of limitations on Mr. Stillwell's claims began to run — at the very latest — by the time Mr. Stillwell filed for disability benefits on May 22, 2009. As a result, even assuming that the longer, three-year Maritime statute of limitations applies, Mr. Stillwell has failed to timely file his Complaint. Therefore Mr. Stillwell's claims are barred by the statute of limitations.
As illustrated by the above arguments, Mr. Stillwell's claims are time barred by the applicable statute of limitations because Mr. Stillwell has failed to timely file his Complaint. Consequently, no genuine issue as to any material fact remains to be litigated and Defendants are entitled to judgment as a matter of law. Therefore, the Motion is