© Valeriy-Fotolia
© Valeriy-Fotolia (Valeriy – Fotolia)

An individual diagnosed with two diseases related to workplace asbestos exposure can move forward with his personal injury case against his former employer because the statute of limitations had not run out with regard to the second disease, the Delaware Supreme Court has ruled.

The high court held that Delaware is a multi-disease jurisdiction where each separate diagnosis is a unique claim subject to individual limitations and reversed a Superior Court decision that the plaintiff’s claim was not timely.

Paul DaBaldo Jr. filed a complaint against 19 defendants, including URS Energy & Construction, a San Francisco engineering company, and Crane Co. of Stamford, Conn. URS acquired the company that formerly owned the Getty Tidewater Oil Refinery where DaBaldo worked from 1967 to 2001.

DaBaldo alleged in his lawsuit that he was diagnosed with a mild degree of asbestos-related pleural disease in 1992. However, after a series of tests, DaBaldo was found to have normal lung function. The plaintiff visited various doctors between 1999 and 2005 and was found to have had no significant change in the size and contour of his pleural calcification, according to court documents.

DaBaldo contacted the law firm of Jacobs & Crumplar in 2007 after a co-worker had announced that he had been diagnosed with asbestosis. The law firm referred DaBaldo to Dr. Orn Eliasson, who diagnosed the plaintiff with asbestosis and said DaBaldo’s calcified pleural plaques “were caused by his asbestos exposure to a reasonable degree of medical certainty,” according to the court’s opinion.

In 2009, DaBaldo filed a personal injury complaint in the Superior Court against URS, Crane and several asbestos manufacturers, sellers, distributors and installers. He alleged that their actions were responsible for the asbestosis. DaBaldo did not file a claim for the asbestos-related pleural disease.

A Superior Court judge held that Delaware’s two-year statute of limitations in asbestos cases barred DaBaldo from pursuing his claims because he was on notice of his asbestosis in 1992, when he was first diagnosed with pleural disease. DaBaldo appealed the trial court’s decision, arguing that under In re Asbestos Litigation, his claim did not toll until the 2007 asbestosis diagnosis. In In re Asbestos Litigation, a 1996 Delaware Supreme Court decision, a plaintiff cannot be on notice for a disease he does not have, even if the plaintiff subjectively believes he has the disease.

The defendants countered by alleging that DaBaldo was on notice of an asbestos-related disease in 1992, capping his window to file a complaint in 1994. In addition, the defendants contended that DaBaldo knew of the asbestosis in 1999 when an X-ray report indicated “a known history of asbestosis,” according to court documents.

A three-justice panel composed of Justices Randy J. Holland, Carolyn Berger and Henry duPont Ridgely sided with DaBaldo, ruling that each individual diagnosis should be viewed as a separate claim. Furthermore, the court concluded that his asbestosis claim tolled in 2007 when DaBaldo first learned he had the illness.

“The record reflects that DaBaldo was on notice that he had asbestosis only after he was actually diagnosed with asbestosis by Dr. Eliasson in 2007,” Holland said.

In reaching its conclusion, the court applied a four-factor test established in In re Asbestos Litigation to determine when the statute of limitations should start. Under the test, the court must review the plaintiff’s level of knowledge and education, the extent of his recourse to a medical evaluation, the consistency of the medical diagnosis, and the plaintiff’s follow-up efforts during the period of latency following initial medical evaluation.

Holland noted that DaBaldo had visited a doctor in 1992 and the pleural disease was only discovered after the doctor ordered a routine chest X-ray because he did not have one on file. In addition, DaBaldo’s diagnoses were largely consistent until 2001. Holland said that the word “asbestosis” first appeared in 1999, but that was as part of the X-ray report and there was no indication that it was reported to DaBaldo, nor was there an actual diagnosis that DaBaldo had asbestosis.

“A statement that findings are compatible with asbestosis is not equivalent to a medical diagnosis of asbestosis,” Holland said. “The disease that DaBaldo was diagnosed with in 1992, and which was reconfirmed in 1999, was pleural disease, not asbestosis.”

The Supreme Court also concluded that DaBaldo had followed up with doctors between 1999 and 2005 and had two separate X-ray reports, one in 2001 and one in 2005. Neither X-ray report found “significant change” in the asbestos-related pleural disease.

“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,” Holland said. “Therefore, his complaint was timely when it was filed on May 5, 2009.”

Thomas C. Crumplar of Jacobs & Crumplar represented DaBaldo.

URS was represented by Joel M. Doner and Christopher C. Popper of Eckert Seamans Cherin & Mellott. Francis C. Gondek and Patrick M. Brannigan of Swartz Campbell represented Crane Co.

Crumplar, Doner and Gondek did not immediately return calls seeking comment.  ???