Clineff v. BP Amoco Chemical Co. (In re Asbestos Litigation, 2011)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, July 8, 2011).

Three adult children of Ronald Clineff, Sr. sued after his death in September 1997. He had worked as a laboratory technician at the Avisun/Amoco plant in New Castle, Delaware, from 1959 to early 1970. The family alleged that various defendants exposed him to asbestos and caused his mesothelioma. The death certificate, obtained in December 1997, listed metastatic malignant mesothelioma as the cause of death. The children read it but did not know what mesothelioma meant and assumed smoking was the cause. They learned of the asbestos connection only in late December 2006 and sued in October 2008. BP Amoco Chemical, BP Corporation North America and Kvaerner U.S. moved for summary judgment under Delaware's two-year personal injury limitations statute. The court granted the motions. It relied on its earlier ruling on laches and also found that the plaintiffs were on inquiry notice in December 1997. Mesothelioma was widely known to be linked to asbestos, and the plaintiffs made no effort to find out the cause until 2006. The suit was therefore nearly nine years late.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Delaware Superior Court
• Decided: July 8, 2011
• Stage: Summary judgment
• State: Delaware

Outcome. The court granted summary judgment to BP Amoco Chemical Company, BP Corporation North America Inc., and Kvaerner U.S. Inc. because the plaintiffs' claims were filed after the two-year limitations period expired.

What the court held. In an asbestos case the limitations period begins when the plaintiff is chargeable with knowledge that the condition is attributable to asbestos exposure; reviewing a death certificate listing mesothelioma put the plaintiffs on inquiry notice, so the discovery rule tolled the period only until December 1997.

Issues decided: Statute of Limitations, Trial Procedure and Discovery.

The people and their exposure

• Ronald Clineff, Sr.: mesothelioma; died

Who	Work	Where	When	Products
Ronald Clineff, Sr.	laboratory technician (refineries and petrochemical plants)	Avisun/Amoco plant, New Castle, Delaware	1959-1970

The defendants

• BP Amoco Chemical Company (premises owner)
• BP Corporation North America Inc. (premises owner)
• Kvaerner U.S. Inc.

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• In re Asbestos Litigation (May 9, 2006). The court denied DaimlerChrysler's motion in limine to exclude the plaintiffs' experts on general causation, so the plaintiffs' experts may testify that automotive friction products increase the risk of asbestosis, lung cancer and mesothelioma.
• Grenier v. General Motors Corp. (In re Asbestos Litigation) (April 8, 2009). On remand from the Delaware Supreme Court, the Superior Court concluded that, despite factual errors in its earlier opinion, it properly denied General Motors' and Ford's motion to exclude plaintiffs' general causation expert testimony, so Grenier's experts remained admissible.
• Freeman v. Georgia-Pacific (In re Asbestos Litigation) (January 13, 2011). The court denied Georgia-Pacific's motion for summary judgment because plaintiffs raised a genuine dispute of fact about whether Wilburn Freeman was exposed to Georgia-Pacific's asbestos-containing joint compound.
• Olson v. Crane Co. (In re Asbestos Litigation) (January 18, 2011). The Delaware Superior Court granted summary judgment to defendants Crane Co. and CBS Corp. (Westinghouse) against plaintiffs, holding Idaho law would not make them liable for other manufacturers' asbestos-containing parts.
• Cruz v. Georgia-Pacific (In re Asbestos Litigation) (January 19, 2011). The court granted Georgia-Pacific's motion for summary judgment, ruling that plaintiffs could not show under Texas law that exposure to its Ready Mix joint compound was a substantial factor in causing Cruz's mesothelioma.
• Ashworth v. Pneumo Abex (In re Asbestos Litigation) (February 14, 2011). The court granted Pneumo Abex's summary judgment motion on the survival action as time-barred, but denied it on the wrongful death claim, which was timely and had factual disputes on causation and product identification.
• James v. Albany Int'l (In re Asbestos Litigation) (February 16, 2011). The court granted Albany International's motion for summary judgment against plaintiff Charlene James because there was no non-speculative evidence that Robert James was exposed to an asbestos-containing Albany product.
• Newman v. Avocet Enterprises (In re Asbestos Litigation) (March 15, 2011). The court denied Avocet Enterprises' motion for summary judgment on the Newmans' remaining claims, because Newman's testimony about using Ventbestos raised a factual dispute on causation, and found the motion moot as to the withdrawn conspiracy claim.
• Henderson v. Dana Companies (In re Asbestos Litigation) (March 22, 2011). The court granted in part and denied in part the plaintiffs' post-trial motion for costs against Dana and Zoom, awarding $14,597.12 in costs plus pre- and post-judgment interest.
• Foucha v. CertainTeed Corp. (In re Asbestos Litigation) (May 31, 2011). The court granted CertainTeed Corp.'s motion for summary judgment, ruling against plaintiffs Raymond and Sussanah Foucha because they lacked evidence that he was exposed to an asbestos-containing CertainTeed product.
• Foucha v. Georgia-Pacific (In re Asbestos Litigation) (June 3, 2011). The court granted Georgia-Pacific's motion for summary judgment against Raymond and Sussanah Foucha because they could not show without speculation that Foucha was exposed to asbestos from Georgia-Pacific joint compound.
• Bowser v. Parker-Hannifin Corp. (In re Asbestos Litigation) (June 3, 2011). The court granted Parker-Hannifin's summary judgment motion in part (strict liability count and helicopter brake exposures before 1967) and denied it as to the airplane brake claims, so Plaintiff Jenny Bowser's remaining claims proceed.
• Davis v. Crane Co. (In re Asbestos Litigation) (June 7, 2011). The court granted Crane Co.'s motion for summary judgment against plaintiff Wesley Davis, finding he had not shown Crane-supplied asbestos products were a substantial factor in causing his mesothelioma.
• Gordon v. Dana Companies (In re Asbestos Litigation) (November 16, 2011). The court granted summary judgment to Dana (Victor gaskets) and UOP, and denied summary judgment to Elliott, Armstrong and Born, so the plaintiffs' claims against those three go forward.
• McCoy v. PolyVision Corp. (In re Asbestos Litigation) (February 21, 2012). The court granted summary judgment to PolyVision Corp. against Janine and Marvin McCoy, predicting Pennsylvania law imposes no duty on an employer or premises owner to an employee's spouse for take-home asbestos exposure.
• Galliher v. R. T. Vanderbilt (In re Asbestos Litigation) (May 9, 2012). The court allowed plaintiff's late-disclosed geologist (Fitzgerald) to testify, excluded plaintiff's other late expert (Dr. Rigler), continued the trial to July 16, 2012 so defendant R. T. Vanderbilt could develop rebuttal evidence, and sanctioned defendant's out-of-state counsel $5000.
• Farrall v. Ford Motor Co. (In re Asbestos Litigation) (August 19, 2013). The court denied the plaintiff's motion for reargument, leaving in place its grant of summary judgment for Ford Motor Company on the failure to warn claim about asbestos-containing replacement parts.
• Muse v. Honeywell Int'l (In re Asbestos Litigation) (December 31, 2014). The court denied the plaintiffs' motion for reargument, leaving in place summary judgment for Honeywell International Inc. against James Muse and Clarice Roberts-Muse.
• Harris v. Deere & Co. (In re Asbestos Litigation) (May 10, 2017). The court granted Deere & Company's motion for summary judgment, ruling for Deere against the plaintiff, because under North Carolina law the plaintiff offered no evidence beyond speculation that the asbestos-containing parts he worked on were made or sold by Deere.
• Kivell v. Air Prods. and Chemicals (In re Asbestos Litigation) (August 30, 2017). The court granted Air Products and Chemicals Inc.'s motion for summary judgment on the negligence, strict liability and wrongful death claims, ruling against plaintiff Sandra Kivell.
• Kivell v. Union Carbide Corp. (In re Asbestos Litigation) (August 30, 2017). The Delaware Superior Court granted Union Carbide's motion for summary judgment on Sandra Kivell's negligence and strict liability claims, so Union Carbide won and the plaintiff lost.
• Kivell v. Murphy Oil USA (In re Asbestos Litigation) (August 30, 2017). The court granted Murphy Oil USA Inc.'s motion for summary judgment on the negligence and strict liability claims brought by Sandra Kivell, so the plaintiff lost.
• Walsh v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (October 27, 2017). The court granted summary judgment to Air & Liquid Systems Corp. (successor to Buffalo Pumps) against plaintiffs Phillip and Naomi Walsh, finding no evidence Mr. Walsh was exposed to asbestos parts the defendant was responsible for.
• Leathers v. Pneumo Abex (In re Asbestos Litigation) (November 8, 2017). The court denied Pneumo Abex LLC's motion for summary judgment, so plaintiff Raymond Leathers' claims against Abex go forward to trial.
• Walsh v. Aurora Pump Co. (In re Asbestos Litigation) (November 29, 2017). The court granted Aurora Pump Company's motion for summary judgment against Phillip and Naomi Walsh because they did not show that Mr. Walsh was exposed to asbestos from Aurora's products.
• Sykes v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (February 7, 2018). The Superior Court affirmed the Special Master's order excluding William Don Sykes's videotaped trial deposition at trial, a ruling for the defendants and against the plaintiff estate.
• Kivell v. Georgia Pacific Consumer Prods. LP (In re Asbestos Litigation) (March 26, 2018). The court granted Georgia Pacific's motion for judgment on the pleadings, holding that Sandra Kivell's wrongful death and survival claims were time barred under Louisiana's one-year limit.
• Richards v. Copes-Vulcan (In re Asbestos Litigation) (August 8, 2018). The court denied the Richards plaintiffs' motion for leave to supplement their expert's report and for reargument, leaving in place summary judgment for Copes-Vulcan, Fairbanks, Ford and Goodyear.
• Call v. Ford Motor Co. (In re Asbestos Litigation) (December 12, 2018). The court granted Ford Motor Company's motion for summary judgment against plaintiff Marilyn Kay Call, holding Indiana's "but for" causation standard applies and her expert's opinion did not meet it.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (January 31, 2019). The Delaware Superior Court denied Ford Motor Company's renewed motion for judgment as a matter of law, its alternative motion for a new trial, and its motion for a new trial or remittitur, leaving the plaintiff's jury verdict in place.
• Rowland v. Union Carbide Corp. (In re Asbestos Litigation) (April 24, 2019). The Delaware Superior Court granted Union Carbide's motion for summary judgment against Jane and Douglas Rowland because they could not show that the joint compound they used contained Union Carbide's asbestos.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (March 3, 2020). On remand from the Delaware Supreme Court, the Superior Court denied Ford Motor Company's motion for a new trial or remittitur, leaving the $40.625 million compensatory verdict for Paula Knecht in place.
• Petit v. Hennessy Indus. (In re Asbestos Litigation) (August 31, 2020). The Delaware Superior Court granted Hennessy Industries' motion for summary judgment against the Petit plaintiffs, because plaintiff did not show exposure to asbestos-containing brakes or to friable asbestos with the AMMCO machines.
• Pearsons v. Heidelberg USA (In re Asbestos Litigation) (December 23, 2020). The court denied Heidelberg USA's summary judgment motion on causation, statute of repose and product misuse, and granted it only on the willful and wanton conduct claim, which Mrs. Pearsons did not contest.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (April 11, 2023). The court denied Hennessy Industries' motion for reargument, so its earlier oral denial of summary judgment on the duty-to-warn claim stood and the plaintiff, Lisa Estrada, prevailed on this motion.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (April 25, 2023). The Superior Court denied defendant Hennessy Industries' request to certify an interlocutory appeal to the Delaware Supreme Court of the earlier denial of its summary judgment motion, so plaintiff Estrada prevailed on this request.
• Braxton v. J-M Mfg. Co. (In re Asbestos Litigation) (December 17, 2024). The court granted defendant J-M Manufacturing's motion for leave to designate responsible third parties, rejecting plaintiff Braxton's objections on pleading sufficiency, limitations timing and bankruptcy proofs of claim.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Amchem Products, Inc. v. Windsor (U.S. Supreme Court, 1997). The Supreme Court affirmed the Third Circuit's decision vacating the class certification and the antisuit injunction, so the objecting class members won and the settling asbestos defendants and class counsel lost.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

IN RE ASBESTOS LITIGATION, Limited to: Clineff, Ronald.

C.A. No. 08C-10-191 ASB.

July 8, 2011.

Superior Court of Delaware, New Castle County.

PEGGY L. ABLEMAN, Judge.

Plaintiffs Karen Keeley, Edward Clineff, and Ronald Clineff, Jr. are the surviving children of Ronald Clineff, Sr. ("Clineff"), who died on September 5, 1997. Clineff was employed as a laboratory technician at the Avisun/Amoco plant in New Castle, Delaware, from 1959 until early 1970. Clineff led a troubled life in his later years, and during a period of incarceration several months before his death, he began experiencing symptoms that he attributed to a chest cold. He passed away just two weeks after being released from prison, and his death was investigated by the Medical Examiner's Office. Two days after Clineff died, the coroner's office told Clineff's daughter Karen Keeley that he had died of cancer.[1] At that time, the coroner's office did not identify the type of cancer, and Clineff's children presumed that the cancer had been related to genetics or his history of cigarette-smoking.[2]

In December 1997, a death certificate was issued. Because the family needed the certificate for Social Security purposes, Keeley obtained it. The certificate listed the cause of Clineff's death as "metastatic malignant mesothelioma." Plaintiffs read the death certificate, including the diagnosis of mesothelioma. Edward Clineff testified that the siblings "had no idea what that [i.e., mesothelioma] meant," and they continued to assume that their father's cancer was caused by his smoking.[3] In late December 2006, Ronald Clineff attended a Christmas party at which an acquaintance who worked with his father at the Avisun facility mentioned that many former Avisun workers had developed symptoms related to asbestos exposure. Soon thereafter, Edward Clineff obtained the death certificate from Keeley and showed it to an attorney, who informed him that mesothelioma was an asbestos-related disease. Plaintiffs retained counsel and filed this suit on October 16, 2008, more than eleven years after Clineff's death, alleging that various defendants were responsible for exposing Clineff to asbestos and causing his mesothelioma. Plaintiffs assert claims of negligence, strict liability, and willful and wanton conduct. Defendants BP Amoco Chemical Company, BP Corporation North America Inc., and Kvaerner U.S. Inc. have moved for summary judgment, arguing that Plaintiffs' claims are barred by a two-year statute of limitations under 10 Del. C. § 8119.[4] The moving defendants argue that limitations period began to run, at the latest, in December 1997, when the plaintiffs reviewed Clineff's death certificate and learned that he had died of mesothelioma. In response, Plaintiffs argue that Clineff was never aware that he was suffering from an asbestos-related disease, and that they were "not put on notice of such a possibility until December 2006."[5]

The Court agrees with the moving defendants that the statute of limitations on Plaintiffs' claims began to run in December 1997, and therefore expired years before this suit was filed. Where a plaintiff is "blamelessly ignorant" of an "inherently unknowable" injury, such as a long-latency disease, the Court will apply the discovery rule.[6] Application of the rule tolls the running of the limitations period until the plaintiff "discovers, or in the exercise of reasonable diligence should have discovered, his injury."[7] Accordingly, the limitations period in an asbestos-exposure case "begins to run when the plaintiff is chargeable with knowledge that his condition is attributable to asbestos exposure."[8] For the discovery rule to apply, the plaintiff must be able to demonstrate that he acted reasonably and promptly "in seeking a diagnosis and in pursuing the cause of action."[9]

As an initial matter, this Court previously held in the context of a pre-discovery defense motion to dismiss based upon the doctrine of laches that "[P]laintiffs knew or should have known of their rights or claim [when they reviewed the death certificate]. . . . There's no evidence at all that they made any effort whatsoever to find out that they had a claim."[10] Although the Court declined to apply laches because of an absence of prejudice resulting from Plaintiffs' inaction, the determination that Plaintiffs were on notice of their claims after receiving the death certificate was part of the Court's

analysis of the elements of laches—and not, as Plaintiffs have suggested, mere commentary. Discovery did not result in any material changes to the facts underpinning the Court's conclusion, which therefore constitutes the law of the case.[11] Moreover, even if the Court had not previously ruled on this issue, the facts do not support a contrary result because Plaintiffs were on inquiry notice of their potential claim after reviewing Clineff's death certificate in December 1997. The Court is guided by the recent decision in Burrell v. Astrazeneca LP, which addressed the question of whether "the statute is tolled beyond the date on which the Plaintiffs learned of their diagnoses/injuries" when the plaintiffs are unaware of the cause of injury.[12] The Burrell plaintiffs were three women first diagnosed with diabetes between May 2002 and early February 2004. Each plaintiff had been prescribed Seroquel prior to her diabetes diagnosis. In 2007, the plaintiffs filed suit against Seroquel's manufacturer, alleging that their use of the drug caused them to develop diabetes.[13] The Burrell Court found that the plaintiffs' actions were untimely under § 8119. The Court noted that the Delaware Supreme Court's decision in Brown v. E.I. DuPont de Nemours & Co. determined that the limitations period on a latent injury begins to run when the plaintiff is "on notice of a potential tort claim."[14] The Burrell Court, following Brown, found that the inquiry into when a plaintiff can be deemed on notice of a potential claim for injuries allegedly arising from exposure to or ingestion of a toxic product or substance should focus upon when "someone from the scientific community [has] found and revealed publicly a link between the physical condition and the exposure,"[15] such that the plaintiff would have discovered the information in the exercise of reasonable diligence. Because scientific support for a possible connection between Seroquel and diabetes would have been revealed by a "reasonable investigation of publicly available sources" when the last-diagnosed plaintiff was informed that she had diabetes in February 2004, the plaintiffs were deemed to have been chargeable with knowledge of their potential claims at that time.[16]

While Burrell was not an asbestos-exposure case, it presents a persuasive rationale on facts quite similar to this case. In December 1997, Plaintiffs had actual knowledge that Clineff had died of mesothelioma. While Plaintiffs correctly point out that lawyer advertising for mesothelioma victims may not have been as widespread in the late 1990s as it is today, it was widely known and publicized by that time that mesothelioma was a signature disease related to asbestos exposure.[17] Plaintiffs concede that they did not know or understand what mesothelioma was at the time they first reviewed Clineff's death certificate, but they apparently made no efforts to learn anything about the diagnosis until December 2006. Their continued belief that Clineff's death resulted from smoking was the consequence of a choice to proceed on an unfounded assumption rather than make reasonable attempts to determine the cause of his mesothelioma.[18] To the extent Burrell is distinguishable, the existence of inquiry notice based upon publicly-available information is arguably clearer in this case, because mesothelioma is associated exclusively or almost exclusively with asbestos exposure, whereas the public is generally aware of multiple possible causes of diabetes. Even though the plaintiffs here were subjectively unaware until December 2006 that Clineff had worked with asbestos at Avisun, even basic inquiries into the cause-of-death determination they received in December 1997 would have prompted investigation into their father's past and his potential asbestos exposures. On these facts, the discovery rule tolled the start of the limitations period until only December 1997. Because Plaintiffs were on constructive notice of their claims in late 1997, the statute of limitations had expired almost nine years before this suit was instituted in 2008. Accordingly, the motions for summary judgment filed by Defendants BP Amoco Chemical Company, BP Corporation North America Inc., and Kvaerner U.S. Inc. are GRANTED on the basis of the limitations period set forth in § 8119.[19]

IT IS SO ORDERED.

[1] Karen Keeley Dep. Tr., Dec. 15, 2010, at 38:9-16.

[2] Edward Clineff Dep. Tr., Dec. 17, 2010, at 25:20-23.

[3] Id. at 26:11-15.

[4] 10 Del. C. § 8119 ("No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained[.]").

[5] Pls.' Consolidated Mem. in Opp'n to Defs.' Statute of Limitations Mot. for Summ. J. 1.

[6] McClements v. Kong, 820 A.2d 377, 380 (Del. Super. 2002).

[7] Burrell v. Astrazeneca LP, 2010 WL 3706584, at [*5] (Del. Super. Sept. 20, 2010) (quoting Ryan v. Gifford, 918 A.2d 341, 359 (Del. Ch. 2007)).

[8] In re Asbestos Litig. (Collins), 673 A.2d 159, 162 (Del. 1996).

[9] Id.

[10] Hr'g Tr. 19:13-16, Defs.' Mot. to Dismiss, Sept. 17, 2009.

[11] Hudak v. Procek, 806 A.2d 140, 154 (Del. 2002) ("When facts have remained constant throughout the subsequent course of the same litigation, the trial court's previous rulings applying legal principles to a constant set of facts generally establish the `law of the case.' . . . Although the doctrine is not inflexible, this Court has held that a prior legal ruling based on a constant set of facts should be reconsidered only if it is `clearly wrong, produces an injustice or should be revisited because of changed circumstances.'"). [12] 2010 WL 3706584, at [*5].

[13] Id. at [*1].

[14] Id. at [*5] (quoting Brown v. E.I. DuPont de Nemours & Co., 820 A.2d 362, 369 (Del. 2003)).

[15] Id. (quoting Brown, 820 A.2d at 368).

[16] Id. at [*6].

[17] Indeed, in June 1997, the United States Supreme Court issued its decision in Amchem Products, Inc. v. Windsor, which rather famously noted "an asbestos-litigation crisis" in existence at that time. 521 U.S. 591, 597 (1997).

[18] See Heizer v. Cincinnati, New Orleans & Pac. Ry. Co., 172 S.W.3d 796, 800 (Ky. Ct. App. 2004) ("Once he was diagnosed [with mesothelioma], James had an affirmative duty to exercise reasonable diligence to investigate the cause of his cancer."). [19] The Court need not and does not reach Kvaerner U.S. Inc.'s alternative arguments.

Sources

• The opinion on Google Scholar
• Delaware asbestos laws
• Delaware asbestos exposure sites