Kivell v. Georgia Pacific Consumer Prods. LP (In re Asbestos Litigation, 2018)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, March 26, 2018).

Sandra Kivell sued Georgia Pacific and other defendants, alleging that her husband Milton Kivell developed mesothelioma that caused his death. The opinion does not describe his work or how he was exposed to asbestos. Mr. Kivell died on September 5, 2015, and Mrs. Kivell filed her wrongful death and survival claims on September 30, 2016. Georgia Pacific argued that Louisiana law allows such claims for only one year after death. The Delaware Superior Court applied Louisiana's shorter limitation period under Delaware's borrowing statute, 10 Del. C. § 8121. Mrs. Kivell argued the claims related back to her original complaint. The court disagreed. It reasoned that the wrongful death and survival claims were supplemental pleadings, because they concerned events after the original complaint, and not amendments. Delaware procedural rules governed that question, even though she cited Louisiana procedure. The court held the claims time barred and granted Georgia Pacific's motion for judgment on the pleadings.

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: March 26, 2018
• Stage: Motion to dismiss
• State: Delaware

Outcome. 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.

What the court held. Under 10 Del. C. § 8121 the shorter Louisiana one-year limit applied, and wrongful death and survival claims filed after that period are supplemental rather than amended pleadings, so under Delaware procedural rules they do not relate back to the original complaint.

Issues decided: Choice of Law, Wrongful Death and Survival, Statute of Limitations, Trial Procedure and Discovery.

The people and their exposure

• Milton J. Kivell: mesothelioma; died

The defendants

• Georgia Pacific Consumer Products LP

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.
• Clineff v. BP Amoco Chemical Co. (In re Asbestos Litigation) (July 8, 2011). 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.
• 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.
• 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.

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.

SANDRA KIVELL, individually and as Personal Representative of the Estate of MILTON J. KIVELL,

deceased, Plaintiff,

v.

GEORGIA PACIFIC CONSUMER PRODUCTS LP et al., Defendants.

C.A. No. N15C-07-093 ASB.

March 26, 2018.

Superior Court of Delaware.

Upon Defendant Georgia Pacific's Motion for Summary Judgment.

GRANTED.

ORDER

CALVIN L. SCOTT, JR., J.

Plaintiff Sandra Kivell ("Plaintiff") cannot satisfy the summary judgment criteria.[1]

Plaintiff alleges that her husband, Milton Kivell ("Mr. Kivell") contracted mesothelioma which ultimately caused his death. Plaintiff filed a wrongful death action against numerous defendants including Georgia Pacific ("Defendant"). Defendant filed a Motion for Judgment on the Pleadings. Defendant contends that Plaintiff failed to timely assert her wrongful death and survival actions pursuant to Louisiana Law. Defendant contends that Louisiana's wrongful death statute expressly states that such claims are actionable for one year from the death of the decedent.[2] Similarly, Louisiana survival statute states that the right to recover is "for a period of one year from the death of the deceased."[3] Here, Mr. Kivell passed away on September 5, 2015, and Plaintiff filed the wrongful death and survival action on September 30, 2016. Defendant argues that the applicable Louisiana statute bars Plaintiff from asserting these claims. On the other hand, Plaintiff asserts that the wrongful death claim relates back to the original Complaint pursuant to Superior Court Civil Rule 15(c). Plaintiff claims that because Delaware procedural law applies to this case, the relation back of statutes of limitations are generally considered to be procedural rather than substantive.

First, Louisiana's statute of limitations regarding the wrongful death claim applies. 10 Del. C. § 8121 states: Where 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 or country where the cause of action arose, for bringing an action upon such cause of action. Where the cause of action originally accrued in favor of a person who at the time of such accrual was a resident of this State, the time limited by the law of this State shall apply. Additionally, Plaintiff does not seem to argue that Louisiana statute of limitations does not apply. Rather her argument is focused on whether the claims are amendments to the original pleading. Thus the Court must determine if the second amended complaint relates back to the date of the original complaint. As the Court wrote in a footnote in an earlier Order in this case, the Court is not persuaded that under Delaware law the wrongful death action relates back to the original pleading. This is because the wrongful death action and survivorship action are not an amendment to the original complaint, rather they are supplemental pleadings. Under Superior Court Civil Rule 15(c), an amendment of a pleading relates back to the original pleading when: (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or; (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.[4]

Under Delaware law, the difference "between an amended and supplemental complaint is drawn within Rules 15(a) and 15(d) and relates to the time frame in which the matters to be added to the complaint occurred."[5] However, "Rule 15(d), in contrast, specifies that a `supplemental' complaint refers to a complaint in which the plaintiff adds to the original complaint by `setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented'."[6] "When interpreting these two rules together, courts have implied that an amendment to a pleading, whether filed with or without leave of the court, should only relate to matters that have taken place prior to the date of the pleading to be amended."[7] The wrongful death and survivorship actions are not amendments to the original complaint, as they do not relate to matters that took place prior to the date of the pleading being amended. Plaintiff cites to a Louisiana case to support her proposition that the wrongful death and survivorship claims relate back under Louisiana Code of Civil Procedure. However, amending or supplementing proceedings are procedural rules, and Delaware procedure applies to that aspect of this case. For the aforementioned reasons, Plaintiffs wrongful death and survival claims are time barred. Defendant's motion for judgment on the pleadings is hereby GRANTED.

IT IS SO ORDERED.

[1] Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 2013 WL 6920864, at [*3] (Del. Super. Dec. 30, 2013); see Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979); Nutt v. A.C. & S., Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986).

[2] La. Civ. Code art. 2315.2.

[3] La. Civ. Code art. 2315.1.

[4] Super. Ct. Civ. R. 15(c).

[5] Pella Corp. v. American Cas. Co. of Reading, P.A., 2012 WL 1408855, at [*1] (Del. Super. Mar. 14, 2012). [6] Id.

[7] Id.

Sources

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