Julia Mary Clark (“Plaintiff”) files this Response in Opposition to the Motion for Summary Judgment filed by Defendant Westinghouse Electric Corporation (“Defendant”) and would respectfully show the Court as follows:

Table Of Contents


Plaintiff Julia Mary Clark is the surviving spouse of George Raymond Clark, who died from mesothelioma, a rare form of cancer caused by asbestos exposure. Mr. Clark was exposed to asbestos while operating Defendant Westinghouse Electric Corporation’s turbines during his employment at the Tecumseh Energy Center Power Plant from 1962-1991. Plaintiffs allege that Defendant negligently and willfully exposed Mr. Clark to serious risk of severe injury, that Defendant’s asbestos-containing products were inherently dangerous, and that Defendant is subject to strict liability based on its breach of implied warranty of merchantability. As Mr. Clark’s surviving spouse, Plaintiff is entitled to recover wrongful death damages, including loss of consortium damages.

Defendant Westinghouse Electric Corporation has moved for summary judgment, contending that Delaware’s builders’ statute of repose applies to this case pursuant to the Delaware borrowing statute. This argument is flawed, as the Delaware borrowing statute does not encompass statutes of repose. Statutes of repose are substantive, not procedural, in nature. Therefore, Delaware’s choice of law rules dictate that the repose law of Kansas, where Mr. Clark was exposed to Defendant’s asbestos-containing products, governs this action. Under Kansas law, there is no period of repose for asbestos-related latent disease cases. Plaintiff’s claims are not barred by any statute of repose.


Summary Judgment Standard

The standard for granting summary judgment is high. Williams v. Geier, 671 A.2d 1368, 1388 (Del. 1996). The moving party must demonstrate both an absence of material fact and entitlement to judgment as a matter of law. Blue Hen Lines, Inc., v. Turbitt, 787 A.2d 74, 77 (Del. 2001). Defendant bears the burden “to demonstrate to a reasonable certitude that there is no issue of fact which, if resolved in favor of the plaintiff, would hold the defendant liable.” Davis v. Univ. of Del., 240 A.2d 583, 584 (Del. 1968).Moreover, the moving party has “the ‘difficult burden’ of establishing entitlement to judgment as a matter of law.” Estate of Michael Turner, C.A. No. 20108, 2004 Del. Ch. 3, *12 (Del. Ch. January 9, 2004).

In considering the motion, “[a]ll facts and reasonable inferences must be considered in a light most favorable to the non-moving party.” Nutt v. A.C. & S. Co., Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986). The court “will accept as established all undisputed factual assertions, made by either party, and accept the non-movant’s version of any disputed facts.” Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 -100 (Del. 1992). Summary judgment may not be granted when there is a material fact in dispute or it is desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. Cropper v. State Farm Mutual Auto. Ins. Co., 671 A.2d 423, 425 (Del. Super. 1995).

Defendant has not met its summary judgment burden in this case.

  1. The Delaware Borrowing Statute Does Not Apply to Statutes of Repose.

The Delaware borrowing statute does not include Delaware’s builders’ statute of repose[1]. The Delaware borrowing statute provides in relevant part:

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 . . . .

10 Del. Code § 8121. The “standard scenario” meant to be addressed by the statute is a case where the claim arises under the law of a jurisdiction other than Delaware, and “is barred by that jurisdiction’s statute of limitations but would not be time-barred in Delaware, which has a longer statute of limitations.” Saudi Basic Indus. Corp. v. Mobil Yanbu Petrochemical Co., 866 A.2d 1, 16-17 (Del. 2005). The borrowing statute therefore provides for the application of the procedural time limitation rules of the state where the cause of action arose if shorter than Delaware’s applicable statute of limitations.

Borrowing statutes do not generally include statutes of repose, because the latter are considered substantive in nature. Most courts have determined that statutes of repose are substantive law for choice of law purposes. See Boudreau v. Baughman, 368 S.E.2d 849, 857 (N.C. 1988) (observing that the “overwhelming weight of authority in other jurisdictions accepts the characterization of statutes of repose as substantive provisions in a choice of law context” and collecting cases); Rice v. Dow Chem. Co., 875 P.2d 1213, 1217 (Wash. 1994) (noting that the “general authority is that statutes of repose are to be treated not as statutes of limitation, but as part of the body of a state’s substantive law in making choice-of-law determinations”).

Like most states, Delaware considers statutes of repose to be substantive law. See Cheswold Volunteer Fire Co. v. Lamberston Constr. Co., 489 A.2d 413, 421 (Del. 1985). As the Delaware Supreme Court has explained, statutes of repose and statutes of limitations are not equivalent concepts:

While the running of a statute of limitations will nullify a party’s remedy, the running of a statute of repose will extinguish both the remedy and the right. The statute of limitations is therefore a procedural mechanism, which may be waived. On the other hand, the statute of repose is a substantive provision which may not be waived because the time limit expressly qualifies the right which the statute creates.

Id. In fact, the Delaware builders’ statute of repose, 10 Delaware Code § 8127, has been recognized as a substantive law because it eliminates a cause of action six years after substantial completion of construction, even if the plaintiff’s injury is not discovered until after the six-year period has run. See id.; Cheswold Volunteer Fire Co. v. Lamberston Constr. Co., 489 A.2d 413, 420 (Del. 1984).

This distinction between statutes of limitation as procedural and statutes of repose as substantive has led other courts to conclude that borrowing statutes do not encompass statutes of repose. For example, in Rice v. Dow Chemical Company, 875 P.2d 1213, 1214 (Wash. 1994), the Washington Supreme Court considered the claim of a man who had been exposed to herbicides while working in Oregon from 1959 through 1963. The plaintiff thereafter moved to Washington state, where he filed suit in 1988 after he was diagnosed with cancer as a result of his prior herbicide exposure. See id. The laws of Washington and Oregon each provided relevant statutes of repose, but those laws were in conflict. See id. at 1217. In deciding that Washington’s borrowing statute could not be applied to resolve the conflict, the court held that “statutes of repose do not fall under the statute of limitations borrowing statute [], but instead may raise a conflict of substantive law.” Id. Under the “most significant relationship” test for choice of law analysis, it was determined that Oregon had a greater interest in having its repose law applied because the herbicides in question were sent to Oregon and the plaintiff was exposed to those chemicals while working in Oregon. See id. at 1217, 1219. See also Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1223 (10th Cir. 1991) (holding that “the Indiana statute of repose should be applied as a matter of substantive law of the place of wrong and injury, instead of being incorporated as the proper statute of limitations to follow pursuant to the Kansas borrowing statute”).

Although Defendant relies on May v. Remington Arms Company, Inc., C.A. NO. 04C-08-270 FSS, 2005 Del. Super. LEXIS 303 (Del. Super. August 31, 2005), that case does not support Defendant’s contention that the Delaware borrowing statute should apply in this case. In May, a North Carolina resident brought suit against a Delaware corporation after he was injured in North Carolina by a rifle manufactured by the defendant. See id. at *1. The plaintiff contended that his claim had been timely filed pursuant to Delaware’s two-year statute of limitations running from the date of injury, but the defendant took the position that the plaintiff’s claim was foreclosed under North Carolina’s six-year statute of repose because it had been more than six years since the rifle was manufactured. See id. at *1-3. The court applied North Carolina’s statute of repose, ostensibly pursuant to Delaware’s borrowing statute. See id. at *3-4. However, the court’s reasoning was entirely based on a substantive choice of law analysis, under which it was clear that the claim had much closer ties to North Carolina than to Delaware. The court reasoned as follows:

Delaware’s borrowing statute applies. Plaintiff’s cause of action arose either where the defective rifle was manufactured – New York, where Plaintiff bought it – North Carolina, or where he was injured – again, North Carolina. Plaintiff’s cause of action did not arise here. Delaware’s only tie to what happened is the fact that Defendants are incorporated here. [Under North Carolina law], Plaintiff not only is barred from filing suit, he has no claim in North Carolina, which is the place where he lives, where he bought the defective rifle and where he was hurt.

Id. at *3-4. The May decision was compelled by the fact that in North Carolina, where the cause of action arose, the plaintiff was barred from filing suit. Id. at *4. Even though the court found that the borrowing statute applied and was outcome determinative, the court decided to also apply the substantive law “most significant relationship” test, which also called for the application of North Carolina’s statute of repose. See id. at *7.

Given that the Delaware Supreme Court considers statutes of repose to be substantive law, Delaware’s borrowing statute should not encompass statutes of repose when determining applicable time limits. The Delaware builders’ statute of repose is a substantive law not applicable to Plaintiff’s asbestos exposure claims. As explained more fully below, the substantive law of Kansas applies in this case.

  1. Kansas Law Applies and Does Not Bar Plaintiff’s Claims.

Unlike Delaware, Kansas does not have a special statute of repose for claims related to improvements to real property. Kansas is only one of five states without a builders’ statute of repose. See Gerald W. Heller, The District of Columbia’s Architects’ and Buildings’ Statute of Repose: Its Application and Need for Amendment, 34 Cath. U. L. Rev. 919, 920 n.4 (1985). Moreover, Kansas law does not provide any period of repose for latent disease claims arising from exposure to asbestos. See Harding v. K.C. Wall Prod., Inc., 831 P.2d 958, 963 (Kan. 1992).[2]

Delaware has adopted the Restatement (Second) of Conflicts’s “most significant relationship test” for resolving conflicts of substantive law in tort matters. See Travelers Indemnity Co. v. Lake, 594 A.2d 38, 47 (Del. 1991). Under this rule, the court will apply the law of the state with the most significant relationship to the parties and the events giving rise to the lawsuit. See id. The relevant state contacts to be considered are “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship if any, between the parties is centered.” Id., citing Restatement (Second) of Conflicts § 145(1) (1971). Other factors to be considered are the relevant public policies of each state. See id.

Kansas clearly has the most significant relationship to the parties and to the claims raised in this case. As Defendants concede, Mr. Clark was “a resident of Kansas since 1962” (Mot. at 1), and “[a]ll of plaintiff’s alleged exposure to asbestos occurred in Kansas” (Mot. at 2). Defendant’s turbines were installed and became operational in the Energy Center Power Plant in Tecumseh, Kansas, in 1949, 1957, and 1962. (Aff. of J. David Conrad ¶ 4, attached to Defendant’s Motion as Exhibit B.) Mr. Clark was exposed to the asbestos in the turbines manufactured by Defendant during his employment at the Tecumseh power plant from 1962-1991. (Dep. of Harry Butler, April 4, 2006, 15:12-16, 16:22-17:7, 28:21-29:15, 32:16-33:13, 34:1-18, 59:4-15, 69:6-10, attached hereto as Exhibit 1.) In addition, Mr. Clark learned he had an asbestos-related injury, mesothelioma, while living in Topeka, Kansas. (Dep. of Julia Clark, April 4, 2006, 11:10-20, 13:15–14:15, 27:1–28:13, 31:8-12, attached hereto as Exhibit 2.) As in the May case, the only connection Delaware has to this case is that Defendant is a Delaware corporation.

Not only does this case have very close ties to Kansas, but public policy considerations also weigh in favor of applying Kansas law. This case is very similar to the substantive conflict of law considered in Hansen v. Sears, Roebuck & Company, 574 F. Supp. 641 (E.D. Mo. 1983), where the court decided to apply the law of a state that did not have a statute of repose over the law of a state that did. In the Hansen case, the plaintiff was a Missouri resident, injured in Missouri, while working at a place of business located in Missouri. See id. at 642. Missouri does not have a statute of repose. See id. at 643. The product that injured the plaintiff was manufactured in Indiana, which provides a period of repose for product manufacturers. See id. at 642-43. In deciding that Missouri law should apply, the court not only considered the close relationship the case had to Missouri, but was also persuaded by Missouri’s strong public policy in favor of encouraging the safety of products sold and used in Missouri. See id. at 644-45. The court found that Missouri law favored product safety more than limiting the potential liability of manufacturers, and that “[t]he interest of Missouri in determining for itself the scope of liability of manufacturers of products which cause injury in Missouri to Missouri residents, is stronger than the interest of Indiana in having its statute of repose applied to products manufactured in Indiana.” Id.

Similarly, Kansas has indicated a strong policy in favor of providing a remedy for persons injured by defective products in its state. The state legislature, and the Kansas Supreme Court, have both made clear that manufacturers of products that cause latent diseases will not be protected by any period of repose. See K.S.A. § 60-3303(b)(2)(D) and (d); Harding, 831 P.2d at 963. In addition, Kansas law specifically identifies asbestos as a “harmful material,” and provides that persons developing a latent disease as a result of asbestos exposure are not subject to any statute of limitations until the disease has been discovered. See K.S.A. § 60-3303(d)(1) and (2). As in the Hansen case, the interest of Kansas in determining the scope of liability of manufacturers of products that cause injury in Kansas to Kansas residents is much stronger than any interest Delaware might have in applying its statute of repose to a defendant incorporated in Delaware.

Choice of law analysis clearly favors the application of Kansas law to Plaintiff’s asbestos exposure claims. Pursuant to Kansas law, Defendant is not protected by any statute of repose for latent disease injuries suffered by Kansas residents from asbestos in the turbines it delivered, installed and maintained in Kansas. Plaintiff’s claims are therefore not time-barred.


The Delaware builders’ statute of repose does not apply to bar Plaintiff’s asbestos exposure claims. It is a substantive law, not encompassed by Delaware’s borrowing statute. Under substantive choice of law principles, Kansas law applies and does not impose any time limitation barring Plaintiff’s claims in this case.

  1. The Delaware builders’ statute of repose provides a six-year time limitation for an action for personal injuries arising “from any alleged deficiency in the construction or manner of construction of an improvement to real property and/or in the designing, planning, supervision and/or observation of any such construction or manner of construction.” 10 Del. Code § 8127(b).
  2. Defendant incorrectly claims that Kansas Statute § 60-513 provides the relevant statute of repose. (Mot. at 4 n.3.) Kansas Statute § 60-513 generally provides for a ten-year statute of repose in tort cases, running from the date of the act giving rise to the cause of action. However, that statute does not apply to product liability claims, such as those presented in this case, which are governed by the Kansas Product Liability Act, Kansas Statute § 60-3303. See Gorman v. Best W. Int’l, Inc., 941 F. Supp. 1027, 1030 (D. Kan. 1996); Speer v. Wheelabrator Corp., 826 F. Supp. 1264, 1272 (D. Kan. 1993); Kerns v. G.A.C., Inc., 875 P.2d 949, 956 (Kan. 1994); Harding v. K.C. Wall Prod., Inc., 831 P.2d 958, 963 (Kan. 1992); Baumann v. Excel Indus., Inc., 845 P.2d 65, 68, 70-71 (Kan. Ct. App. 1993). The Kansas Product Liability Act provides a useful safe life defense and includes a statute of repose in the form of a rebuttable presumption that the useful safe life of a product expires after 10 years. K.S.A. § 60-3303(a) & (b). However, the statute exempts latent disease cases from the 10-year period of repose in section 60-3303(b)(2)(D): The ten-year period of repose established in paragraph (1) of this subsection shall not apply if the harm was caused by prolonged exposure to a defective product, or if the injury-causing aspect of the product that existed at the time of delivery was not discoverable by a reasonably prudent person until more than 10 years after the time of delivery, or if the harm caused within 10 years after the time of delivery, did not manifest itself until after that time. Thus, Plaintiff’s asbestos-related latent disease case is not subject to any period of repose under Kansas law. See Harding,831 P.2d at 963.