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Rhodes v. Diamond State Port Corp., Del. Supr., C.A. No. 09A-04-005, Steele, C.J., Jacobs, J., Ridgely, J. (July 29, 2010), 2010 WL 2977331

This was an appeal from a decision of the Superior Court affirming denial by the Industrial Accident Board of William Rhodes' Petition to Determine Compensation Due alleging lung cancer as a result of asbestos exposure while working for Diamond State Port Corp. (""DSPC"). Rhodes argued that the Superior Court erred in affirming the IAB's decision because the Board abused its discretion by ignoring or misconstruing relevant and uncontroverted evidence that there was friable asbestos at Mr. Rhodes' worksite. Further, Mr. Rhodes argued that the Board misapplied or failed to apply the "last injurious exposure" rule. The Supreme Court found no merit to either argument and affirmed.

Specifically, the Supreme Court held that there was "the minimum quantum of evidence required" for the Board to hold that Mr. Rhodes failed to meet his burden of proving asbestos exposure while working for DSPC. Further, the Board articulated a reasonable basis for its acceptance of the testimony of Dr. Albert Rizzo that Mr. Rhodes' lung disease was caused by cigarette smoking alone. Finally, the Supreme Court agreed that the "last injurious exposure rule" did not apply because Rhodes failed to prove any injurious exposure while working for DSPC.

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