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In re Asbestos Litigation

United States District Court, D. Delaware

December 12, 2017

IN RE ASBESTOS LITIGATION
v.
A. W. CHESTERTON COMPANY, et al., Defendants. GERALD L. HICKMAN, Plaintiff,

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Presently before the court in this asbestos-related personal injury action is defendant Ford Motor Company's ("Ford") motion for summary judgment. (D.I. 150)[1] For the reasons that follow, the court recommends GRANTING-IN-PART and DENYING-IN-PART Ford's motion for summary judgment.

         II. BACKGROUND

         A. Procedural History

         Plaintiff Gerald Hickman ("Plaintiff) filed this personal injury action against multiple defendants on March 15, 2016, in the Superior Court of Delaware, asserting claims regarding his alleged harmful exposure to asbestos. (D.I. 1, Ex* 1) On April 27, 2016, the case was removed to this court by Defendant Crane Co. pursuant to 28 U.S.C. §§ 1442(a)(1), the federal officer removal statue, [2] and 1446. (D.L 1) Plaintiff filed a First Amended Complaint on September 12> 2016. On June 20, 2017, Ford filed the pending motion for summary judgment. (D.I. 150)

         B. Facts

         Plaintiff alleges he developed asbestos is and asbestos related pleural disease as a result of exposure to asbestos-containing materials during his service in the Navy, [3] as well as from his civilian work with automobiles. (D.I. 49 at ¶¶ 4, 11, 15) Plaintiff contends he was injured due to exposure to Defendants' asbestos-containing products. (Id. at ¶ 13) Accordingly, Plaintiff asserts claims for negligence, willful and wanton conduct, strict liability, and conspiracy. (Id. at 11-27)

         Plaintiff was deposed on January 31 and February 1, 2017. (D.I. 98) Plaintiff did not produce any other fact or product identification witnesses for deposition.[4] In relation to Ford, Plaintiff alleges he experienced secondary exposure to asbestos from living in his family home from 1946-1958 with his father, who owned and operated Hickman's Service Station. (D.L 49 at ¶¶ 15, 16) During the summers and weekends from 1961 to 1963, Plaintiff worked for Hitchens Chevron. (D.L 162, Ex. B at 73:21-22; 187:2-6) He spent half his time pumping gas, and also performed oil changes or "lube jobs, " assisted customers in the convenience store, and assisted his uncle with brake work. (Id. at 187:11 -189:9) While in the Navy and stationed in Norfolk in 1970, Plaintiff pumped gas part time at Wayson's Exxon for "two or three" seasons. (Id. at 107:23-108:3) He did not personally perform any brake work, but was around when mechanics performed such jobs. (Id. at 107:18-22)

         Finally, Plaintiff testified about performing personal automotive work on his first wife's 1970 Ford Mustang, which was new when purchased. (D.I. 179, Ex. A at 155:11-20; 156:19-20; 225:11-21) He rebuilt the engine, changed out the exhaust, replaced the valve cover, and changed the brakes "three or four" times. (D.I. 162, Ex. B at 196:5-14)

         1. Plaintiff's Product Identification Evidence

         Plaintiff is the sole product identification witness in this case and his deposition occurred on January 31 and February 1, 2017. (D.I 149 at 5)

         Plaintiff alleges he experienced secondary exposure to asbestos from living in his family home from 1946-1958 with his father, who owned and operated Hickman's Service Station. (D.I. 49 at ¶¶ 15, 16) He testified that his father performed brake work on trucks and cars and would use an air hose, which created dust. (D.I. 179, Ex. A at 217:5-10; 222:2-22) Plaintiff identified Ford, as well as Mack, Chrysler, and Chevrolet, as among the brands of vehicles on which his father performed work. (Id. at 217:9-10) His father would return home in his uniform, where Plaintiff would "sometimes" hug his father, whose clothes "could have" remained dusty from vehicle servicing work. (Id. at 219:2-17) However, he did not know the maintenance history of the vehicles serviced at Hickman's Service Station. (D.I. 162, Ex. B at 186:8-15) He also did not know the manufacturer of any parts removed or installed on any vehicle, including Fords. (Id. at 186:16-187:1)

         While Plaintiff worked for Hitchens Chevron from 1961 to 1963, he assisted his uncle with brake work. (Id. at 187:11-189:9) He would clean up the dust after his uncle finished removing and replacing brakes. (Id. at 189:3-9) He has a general recollection of assisting his uncle perform brake work on Fords, Chevrolets, and Chryslers. (Id. at 189:10-16) He did not know the brand or manufacturer of any of the brakes that were removed or installed. (Id. at 190:17-23)

         While working at Wayson's Exxon in 1970, Plaintiff was present when mechanics performed brake work on vehicles. (Id. at 107:18-22) However, this work was "usually done during the daytime, " and Plaintiff only worked in the evenings. (Id. at 108:6-10) On some occasions the mechanics continued their work into the night, and when this happened, Plaintiff would help with the mechanic work or clean up afterwards. (Id. at 108:10-13) Plaintiff could not recall the specific brands or manufacturers of brakes that were removed or installed. (Id. at 108:14-21)

         Plaintiff also performed personal automotive work on his first wife's new 1970 Ford Mustang from the time it was purchased. (D.I. 179, Ex. A at 155:11-13; 156:19-22) He rebuilt the engine, changed out the exhaust, replaced the valve cover, and changed the brakes "three or four" times. (D.I. 162, Ex. B at 196:5-14) Plaintiff did not recall the brand name or manufacturer of any of the brakes or gaskets he removed from the vehicle, nor the manufacturer of the brakes or gaskets he installed. (Id. at 199:2-6; 201:7-12; 201:20-202:3) Plaintiff first testified that he did not know what work was performed on his wife's car prior to the time of their marriage. (Id. at 196:15-18) However, he later testified that his wife had not had the brakes changed before he first changed them in 1973. (D.I. 179, Ex. A at 197:9-18)

         III. ...


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