United States District Court, D. Delaware
REPORT AND RECOMMENDATION
R. Fallon, United Stated-Magistrate Judge.
before the court in this asbestos-related personal injury
action is defendant Ford Motor Company's
("Ford") motion for summary judgment. (D.I.
For the reasons that follow, the court recommends
GRANTING-IN-PART and DENYING-IN-PART Ford's motion for
September 1, 2016, plaintiffs John DeCastro ("Mr.
DeCastro") and Vicki DeCastro ("Mrs.
DeCastro"), his wife (collectively,
"Plaintiffs"), originally filed this personal
injury action against multiple defendants in the Superior
Court of Delaware, asserting claims arising from Mr.
DeCastro's alleged harmful exposure to asbestos. (D.I. 1,
Ex. 1) On October 14, 2016, the case was removed to this
court by defendant United Technologies Corporation pursuant
to 28 U.S.C. §§ 1442(a)(1), the federal officer
removal statute,  and 1446. (D.I. 1) Plaintiffs filed a
first amended complaint on May 24, 2017. (D.I. 72) On October
30, 2017, Ford filed the pending motion for summary judgment,
which Plaintiffs oppose. (D.I. 118; D.I. 126)
allege that Mr. DeCastro developed lung cancer as a result of
exposure to asbestos-containing materials during his service
in the United States Air Force, civilian employment with
Pacific Bell Telephone and United Airlines, and personal
automotive and aircraft maintenance work. (D.I. 72 at
¶¶ 3-6, 14) Plaintiffs contend that Mr. DeCastro
was injured due to exposure to asbestos-containing products
that defendants manufactured, sold, distributed, licensed, or
installed. (Id. at ¶ 9) Accordingly, Plaintiffs
assert claims for negligence, willful and wanton conduct,
strict liability, and loss of consortium. (Id. at
DeCastro was deposed on February 21 and 22, 2017. (D.I. 37)
Plaintiffs did not produce any other fact or product
identification witnesses for deposition. Mr. DeCastro
served in the United States Air Force for forty years,
working as an aircraft mechanic, aircraft foreman, and
aircraft superintendent from 1950 to 1990. (D.I. 126, Ex. A
at 14:17-24) Throughout this time period, Mr. DeCastro
performed automotive work on his personal vehicles, as well
as vehicles owned by friends and relatives. In relation to
Ford, Mr. DeCastro alleges that he was exposed to asbestos
from the repair work he performed on Ford manufactured
vehicles and parts.
Plaintiffs' Product Identification Evidence
DeCastro testified about repairs he performed on at least
eight different Ford vehicles. In 1948, Mr. DeCastro owned a
used 1935 Ford coupe. (D.I. 121, Ex. E at 197:14-18; Vol. II
at 245:9-25)' Mr. DeCastro performed work on the
carburetor and clutch. (Id., Vol. II at 246:4-11) He
did not know the brand of the carburetor gasket he removed,
and did not know whether the gasket was an original or an
after-market replacement. (Id., Vol. II at 246:8-23)
from 1948 to 1949, Mr. DeCastro owned a used 1938 Ford coupe.
(Id. at 198:19-199:3) Mr. DeCastro replaced the
engine, and did not know the manufacturer of any of the parts
he removed, but stated that they were "probably all Ford
parts." (Id. at 199:4-9)
roughly 1952 to 1953, Mr. DeCastro owned a used 1936 Ford
two-door. (Id. at 189:12-21; 201:13-22) The only
work he recalled performing on this vehicle was replacing the
carburetor. (Id. at 201:13-20) Mr. DeCastro did not
know the manufacturer of the parts he removed or installed.
(Id. at 201:23-202: 5)
DeCastro owned a used 1936 Ford three-window from 1952 to
1955. (Id. at 202:6-10; 202:17-20) Mr. DeCastro
changed the transmission "about three times."
(Id.) He also replaced the brakes "from a
mechanical brake linkage to hydraulic," and installed
"new racing intake manifolds and heads."
(Id. at 202:8-15) Mr. DeCastro did not know the
maintenance history of this vehicle. (Id. at
202:21-22) He did not know the manufacturer of the parts he
removed or installed when performing the transmission work.
(Id. at 202:23-203:6) As to the brakes, Mr. DeCastro
did not know what brand of brakes he removed from the
vehicle. (Id. at 203:7-17) He testified that the
replacement brakes he used were 1939 Ford hydraulic brakes,
which he identified by a Ford emblem on the plates.
(Id. at 203:18-204:16) To the extent Mr. DeCastro
knew the brand of gaskets he installed on this vehicle, he
identified non-Ford gaskets. (Id. at 248:21-249:12)
roughly 1952 to 1953, Mr. DeCastro owned a used dark-green
1936 Ford coupe. (Id. at 229:16-230:15; 232:9-11) He
did not know the vehicle's maintenance history.
(Id. at 230:16-18) Mr. DeCastro generally performed
"engine work" on this vehicle, and replaced the
transmission "a couple of times." (Id. at
230:4-8) Mr. DeCastro identified Ford as the brand of intake
manifolds, exhaust manifolds, and heads he installed on this
vehicle. (Id. at 231:8-232:23)
DeCastro owned a 1955 Ford Crown Victoria from 1955 to 1959,
which was new when purchased. (Id. at 215:14-216:4)
During this time, he personally performed carburetor repairs
"about five times." (Id. at 216:5-217:11)
Mr. DeCastro did not know the manufacturer of the carburetors
that he installed on this Ford vehicle. (Id. at
roughly 1959 to 1962, Mr. DeCastro owned a used black 1936
Ford three-window. (Id. at 234:10-235:3) He did not
know the maintenance history of the vehicle. (Id.,
Vol. II at 311:16-20) Mr. DeCastro performed brake, clutch,
and gasket work on the vehicle. (Id. at 234:16-20)
He removed and installed Chevrolet products when he performed
the transmission work on this vehicle. (Id. at
235:4-10) Mr. DeCastro did not know the manufacturer of the
brakes or clutches he removed or installed, and any gasket
work he performed on the vehicle was done with Chevrolet
gaskets because the car contained a Chevrolet engine.
(Id., Vol. II at 310: 13-311:15; 311:21-24)
about 1979 to 1982, Mr. DeCastro owned a used 1936 Ford
"three-window chopped full custom." (Id.,
Vol. II at 280:15-24) He was not aware of the vehicle's
maintenance history, except for the custom body work that had
been performed. (Id., Vol. II at 280:25-281:12) This
vehicle contained a 1980 Chevrolet engine, which Mr. DeCastro
removed and replaced with another Chevrolet engine.
(Id., Vol. II at 281:16-25) Mr. DeCastro also
installed a stereo system in the vehicle, but did not perform
any other mechanical repairs. (Id., Vol. II at
Mr. DeCastro initially identified installing Ford brakes only
on his used 1936 Ford three-window that he owned from 1952 to
1955 (id. at 202:6-10; 202:17-20; 203:7-204:16), he
later stated, when asked by his attorney, that he installed
Ford brakes on the "the '35 five-window, the '36
chopped vehicle, and the '36 three-window that was in the
Roadster Show" (id, Vol. II at 320:9-22).