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In re Asbestos Litigation

United States District Court, D. Delaware

August 15, 2018

IN RE ASBESTOS LITIGATION
v.
AEROJET ROCKETDYNE HOLDINGS, INC., et al., Defendants. JOHN DECASTRO and VICKI DECASTRO, his wife, Plaintiffs,

          REPORT AND RECOMMENDATION

          Sherry R. Fallon, United Stated-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. 118)[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

         On 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, [2] 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.[3] (D.I. 118; D.I. 126)

         B. Facts

         Plaintiffs 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 6-13)

         Mr. 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.[4] 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.[5] (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.

         1. Plaintiffs' Product Identification Evidence

         Mr. 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)[6]'[7] 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)

         Also, 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)

         From 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)

         Mr. 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)

         From 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)

         Mr. 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 217:16-18)

         From 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)

         From 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 282:9-17)

         Although 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).

         III. ...


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