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Johansen v. Air & Liquid Systems Corp.

United States District Court, D. Delaware

January 25, 2019

WILLIAM J. JOHANSEN Plaintiff,
v.
AIR & LIQUID SYSTEMS CORPORATION et al Defendants.

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Presently before the court in this asbestos-related personal injury action is a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 filed by Ford Motor Company ("Ford" or "defendant"). (D.I. 145) For the following reasons, I recommend GRANTING defendant's motion for summary judgment.[1]

         II. BACKGROUND

         A. Procedural History

         On February 15, 2017, William J. Johansen ("Mr. Johansen" or "plaintiff) originally filed this personal injury action against multiple defendants in the Superior Court of Delaware, asserting claims arising from his alleged harmful exposure to asbestos. (D.I. 1, Ex. 1) On April 20, 2017, the case was removed to this court by defendant Crane Co. pursuant to 28 U.S.C. §§ 1442(a)(1), the federal officer removal statute, [2] and 1446. (D.I. 1) On August 1, 2018, Ford filed its pending motion for summary judgment. (D.I. 145)

         B. Facts

         Mr. Johansen alleges that he developed mesothelioma as a result of exposure to asbestos-containing materials during his service as a machinist mate in the United States Navy, his civilian work as a pipefitter, and his work on cars. (D.I. 1, Ex. 1 at ¶¶ 3-6) Mr. Johansen contends that he was injured due to exposure to asbestos-containing products that Ford manufactured, sold, distributed, licensed, or installed. (Id. at ¶¶ 4-14) Accordingly, plaintiff asserts claims for negligence, willful and wanton conduct, and strict product liability. (Id. at ¶¶ 15-31)

         Mr. Johansen was deposed on March 14 and 15, 2017. (D.I. 135) He was deposed again on July 11, 2018. (Id.) Plaintiff did not produce any other fact or product identification witnesses for deposition.

         Mr. Johansen purchased a used 1966 F-150 Ford pickup in the late 1960s and owned it for one year. (D.I. 172, Ex. A at 136:3-12; D.I. 146, Ex. 3 at 230:21-231:1, 231:14-22) He cannot recall how many miles the vehicle had at the time of purchase, and does not know its maintenance history. (D.I. 146, Ex. 3 at 231:8-10, 232:4-7) He performed one brake job on this vehicle. (D.I. 172, Ex. A at 136:13-16) He then purchased a 1963 F-250 Ford pickup in approximately 1970 that he owned for sixteen years. (Id. at 136:20-137:1; Ex. B at 234:23-235:3) He does not recall how many miles the vehicle had at the time of purchase, and does not know its maintenance history. (Id., Ex. B at 235:4-6, 236:25-237:3) He estimated that he performed four brake jobs on this vehicle. (Id., Ex. A at 137:2-13)

         Mr. Johansen described how, when changing brakes on his Ford cars, he would remove the wheel, hub, and springs. (Id. at 137:24-138:3) He would then slide off the old brake, clean the area, and sand the new brake before installing the replacement brake. (Id. at 138:4-13, 138:23-139:2) Mr. Johansen testified that he believes he was exposed to asbestos by sanding the replacement brakes and inhaling the resulting dust. (Id. at 138:9-22, 139:14-17) He also noted that he was able to identify whether he was removing and installing Ford brakes because the brakes were labelled with the name "Ford" or "FOMC." (Id., Ex. B at 232:12-21, 234:2-7, 237:10-23, 240:2-9) Mr. Johansen could not remember the packaging for the new brakes. (Id. at 233:16-19) He could not identify whether the old brakes he removed were installed as new brakes or remanufactured brakes. (Id. at 237:24-238:2)

         Mr. Johansen was diagnosed with mesothelioma in December 2016. (Id., Ex. A at 145:8-11)

         III. LEGAL STANDARD

         A. ...


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