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In re Asbestos Litigation

United States District Court, D. Delaware

January 25, 2019

BOEING COMPANY, et al., Defendants. ELIZABETH ALICE DOVE, as Personal Representative of the Estate of GUS DOVE Plaintiff,


          Sherry R. Fallon, United States Magistrate Judge


         Presently before the court in this asbestos-related wrongful death action is a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 filed by Honeywell International, Inc.[1] ("Honeywell"). (D.I. 151) For the following reasons, I recommend GRANTING Honeywell's motion for summary judgment.[2]


         A. Procedural History

         On December 10, 2016, plaintiff Gus Dove ("Mr. Dove"), originally filed this personal injury action against multiple defendants in the Superior Court of Delaware, asserting claims arising from Mr. Dove's alleged harmful exposure to asbestos. (D.I. 1, Ex. 1) On January 19, 2017, the case was removed to this court by defendant Lockheed Martin Corporation ("Lockheed Martin") pursuant to 28 U.S.C. § 1442(a), the federal officer removal statute.[3] (D.I. 1) Mr. Dove passed away on May 17, 2017. (D.I. 54) His daughters, Elizabeth Alice Dove ("Ms. Dove") and Roxane Audrey Huey ("Ms. Huey") were named as personal representatives of the Estate of Gus Dove and substituted as plaintiffs in this matter. (D.I. 62) Ms. Huey has since passed away and was removed as a personal representative and plaintiff on September 12, 2018. (D.I. 163 at 1; D.I. 129) On October 30, 2018, Honeywell filed its pending motion for summary judgment. (D.I. 151) Plaintiff filed her answering brief on November 13, 2018. (D.I. 163) The court heard oral argument on Honeywell's pending motion for summary judgment on January 14, 2019.

         B. Facts

         i. Mr. Dove's Alleged Exposure History

         Plaintiff alleges that Mr. Dove developed lung cancer and other asbestos-related diseases, causing "extensive mental anguish, pain and suffering, medical bills, physical impairment, permanent disability, loss of earning capacity, loss of enjoyment of life, and loss of life." (D.I. 129 at ¶¶ 17-18) Plaintiff contends that Mr. Dove was injured due to exposure to asbestos-containing products that Honeywell mixed, mined, manufactured, distributed, sold, removed, or installed. (Id. at ¶ 15) Accordingly, plaintiff asserts claims for negligence, willful and wanton conduct, strict liability, and conspiracy. (Id. at ¶¶ 20-96)

         Mr. Dove was deposed on April 6, 2017. (D.I. 28) Plaintiff did not produce any other fact or product identification witnesses for deposition.

         Mr. Dove served in the United States Air Force from 1951 to 1971. (D.I. 152, Ex. B at 261:10-14) He was enlisted in September 1951 and started his eight weeks of basic training at Sampson Air Force Base. (Id. at 261:15-25) In November 1951, he transferred to Tyndall Air Force Base and attended tech school to become a cook. (Id. at 262:19-25) Then, in March 1952, Mr. Dove was stationed at Elmendorf Air Force Base, where he was an airman second class. (Id. at 263:12-18) From April 1952 through April 1953, Mr. Dove was part of the early warning station in Alaska, where he was an airman second class and cook. (Id. at 271:2-12; 272:1-5)

         From April 1953 through April 1958, Mr. Dove served at Moody Air Force Base, where he entered as an airman second class, and finished as an airman first class. (Id. at 272:9-12; 272:16-19) Mr. Dove spent part of his time in "morale/welfare/recreation," where he had some photo hobby duties and automotive work duties. (Id. at 273:2-17) His automotive work was "shade-tree mechanic work." (Id. at 210:20-24) From 1954 to 1956, he had approximately ten customers for whom he performed automotive work. (Id. at 210:13-15; 212:12-15)

         After his five years of service at Moody Air Force Base, Mr. Dove was assigned to Chanute Air Force Base, where he trained to be an aircraft hydraulic repairman from April 1958 through July 1958. (Id. at 275:18-25; 276:2-8; 276:22-277:3) While stationed there, he worked on the B-52 for technical training. (Id. at 280:18-281:15) Mr. Dove continued his service in Lockbourne Air Force Base from July 1958 through June 1961. (Id. at 298:20-25; 327:6-12) When serving on Lockbourne Air Force Base, he changed brakes on many aircraft, including the KC-97, B-47, T-33, and DC-3. (Id. at 304:10-13; 315:22-316:4; 321:9-15; 325:4-12) Mr. Dove left Lockbourne Air Force Base in June 1961 and served on Forbes Air Force Base until May 1963. (Id. at 327:6-16; 331:7-23) On Forbes Air Force Base, he served as a staff sergeant, where approximately half of his time was spent performing supervisory administrative tasks. (Id. at 327:23-25; 328:22-25)

         Mr. Dove left Forbes Air Force Base in May 1963 for Karamursel, Turkey. (Id. at 331:7-332:2) He does not allege exposure to asbestos in Turkey. (Id. at 333:13-16) Following his return from Turkey in December 1964, he reported to Dover Air Force Base in January 1965. (Id. at 333:24-334:12) He served as a staff sergeant at Dover Air Force Base, performing both administrative duties and general maintenance on the C-141A, C-141B, C-124, C-133, and DC-3 aircraft, until August 1968. (Id. at 334:11-18; 335:1-336:17; 417:1-21) Following his service at Dover Air Force Base, Mr. Dove reported to Langley Air Force Base, where he entered as a staff sergeant and finished as a tech sergeant. (Id. at 347:21-348:8) The majority of his work entailed administrative duties, but he also performed some general maintenance on the C-130E and P-51. (Id. at 349:16-350:1; 353:14-23; 354:4-14; 379:1-15) He remained at Langley Air Force Base until he retired from the United States Air Force with an honorable discharge in September 1971. (Id. at 347:21-348:4)

         Following his retirement from the United States Air Force, Mr. Dove was employed in the civil service on Dover Air Force Base, where he worked from July 1972 through 1976. (Id. at 382:16-19, 385:8-22) In 1979, he started working on the flight line, where he performed both administrative duties and aircraft maintenance until his retirement in January 1995. (Id. at 387:18-388:3; 388:11-390:5)

         ii. Plaintiffs Product Identification Testimony

         For the purposes of the pending motion, the plaintiffs alleged asbestos exposure through automotive work is in issue. Mr. Dove testified that he performed "shade tree" automotive work, primarily brake work, from 1954 to 1956 when he was stationed at Moody Air Force Base. (D.I. 152, Ex. A at 28:3-25; Ex. B at 210:13-24) He performed automotive work in a shop that had one opening, a door, which remained open while he worked. (Id., Ex. B at 226:11-21) Mr. Dove stated that he used Bendix brakes approximately ninety percent of the time, and Ford brakes approximately ten percent of the time. (Id., Ex. A at 29:22-30:5) The Bendix brakes he used for automotive work were drum brakes. (Id., Ex. B at 230:11-13)

         At his video deposition, Mr. Dove testified that he performed approximately five brake jobs per week for two years. (D.I. 152, Ex. A at 29:1-11) He also stated that he knew he was working with Bendix brakes because the name was stamped in the lining and on the box. (D.I. 163, Ex. A at 33:11-15)

         Mr. Dove's discovery deposition followed his video deposition. In his discovery deposition, Mr. Dove stated he had at least ten customers that he assisted with their automotive work from 1954 to 1956. (D.I. 152, Ex. B at 212:12-15) In addition, he stated he could not recall the brand name, trade name, or manufacturer name of the brakes he installed in vehicles. (Id. at 219:1-4) He could not describe the box that contained the brakes, except that "part of the box was yellow." (Id. at 219:17-24) When asked if he could remember any markings on the box, Mr. Dove testified that it said "Ford" across the box and had "Ford" stamped in the lining. (Id. at 219:25-220:11) He stated that each of the ten vehicles he worked on during this timeframe were Fords. (Id. at 220:18-21) He installed Bendix brakes on Dodge and Chevrolet vehicles no more than ten times. (Id. at 227:3-18; 230:6-10) Mr. Dove testified that the ten times he installed Bendix brakes from 1954-1956 were the only times he installed Bendix brakes in his lifetime. (Id. at 235:7-12) He recounted that the cleanup of the old drum from the old brake took him approximately eight hours for all four tires, or approximately two hours per tire. (Id. at 233:6-15) Before installing the new brake, he used sandpaper or a wire brush for about fifteen minutes to smooth down each brake. (Id. at 234:6-12; 234:22-235:6) Mr. Dove noted that it took him approximately fifteen minutes to install a new brake on each wheel. (Id. at 233:16-22)


         A. Summary Judgment

         "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those that could affect the outcome of the proceeding, and "a dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

         The moving party bears the initial burden of proving the absence of a genuinely disputed material fact. See Celotex, 477 U.S. at 321. The burden then shifts to the non-movant to demonstrate the existence of a genuine issue for trial, and the court must view the evidence in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,475 U.S. 574, 587 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989); Scott v. Harris, 550 U.S. 372, 380 (2007). An assertion of whether or not a fact is genuinely disputed must be supported either by citing to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). To defeat a motion for summary judgment, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment;" rather, there must be enough evidence to enable a jury to reasonably find for the non-moving party on the issue. See Anderson, 477 U.S. at 247-49. "If the evidence is merely ...

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