United States District Court, D. Delaware
REPORT AND RECOMMENDATION
R. Fallon, United States Magistrate Judge
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,
("Honeywell"). (D.I. 151) For the following
reasons, I recommend GRANTING Honeywell's motion for
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. (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.
Mr. Dove's Alleged Exposure History
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)
Dove was deposed on April 6, 2017. (D.I. 28) Plaintiff did
not produce any other fact or product identification
witnesses for deposition.
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;
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;
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)
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)
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)
Plaintiffs Product Identification Testimony
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)
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)
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)
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
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 ...