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In re Asbestos Litigation

United States District Court, D. Delaware

January 29, 2019

IN RE ASBESTOS LITIGATION ELIZABETH ALICE DOVE, as Personal Representative of the Estate of GUS DOVE Plaintiff,
v.
BOEING COMPANY, et al., Defendants.

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Presently before the court in this asbestos-related wrongful death action are the motions for summary judgment of Borg-Warner Morse TEC, LLC ("Borg-Warner") (D.I. 149), Ford Motor Company ("Ford") (D.I. 155), Union Carbide Corp. ("Union Carbide") (D.I. 147), and Pneumo Abex LLC ("Pneumo Abex") (D.I. 148) (collectively, "defendants"). Plaintiff, Elizabeth Alice Dove ("Ms. Dove" or "plaintiff) did not respond to these motions. As indicated in the chart infra and for the reasons that follow, the court recommends GRANTING Union Carbide's motion for summary judgment and motion to dismiss (D.I. 183) without prejudice and recommends GRANTING the motions of Borg-Warner, Ford, and Pneumo Abex with prejudice.[1]

defendant

Motion for summary judgment

Borg-Warner Morse TEC, LLC

GRANT

Ford Motor Company

GRANT

Union Carbide Corp.

GRANT WITHOUT PREJUDICE

Pneumo Abex LLC

GRANT

         II. BACKGROUND

         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.[2] (D.I. 1) Mr. Dove passed away on May 17, 2017. (D.I. 54) His daughters, Elizabeth Alice 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. (D.I. 129) Borg-Warner, Ford, Union Carbide, and Pneumo Abex filed motions for summary judgment, individually. (D.I. 149; D.I. 155; D.I. 147; D.I. 148) Plaintiff did not respond to these motions.[3] On January 23, 2019, Union Carbide filed a motion to dismiss pursuant to Fed.R.Civ.P. 41(b). (D.I. 183)

         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 defendants 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 1995. (D.I. 148, Ex. A) During his service, he worked as a hydraulic repairman, performing maintenance on aircraft brakes. (Id., Ex. B at 19:15-23; Ex. A) Mr. Dove testified that this maintenance produced dust containing asbestos, which he inhaled. (Id., Ex. B at 20:18-21:17) Mr. Dove also performed work on engines by opening up the cowling, taking out the pump, disconnecting hoses, and reinstalling these components. (Id. at 26:2-7) He stated this process was dusty, and that he inhaled the resulting dust. (Id. at 26:9-21) He believed the engine pumps contained asbestos. (Id. at 23:23-24:25)

         From 1954 to 1956, Mr. Dove performed "shade-tree" automotive work while he was stationed at Moody Air Force Base. (D.I. 157, Ex. 2 at 210:13-24) He performed automotive brake work on approximately ten vehicles during those two years. (Id. at 213:12-17) He also performed brake work and engine head gasket work on two of his father's used Ford vehicles. (Id. at 237:23-238:16, 239:10-24, 252:3-10)

         ii. Plaintiffs product identification evidence

         Mr. Dove is the sole product identification witness in this case and his deposition occurred on April 6, 2017. (D.I. 28)

         1. Borg-Warner Morse TEC, LLC

         Mr. Dove did not identify any asbestos-containing Borg-Warner products or exposure to any ...


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