United States District Court, D. Delaware
REPORT AND RECOMMENDATION
R. FALLON, UNITED STATES MAGISTRATE JUDGE
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 defendant Air &
Liquid Systems Corp. ("Air &
Liquid"). (D.I. 138) For the following reasons, I
recommend GRANTING defendant's motion for summary
March 15, 2016, plaintiff Gerald L. Hickman ("Mr.
Hickman") originally filed this personal injury action
against multiple defendants in the Superior Court of
Delaware, asserting claims arising from Mr. Hickman's
alleged harmful exposure to asbestos. (D.I. 1, Ex. 1) On
April 27, 2016, the case was removed to this court by
defendant CBS Corporation ("CBS") pursuant to 28
U.S.C. §§ 1442(a)(1), the federal officer removal
statute,  and 1446. (D.I. 1) Plaintiff filed his
first amended complaint (the "First Amended
Complaint") on September 12, 2016. (D.I. 49) Air &
Liquid filed its motion for summary judgment on June 20,
2017. (D.I. 138) Following Mr. Hickman's death, Daniel J.
Hickman was named as the administrator of the Estate of
Gerald L. Hickman and was substituted as plaintiff in this
matter. (D.I. 233) Plaintiff filed his second amended
complaint (the "Second Amended Complaint") on May
24, 2018. (Id.)
October 24, 2017, the court ordered supplemental summary
judgment briefing following the Third Circuit's decision
in In re: Asbestos Prods. Liab. Litig. (DeVries),
873 F.3d 232 (3d Cir. 2017). (D.I. 205) Supplemental briefing
was completed for the present motion on April 5, 2018. (D.I.
212; D.I. 215; D.I. 218) On May 29, 2018, Air &
Liquid's motion for summary judgment was denied without
prejudice to renew the motion after the conclusion of the
Supreme Court's review of Devries. (D.I. 234)
The Supreme Court issued its decision on March 19, 2019, and
the defendant requested renewal of Air & Liquid's
motion for summary judgment. See Air & Liquid Systems
Corp. v. Devries, 139 S.Ct. 986 (2019). (See
also D.I. 251)
Hickman alleges that he developed asbestosis and
asbestos-related pleural disease as a result of exposure to
asbestos-containing materials during his career as an auto
mechanic and as a fireman in the United States Navy. (D.I.
233 at ¶¶ 4, 11) Mr. Hickman contends that he was
injured due to exposure to asbestos-containing products that
defendant mixed, mined, manufactured, distributed, and sold.
(Id. at ¶ 12) In his pleadings, plaintiff
asserts claims for negligence, punitive damages, strict
liability, and conspiracy. (Id. at ¶¶
Hickman was deposed on January 31, 2017 and February 1, 2017.
(D.I. 98; D.I. 139 at 2) Plaintiff did not produce any other
fact or product identification witnesses for deposition.
Hickman joined the United States Navy in 1963. (D.I. 233 at
¶ 11; D.I. 175, Ex. A at 11:6-8, 51:13-15) He attended
basic training in San Diego, California for four months
before traveling to Hawaii in January 1964. (D.I. 175, Ex. A
at 51:13-17, 52:12-22, 75:13-18) Mr. Hickman spent
approximately eighteen months in Hawaii, where he was
assigned to the USS Nicholas, a destroyer.
(Id. at 52:12-22, 75:22-76:1) He entered as a
fireman apprentice and became a fireman on the USS
Nicholas. (Id. at 76:6-23) As a fireman, Mr. Hickman
worked in engine rooms, removing insulation from generators
and service pumps. (Id. at 87:8-10, 87:14-24) He
attended engineering school at the Great Lakes Naval Facility
for four months, where he received a military rating of
engineman. (Id. at 53:1 -8, 53:22-54:2)
1965, Mr. Hickman was stationed on the USS
Impervious, a minesweeper, in Long Beach, California.
(D.I. 233 at ¶ 11; D.I. 175, Ex. A at 54:3-6, 91:5-6) He
became a fireman second class on the USS Impervious
and engaged in a more supervisory role, but still assisted in
repairing diesel engines, pumps, valves, boilers, and air
conditioning equipment. (D.I. 175, Ex. A at 91:7-16, 95:9-16)
After two years aboard the USS Impervious, Mr.
Hickman was stationed on the USS Endurance, a
minesweeper, in Long Beach. (D.I. 233 at ¶ 11; D.I. 175,
Ex. A at 54:10-17, 94:15-18) He repaired equipment in the
engine room and was tasked with similar duties as he had on
the USS Impervious. (D.I. 175, Ex. A at 96:5-19)
1968, Mr. Hickman completed an instructor training program
for the Navy in Norfolk. (Id. at 55:5-13, 56:4-6)
After this two-month program, he was transferred to the naval
station in Annapolis, Maryland, where he performed
maintenance on training boats for midshipmen. (Id.
at 56:14-21, 57:4-18) In 1970, Mr. Hickman was stationed in
Vallejo, California, where he trained for Vietnam for three
months. (Id. at 57:16-58:9, 109:2-15) Mr. Hickman
entered as an engineman second class and became a engineman
first class in Vallejo. (Id. at 109:16-24) He was
deployed to Vietnam in early 1971, where he served for
approximately nine months. (Id. at 58:13-20) While
in Vietnam, Mr. Hickman patrolled, performed maintenance, and
navigated boats. (Mat 110:13-23)
returned from Vietnam in early 1972, he spent one month in
Delaware before he was stationed on the USS L.Y.
Spear, a submarine tender, in Norfolk. (Id. at
60:1-12, 113:4-16) He did not perform maintenance in the
engine room on the USS L. Y. Spear, but instead
performed "outside maintenance" on approximately
eight submarines. (Id. at 114:9-17, 114:23-115:1) In
performing "outside maintenance," he removed
service pumps from the submarines. (Id. at
116:4-117:1) While serving on the USS L.Y. Spear,
Mr. Hickman worked part-time for North Ship Co. as an outside
machinist for approximately six months in 1974. (Id.
at 118:15-24, 120:1-5) As an outside machinist, he removed
pumps and valves from Navy ships and private vessels.
(Id. at 120:1-14)
1975, Mr. Hickman was stationed on the Philadelphia Naval
Base. (Id. at 61:22-62:12) He served at the
Philadelphia Naval Base for approximately three years,
repairing valves and pumps on inactive ships. (Id.
at 62:10-12; 129:1-20) In December 1977, he was stationed on
the USS Lasalle, a command ship, which travelled
overseas to Bahrain. (Id. at 62:21-63:4, 138:2-11)
Aboard the USS Lasalle, he ...