DeCastro v. Beech Aircraft Corporation et al

Filing 134

REPORT AND RECOMMENDATIONS- re #112 MOTION for Summary Judgment, #122 MOTION for Partial Summary, #120 MOTION for Summary Judgment, #114 MOTION for Summary Judgment, #110 MOTION for Summary Judgment, #108 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 2/8/2018. Signed by Judge Sherry R. Fallon on 1/25/2018. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ASBESTOS LITIGATION
JOHN DECASTRO and VICKI
DECASTRO, his wife,
Plaintiffs,
V.

AEROJET ROCKETDYNE
HOLDINGS, INC. et al.,
Defendants.

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Civ. No. 16-951-LPS-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION

Presently before the court in this asbestos-related personal injury action are the motions
for summary judgment of Defendants Union Carbide Corporation ("Union Carbide"), CurtissWright Corporation ("Curtiss-Wright"), Pfizer, Inc. ("Pfizer"), Honeywell International, Inc. 1
("Honeywell"), and United Technologies Corporation2 ("UTC"), as well as Goodyear Tire &
Rubber Company's ("Goodyear") (collectively, "Defendants") motion for partial summary
judgment. (D.1. 108; D.I. 110; D.I. 112; D.I. 114; D.I. 120; D.I. 122) 3 Plaintiffs John Decastro
("Plaintiff' or "Mr. Decastro") and Vicki DeCastro, his wife (collectively, "Plaintiffs"), did not
respond to these motions. As indicated in the chart infra and for the reasons that follow, the

1

Honeywell International, Inc. is formerly known as Allied Signal, Inc. ("Allied"), and is the
successor in interest to the Bendix Corporation ("Bendix"). (D.I. 72 at~ 8)
2

United Technologies is named individually and as successor to United Technologies Pratt &
Whitney Aircraft Division ("Pratt & Whitney"). (D.I. 72 at~ 8)
3

All briefing associated with these motions can be found at D.I. 111; D.I. 113; D.I. 115; D.I.
121; D.I. 123.

court recommends GRANTING Defendants' motions for summary judgment and partial
summary judgment, respectively.

Union Carbide Corporation

GRANT

Curtiss-Wright Corporation

GRANT

Pfizer, Inc.

GRANT

Honeywell International, Inc.

GRANT

United Technologies Corporation

GRANT.

Goodyear Tire & Rubber Company

GRANT

II.

BACKGROUND.

A. Procedural History
On September 1, 2016, Plaintiffs originally filed this personal injury action against
multiple defendants in the Superior Court of Delaware, asserting claims arising from Mr.
DeCastro's alleged harmful exposure to asbestos. (D.I. 1, Ex. 1) On October 14, 2016, the case
was removed to this court by Defendant UTC pursuant to 28 U.S.C. §§ 1442(a)(l), the federal
officer removal statue,4 and 1446. (D.I. 1) Plaintiffs filed a First Amended Complaint on May
24, 2017. (D.I. 72) Union Carbide, Curtiss-Wright, Pfizer, Honeywell; and UTC filed the
pending motions for summary judgment, individually. (D.I. 108; D.I. 110; D.I. 112; D.I. 114;
D.I. 120) Goodyear filed the pending motion for partial summary judgment individually. 5 (D.I.
D.I. 122) Plaintiffs did not respond to these motions. On November 20, 2017, Defendants sent a

4

The federal officer removal statute permits removal of a state court action to federal court
when, inter alia, such action is brought against "[t]he United States or an agency thereof or any
officer (or any person acting under that officer) of the United States or of any agency thereof,
sued in an official or individual capacity for any act under color of such office." 28 U.S.C. §
1442(a)(l).
5

Viewing the facts in the light most favorable to Plaintiffs, Goodyear's motion seeks to limit
Plaintiffs' claims to correspond with the aircraft upon which Mr. Decastro could have arguably
been exposed to asbestos-containing Goodyear products.
2

joint letter to the court seeking dismissal for Plaintiffs' failure to oppose any of their respective
summary judgment motions. (D.I. 128)
B. Facts
1._ Plaintiff's Alleged Exposure History
Plaintiffs allege that Mr. Decastro developed lung cancer as a result of exposure to
asbestos-containing materials during his service in the United States Air Force, as well as from
his civilian employment with Pacific Bell Telephone and United Airlines, and personal
automotive and aircraft maintenance work. (D.I. 72 at ,r,r 3-6, 14) Plaintiffs contend that Mr.
DeCastro was injured due to exposure to asbestos-containing products that Defendants
manufactured, sold, distributed, licensed, or installed. (Id. at ,r 9) Accordingly, Plaintiffs assert
claims for negligence, willful and wanton conduct, strict liability, and loss of consortium. (Id. at
6-13)

Mr. Decastro was deposed on February 21 and 22, 2017. (D.I. 37) Plaintiffs did not
produce any other fact or product identification witnesses for deposition. 6 Plaintiff began his
professional career in 1948 when he worked for Pacific Bell Telephone as a "frameman." (D.1.
121, Ex. E at 11 :23-12:5) As a "frameman," Plaintiff had to work with the telephone frames and
wiring that provided telephone services to customers. (Id. at 110: 1-111: 10) Plaintiff did not,
however, perform any work to any of the electrical panels. (Id. at 244: 1-4)
Two years later, in 1950, Plaintiff joined the United States Air Force where he served for
forty years. (Id. at 14: 15-19) Throughout his time in the Air Force, he held the duties of aircraft
mechanic, aircraft foreman, and aircraft superintendent. (Id. at 14:20-24) After first attending

6

The deadline for completion of depositions of all co-worker, product identification, and other
exposure testimony witnesses was July 17, 2017. (D.I. 48 at 8)
3

basic training at Lackland Air Force Base in San Antonio, Texas, Plaintiff went to Shepard Air
Force Base in Wichita Falls, Texas, to attend aircraft and engine school. (Id. at 120:20-23;
122:10-24)
Plaintiff reported to Williams Air Force Base ("Williams") in Chandler, Arizona, from
1951 to 1952. (Id. at 124:13-17) At Williams, Plaintiff performed maintenance, including brake
work, on Lockheed F-80 aircraft ("F-80"). (Id. at 16:19-17:10; 18:9-11) After Williams,
Plaintiff was stationed at Laredo Air Force Base ("Laredo") in Laredo, Texas, from 1951 to
1954. (Id. at 24:20-25) At Laredo, Plaintiff performed maintenance, including brake work, on
Lockheed T-33 aircraft ("T-33"). (Id. at 25:4-21) In 1954, Plaintiff was briefly discharged from
the Air Force. (Id. at 28:16-21) At this time, Plaintiff returned to San Francisco, California, and
went to work for United Airlines for about six months. (Id.) There, Plaintiff worked as an
aircraft mechanic, but did not perform any brake work. (Id. at 29: 1-4)
Plaintiff began civil service at Hamilton Air Force Base ("Hamilton") in late 1954 until
1968. (Id. at 29:24-30:3) During his tenure at Hamilton, Plaintiff worked on a numBer of
different aircraft such as P-51 Mustangs, F-80s, F-84s, Curtiss-Wright C-46s (C-46"), and
Fairchild C-119s ("C-119"). (Id. at 30: 16-31: 15) As an aircraft mechanic, he performed the
same repairs and brake work at Hamilton as he performed at Williams and Laredo. (Id. at 32: 17) Plaintiff was called for active duty at Hamilton for eighteen months, beginning in 1968. (Id.
at 39:13-20) While on active duty, Plaintiff served in England and Vietnam. (Id. at 150:21-6)
After active duty, Plaintiff went to Travis Air Force Base ("Travis") in 1970, where he
remained until he retired in 1990. (Id. at 161 :24-162:9) His job title when he first arrived in
Travis was aircraft mechanic, but he was later promoted to aircraft foreman, and eventually
superintendent. (Id. at 39:21-40:4) At Travis, Plaintiff worked on Lockheed C-141s Starlifters

4

("C-141 "). (Id. at 40:5-6)
Plaintiff resumed working for United Airlines from 1986 to 1996 as an aircraft mechanic
and hydraulic specialist. (Id. at 180:9-13) He did not perform any brake work while working for
United Airlines, but worked close to the brake shop. (Id. at 181:10-13) Plaintiff was not aware
of the manufacturer of any brakes the mechanics installed or removed at United Airlines. (Id. at
181: 14-182:2)
Finally, Plaintiff testified that he personally owned a 1963 Cessna 172, Cessna 150, and
an Ercoupe aircraft. (Id. at 44:14-45:1; 187:19-24) He performed maintenance and repair work
on the aircraft, including brake work. (Id. at 45:13-46:1) In addition to performing maintenance
work on his personal aircraft, Plaintiff also performed repairs and brake work on his numerous
personal vehicles. (Id. at 48:1-49:10)

2. Plaintiff's Product Identification Evidence
a. Union Carbide Corporation
Plaintiff did not identify an asbestos-containing Union Carbide product. (See D.I. 121,
Ex. E)

b. Curtiss-Wright Corporation
Plaintiff recalled working on Curtiss-Wright C-46 aircraft while stationed at Hamilton.
(D.I. 111, Ex. A at 297:4-15) He was a crew chief for one C-46 aircraft, but performed work on
all twelve that were "on the field." (Id. at 298:5-11) Plaintiff was personally responsible for
"maintaining the aircraft," performing work such as refueling, and changing oil and hydraulic
fluid. (Id. at 298:15-21) He did not remember doing any brake work on any of the C-46s. (Id.
at 298:12-14)

c. Pfizer, Inc.

5

Plaintiff did not identify an asbestos-containing Pfizer product. (See D.I. 121, Ex. E)

d. Honeywell International, Inc.
While serving at Williams, Plaintiff performed "four to five" brake replacements on F80s with Bendix and Goodyear brakes. (D.I. 115, Ex. A at 18:9-25; 20:21-25) Plaintiff did not
know the manufacturer of the brakes he removed from the F-80s. (Id., Ex. B at 141: 13-15)
Plaintiff believed that the replacement brakes he installed were manufactured by Bendix because
he recalled seeing Bendix packaging at some unknown place at an unknown time. (Id. at 132:25133:6) However, because there was no manufacturer's name on the packaging of replacement
brakes, he could not identify the manufacturer. (Id. at 132:3-8) In addition to personally
performing brake work at Williams, Plaintiff was present "four or five times" when other
mechanics performed brake work. (Id., Ex. A at 28 :6-11) He did not know the manufacturer of.
the brakes other mechanics installed in his presence. (Id., Ex. B at 139: 1-7)
While serving at Laredo, Plaintiff performed two brake replacements on T-33s with
Bendix and Goodyear brakes. (Id., Ex. A at 25:14-26:7) Plaintiff was not aware of the
manufacturer of any brakes he removed or installed on the T-33s. (Id., Ex.Bat 136:16-25;
141: 16-18) Plaintiff did not know how he obtained the name Bendix and Goodyear, but he was
"certain either Bendix or Goodyear" built the brakes for the T-33s and F-80s. (Id. at 137:20-25)
In addition to personally performing brake work at Laredo, Plaintiff was present "five or six

times" when other mechanics performed brake work. (Id., Ex. A at 27:24-28:5) He was not
aware of the manufacturer of the brakes other mechanics installed in his presence. (Id., Ex. B at
138:16-25)
While at Hamilton, Plaintiff performed "seven or eight" brake replacements with Bendix
or Goodyear brakes on F-80s. (Id., Ex. A at 31 :25-32:16) He did not see any manufacturer's

6

name on the brakes or packaging, nor was he aware of the manufacturer of the brakes he
removed from the F-80s. (Id., Ex.Bat 151:24-152:2; 153:3-154:2) Plaintiff also performed
eight brake replacements on C-119s while at Hamilton. (Id., Ex. A at 34:2-9) Plaintiff testified
that the brakes on the C-119s were bladder and drum brakes. (Id. at 34:2-14; Ex.Bat 154:11-18;
Ex.Bat 246:9-247:4) When asked the manufacturer ofbrakes he installed on the C-119s he
responded, "[a]ll I can remember is Bendix and Goodyear. Those two names stick with me."
(Id. at 37:24-38:3) However, Plaintiff later testified that he was not aware of the manufacturer of
brakes he installed or removed on the C-l 19s. (Id., Ex.Bat 154:19-155:1)
Plaintiff testified that he performed at least two brake replacements on his personal
Cessna 150 with what "could have been Bendix" brakes. (Id., Ex. A at 45:13-46:7) However,
upon specific questioning about the brake work he performed on his Cessna 150, Plaintiff
testified that he was not aware of the manufacturer of the brakes he removed or installed and
could not offer any testimony that he did indeed install Bendix brakes. (Id., Ex. B at 185: 11186:25)
e. United Technologies Corporation

Plaintiff did not identify an asbestos-containing UTC or Pratt & Whitney product. (See
D.I. 121, Ex. E)

f.

Goodyear Tire & Rubber Company

While stationed at Williams and Hamilton, Plaintiff testified that he performed a total of
eleven to thirteen brake replacements on F-80s with "Goodyear (and Bendix)" brakes. (D.I. 123,
Ex. A at 18:9-25; 20:21-25; 31:25-32:16) While stationed at Laredo, Plaintiff performed two
brake replacements on T-33s with "Goodyear (and Bendix)" brakes. (Id. at 25:14-26:7)
Plaintiff also performed eight brake replacements on C-119s while at Hamilton. (Id. at

7

34:2-9) Plaintiff testified that the brakes on the C-119s were bladder and drum brakes. (Id. at
34:2-19; 154: 11-18) When asked the manufacturer of brakes he installed on the C-119s, he
responded, "[a]ll I can remember is Bendix and Goodyear. Those two names stick with me."

(Id. at 37 :24-3 8 :3) Plaintiff did not know the manufacturer of any of the brakes he removed
from the C-119s. (Id. at 154:19-22) Finally, Plaintiff testified that, at Travis, he changed the
disc brakes on the C-141 "maybe three times" with what he believed to be Goodyear breaks. (Id.
at 40:5-25; 41: 12-20; 42:6-11) He stated that he was also present for five or six brake jobs that
other mechanics performed, with what he believed to be Goodyear brakes. (Id. 42:12-20)

III.

LEGAL STANDARD
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 oflaw." 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) (citingAnderson 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. v. Zenith Radio

Corp., 475 U.S. 574,587 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 46061 (3d Cir. 1989); Scott v. Harris, 550 U.S. 372,380 (2007). An assertion that a fact cannot

8

be-----0r, alternatively, 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)(l)(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; see also Podobnikv. U.S. Postal Serv., 409 F.3d 584,594 (3d Cir. 2005). 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 colorable, or is not significantly probative, summary
judgment may be granted." Id. at 249-50 (internal citations omitted); see also Celotex, 477 U.S.
at 322. If the non-movant fails to make a sufficient showing on an essential element of its case
on which it bears the burden of proof, then the movant is entitled to judgment as a matter oflaw.

See Celotex, 477 U.S. at 322.
If a party fails to address another party's assertion of fact, the court may consider the fact
undisputed, or grant summary judgment if the facts show that the movant is entitled to it. Fed. R.
Civ. P. 56(e)(2)-(3). 7 A plaintiffs failure to respond "is not alone a sufficient basis for the entry

7

This section was added to Rule 56 to overcome cases in the Third Circuit that impaired the
utility of th~ summary judgment device:
A typical case is as follows: A party supports his motion for summary judgment
by affidavits or other evidentiary matters sufficient to show that there is no

9

of a summary judgment." Anchorage Assocs. v. Virgin Islands Bd. Of Tax Review, 922 F.2d
168, 175 (3d Cir. 1990). Even where a party does not file a responsive submission to oppose the
motion, the court must still find that the undisputed facts warrant judgment as a matter oflaw.

Miller v. Ashcroft, 76 F. App'x 457,462 (3d Cir. 2003) (citing Fed. R. Civ. P. 56; Lorenzo v.
Griffith, 12 F.3d 23, 28 (3d Cir. 1993)). In other words, the court must still determine whether
the unopposed motion for summary judgment ''has been properly made and supported."

Williams v. Murray, Inc., 2014 WL 3783878, *2 (D.N.J. July 31, 2014) (quotingMuskettv.
Certegy Check Svcs., Inc., 2010 WL 2710555, at *3 (D.N.J. July 6, 2010)).
B. California Law
The parties stipulate and agree that California substantive law should be applied to the
claims and defenses asserted in this case. (D.I. 103)
1. Product Identification/Causation Under California Law

A plaintiff in asbestos litigation must prove, as a threshold matter, exposure to the
defendant's product. McGonnell v. Kaiser Gypsum Co., 120 Cal. Rptr. 2d 23, 26 (Cal. Ct. App.
2002). If there has been no exposure, there is no causation. Durnin v. Owens-Corning Fiberglas

genuine issue as to a material fact. The adverse party, in opposing the motion,
does not produce any evidentiary matter, or produces some but not enough to
establish that there is a genuine issue for trial. Instead, the adverse party rests on
averments of his pleadings which on their face present an issue.
Fed. R. Civ. P. 56(e) advisory committee's note. Before the amendment, the Third Circuit would
have denied summary judgment if the averments were "well-pleaded," and not conclusory. Id.
However, the Advisory Committee noted that summary judgment is meant to pierce the
pleadings and to assess proof to see whether there is a genuine need for trial. Id. Accordingly,
the pre-amendment Third Circuit precedent was incompatible with the basic purpose of the rule.
Id. The amendment recognizes that, "despite the best efforts of counsel to make his pleadings
accurate, they may be overwhelmingly contradicted by the proof available to his adversary." Id.
The amendment, however, was not designed to affect the ordinary standard applicable to
summary judgment. ·Id.
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Corp., 33 Cal. Rptr. 2d 702, 704 (Cal. Ct. App. 1994). The standard for proving causation in an
asbestos-related cancer case was set forth by the California Supreme Court in Rutherford v.

Owens-Illinois, Inc., 941 P.2d 1203 (Cal. 1997). In Rutherford, the court held:
In the context of a cause of action for asbestos-related latent injuries, the plaintiff
must first establish some threshold exposure to the defendant's defective asbestoscontaining products, and must further establish in reasonable medical probability
that a particular exposure or series ofexposures was a "legal cause" of his injury,
i.e., a substantial factor in bringing about the injury. In an asbestos-related cancer
case, the plaintiff need not prove that fibers from the defendant's product were the
ones, or among the ones, that actually began the process of malignant cellular
growth. Instead, the plaintiff may meet the burden of proving that exposure to
defendant's product was a substantial factor causing the illness by showing that in
reasonable medical probability it was a substantial factor contributing to the
plaintiff's or decedent's risk of developing cancer.

Id. at 1223. In determining which exposures to asbestos-containing products contributed
significantly enough to the total occupational dose to be considered "substantial factors" in
causing the disease, the Rutherford court also stated that "[t]he substantial factor standard is a
relatively broad one, requiring only that the contribution of the individual cause be more than
negligible or theoretical." Id. at 1220.

2. Bare Metal Defense Under California Law
The Supreme Court of California has held that, under California law, a product
manufacturer generally is not liable in strict liability or negligence for harm caused by a third
party's products. See O'Neil v. Crane Co., 53 Cal. 4th 335 (2012). As such, defendant
manufacturers are not liable for harm caused by asbestos products they did not manufacture or
distribute. Id. at 362-66. Similarly, the court does not hold that defendants are strictly liable for
a failure to warn of the hazards of the release of asbestos dust surrounding their products.
"California law does not impose a duty to warn about dangers arising entirely from another
manufacturer's product, even if it is foreseeable that the products will be used together." Id. at
361. As to a plaintiffs claim based on a defendant's negligent failure to warn, the court
11

concluded that "expansion of the duty of care as urged here would impose an obligation to
compensate on those whose products caused the plaintiffs no harm. To do so would exceed the
boundaries established over decades of product liability law." Id. at 365.

IV.

DISCUSSION
A. Union Carbide Corporation
The court recommends granting Union Carbide's motion for summary judgment, because

there is no genuine issue of material fact in dispute as to whether Plaintiff was exposed to an
asbestos-containing Union Carbide product. Neither in Mr. DeCastro's deposition, nor in
Plaintiffs' discovery responses, did Plaintiffs identify a Union Carbide product. (See D.I. 121,
Ex. E; D.I. 113, Ex. C) Therefore, summary judgment should be granted.

B. Curtiss-Wright Corporation
The court recommends granting Curtiss-Wright's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether Plaintiff was exposed to an
asbestos-containing Curtiss-Wright product. Plaintiff recalled working on Curtiss-Wright C-46
aircraft while stationed at Hamilton. (D.I. 111, Ex. A at 297:4-15) He testified, however, that he
does not know if any of this work caused him to be exposed to asbestos, and that the only
possible exposure he could have related to the aircraft was from changing brakes.· (Id. at 298 :22299:2) He did not remember doing any brake work on any of the C-46s. (Id. at 298:12-14) As
such, Plaintiff testified that he does not think he was exposed to any asbestos from the work he
did on Curtiss-Wright C-46 aircraft. (Id. at 299:9-13) Plaintiff also does not remember seeing
anyone else working on a C-46 that would have exposed him to asbestos. (Id. at 299:20-24)
Moreover, Plaintiff has not produced a medical causation expert report that opines that Plaintiffs
injuries are related to Curtiss-Wright aircraft or equipment. Therefore, Plaintiff has not shown

12

exposure to a Curtiss-Wright asbestos-containing product, nor has he established with reasonable
medical probability that such exposure was a substantial factor in bringing about his injury.

Rutherford, 941 P.2d at 1219. Therefore, sum.m.ary judgment should be granted.
C. Pfizer, Inc.
The court recom.m.ends granting Pfizer's motion for sum.m.ary judgment, because there is
no genuine issue of material fact in dispute as to whether Plaintiff was exposed to an asbestoscontaining Pfizer product. Neither in Mr. DeCastro's deposition, nor in Plaintiffs' discovery
responses, did Plaintiffs identify a Pfizer product. (See D .I. 121, Ex. E; D .I. 113, Ex. C)
Because Plaintiff has failed to show that his injuries were proximately caused by a Pfizer
asbestos-containing product, sum.m.ary judgment should be granted.

D. Honeywell International, Inc.
The court recom.m.ends granting Honeywell's motion for sum.m.ary judgment, because
there is no genuine issue of material fact in dispute as to whether Plaintiff was exposed to an
asbestos-containing Honeywell product. Plaintiff has not shown exposure to a Honeywell
asbestos-containing product, nor has he established in reasonable medical probability that such ·
exposure was a substantial factor in bringing about his injury. Rutherford, 941 P.2d at 1219.
Plaintiff could not identify a specific aircraft or a specific airbase where he worked with a
Bendix product, nor could he testify regarding the number of times, if any, he may have worked
with a Bendix product. 8 (D.I. 115, Ex.Bat 177:24-178:10) Although Plaintiffnam.ed Bendix as
a manufacturer of a brand of replacement brakes he worked with at Air Force bases Williams,
Laredo, Hamilton, and also on his personal aircraft, he identified Bendix as the brake
manufacturer only because he recalled seeing Bendix packaging at some unknown place at an

8

Honeywell is the successor in interest to the Bendix. (D .I. 72 at 'ii 8)
13

unknown time. (D.I. 115, Ex. A at 18:9-25; 20:21-25; 25:14-26:7; 31:25-32:16; 45:13-46:7; Ex.
Bat 132:25-133:6) There was no manufacturer's name on the packaging of replacement brakes,
so Plaintiff did not know what manufacturer's brakes he or the other mechanics removed or
installed. (Id., Ex.Bat 132:3-8; 138:16-25; 151:24-152:2; 153:3-154:2; 185:11-186:25) A mere
possibility of exposure is not enough to establish causation when the evidence creates only a
"dwindling steam of probabilities that narrows into conjecture." McGonnell, 98 Cal. App. 4th at
1105. Moreover, Honeywell's former "Project Manager for the Aerospace Aircraft Landing
Systems, Wheels and Brakes Division" stated in an affidavit that Honeywell did not
manufacture, supply, sell, or distribute brakes for Cessna 150, F-80, and T-33 aircra:ft (D.I. 115,
Ex.Cat ,r 4), nor did Honeywell manufacture the bladder or drum brakes that Plaintiff testified
he installed on the C-119 (D.I. 115, Ex.Cat ,r,r 5-6). Thus, Plaintiffs testimony naming Bendix
as a brand of brakes he may have encountered during his service in the Air Force is Plaintiffs
own speculation and conjecture rather than evidence of record sufficient to create a disputed
material fact.
Because Plaintiff has failed to show that his injuries were proximately caused by a
Honeywell/Bendix asbestos-containing product, summary judgment should be granted.
E. United Technologies Corporation

The court recommends granting UTC's motion for summary judgment because Plaintiff
has failed to show that a material issue of fact exists as to whether a UTC asbestos-containing
product was a substantial factor in causing his injuries. Plaintiff did not identify any exposure to
an asbestos-containing UTC or Pratt & Whitney engine or product. (See D.I. 121, Ex. E)
Plaintiff was never certified as an engine power plant mechanic or specialist, and the only work
he performed on aircraft engines was to remove and install component parts. (Id. at 255:19-24;

14

256:9-16; 268:12-17) The only significant engine repair Plaintiff described was when he
replaced a single cylinder on an engine in a C-124. (Id. at 257:5-259:24) However, he did not
know the manufacturer of the replacement cylinder, nor did he know when the engine or aircraft
was built, or its prior maintenance history. (Id. 260: 17-261 :24) Plaintiff does not believe that
this cylinder replacement caused him to be exposed to asbestos. (Id. at 269:20-24) Therefore,
Plaintiff has not established exposure to a UTC asbestos-containing product.
Moreover, application of the bare metal defense warrants summary judgment in UTC's
favor because Plaintiff fails to show that a material issue of fact exists as to whether Pratt &
Whitney provided asbestos-containing replacement parts to be used with its engines. Pratt &
Whitney aviation engines are mostly metal, and because relatively few asbestos-containing parts
are included in the final assembly of a Pratt & Whitney engine, relatively few repair or
maintenance procedures require the removal of an asbestos-containing part. (Id., Ex. G at ,r,r 57) These asbestos-containing parts were not manufactured by Pratt & Whitney. (Id. at ,r 8) The
manufacturers and vendors of these asbestos-containing parts were free to, and did, supply
replacement parts that could be used on Pratt & Whitney engines directly to operators of Pratt &
Whitney engines, such as the U.S. Air Force. (Id. at ,r 9) Without records identifying a
particular part as being supplied by Pratt & Whitney, the only way to know that a non-metal part,
such as a gasket, was supplied by Pratt & Whitney would be to determine that the non-metal part
had not been removed since the engine was originally assembled at the Pratt & Whitney factory.

(Id. at ,r 10) Plaintiff did not know the manufacturer of any component part, nor did he know the
maintenance history of the aircrafts. (D.I. 121, Ex.Eat 255:19-24; 256:9-16; 260:17-261 :24;
268: 12-17) California has recognized the "bare metal defense" and under California law, a
product manufacturer is not liable in strict liability or negligence for harm caused by a third

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party's products. 0 'Neil, 53 Cal. 4th at 348, 362-66. Nor does a manufacturer have a duty to
warn "about dangers arising entirely from another manufacturer's product, even if it is
foreseeable that the products will be used together." Id. at 361.
Plaintiff has failed to show that a material issue of fact exists as to whether he was
exposed to asbestos from products manufactured or supplied by UTC. Consequently, the court
recommends granting UTC' s motion for summary judgment.

F. Goodyear Tire & Rubber Company
The court recommends granting Goodyear's motion for partial summary judgment,
because there is no genuine issue of material fact in dispute as to whether Plaintiff was exposed
to an asbestos-containing Goodyear product from C-119 and C-141 aircraft.
Goodyear moves for partial summary judgment as to Plaintiffs alleged brake work on C119s and C-141 s because Plaintiff failed to develop non-speculative evidence of exposure to an
asbestos-containing product on such aircraft for which Goodyear is responsible. (D.I. 123 at 4)
Plaintiff performed approximately eight brake replacements on C-l 19s while at Hamilton. (Id. at
34:2-9) Plaintiff testified that the brakes on the C-119s were bladder and drum brakes. (Id. at
34:2-14) When asked to identify the manufacturer of brakes he installed on the C-119s he
responded, "[ a]ll I can remember is Bendix and Goodyear. Those two names stick with me."
(Id. at 37:24-38:3) However, Plaintiff later testified that he was not aware of the manufacturer of

brakes he installed or removed on the C-l 19s. (D.I. 115, Ex.Bat 154:19-155:1) Additionally,
Goodyear never manufactured or supplied drum brakes for C-119 aircraft. (D .I. 123, Ex. B at ,r
9) As to C-141 aircraft, Plaintiff changed the brakes on the C-141 "maybe three times" with
what he believed to be Goodyear breaks. (Id. at 40:5-25; 42:6-11) He stated that he was also
present for five or six brake jobs that other mechanics performed, with what he believed to be

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Goodyear brakes. (Id. 42:12-20) However, Goodyear's brakes for the C-141 aircraft were all
non-asbestos tri-metallic brakes. (D.I. 123, Ex.Bat, 9) As such, Plaintiff has not shown
exposure to a Goodyear asbestos-containing product in relation to the C-119 and C-141 aircraft,
nor has he established in reasonable medical probability that such exposure was a substantial
factor in bringing about his injury. Rutherford, 94 l P .2d at 1219.
Therefore, the court recommends granting Goodyear's motion for partial summary
judgment with respect to Plaintiffs alleged brake work on the Fairchild C-119 and Lockheed C141. Plaintiffs' claims against Goodyear are, therefore, limited to Mr. DeCastro's alleged
exposure from brake work on the Lockheed T-33 and Lockheed F-80.

V.

CONCLUSION
For the foregoing reasons, and as addressed in the chart infra, the court recommends

granting Defendants' motions for summary judgment and partial summary judgment,
respectively.

Union Carbide Corporation

GRANT

Curtiss-Wright Corporation

GRANT

Pfizer, Inc.

GRANT

Honeywell International, Inc.

GRANT

United Technologies Corporation

GRANT

Goodyear Tire & Rubber Company

GRANT

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation. Fed.
R. Civ. P. 72(b)(2). The objection and responses to the objections are limited to ten (10) pages
each. The failure of a party to object to legal conclusions may result in the loss of the right to de

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novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924,925 n.1 (3d Cir.
2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded.uscourts.gov.
Dated: January ~5, 2018

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