U.S. District Court for the District of Delaware, February 8, 2021
The plaintiffs alleged that the decedent, Arthur L. Carnes, was exposed to asbestos while serving in the United States Air Force from December 1955 to February 1964. Mr. Carnes was stationed as a mechanic at Plattsburg Air Force Base in New York from 1955 to 1961, and was then stationed at Carswell Air Force Base in Fort Worth, Texas from 1961 to 1964. Throughout his service, he inspected aircraft and worked as a crew chief. It was undisputed that General Dynamics assembled some of the aircraft that Mr. Carnes worked on, and that General Dynamics operated one of the Air Force plants in which Mr. Carnes worked while stationed at Carswell. Mr. Carnes testified that he replaced clamps on the aircraft, which he testified were insulted with either rubber or some other “heat resistance,” and also testified that he performed maintenance work on the wings of the aircraft, which were insulated with what looked like “preformed insulation type of material,” a “heavy tin foil.” Notwithstanding, Mr. Carnes testified that he had never heard of asbestos during his time at Carswell, and did not have any knowledge as to whether the aircraft components that he encountered contained asbestos.
General Dynamics moved for summary judgment, and it was undisputed that Texas substantive law applied to the case. Under Texas law, the plaintiff in an asbestos-related products liability action “must prove that the defendants supplied the product which caused the injury.” Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex. 1989). Further, “[a] plaintiff must prove that more probably than not, he actually breathed asbestos fibers originating in defendants’ products.” Slaughter v. S. Talc Co., 949 F.2d 167, 171 (5th Cir. 1991).
The court concluded that the plaintiffs had failed to produce evidence that Mr. Carnes was exposed to an asbestos-containing product attributable to General Dynamics, and further failed to produce any evidence that Mr. Carnes was exposed to asbestos at the Carswell base or the Air Force plant operated by General Dynamics. While Mr. Carnes identified the clamps that he replaced on aircraft, the plaintiffs had failed to demonstrate the existence of a material issue of fact regarding whether or not the clamps contained asbestos. Rather, the only evidence of asbestos in the clamps related to the years 1965 to 1993—after Mr. Carnes’ service had ended. Furthermore, Mr. Carnes had testified that he never heard of asbestos being present at Carswell or in the aircraft on which he worked. The court rejected the affidavit of the plaintiffs’ expert, Jerome E. Spear, who opined that Mr. Carnes was exposed to asbestos through his work on clamps and insulation, because the evidence upon which Mr. Spear relied related to asbestos in the clamps after Mr. Carnes’ service had ended. Furthermore, his opinion on insulation was based on documents that related to the aircraft’s initial manufacture, and not the aircraft assembled or modified by General Dynamics, which were the aircraft on which Mr. Carnes worked. As such, the court found Mr. Spears’ opinion speculative and unsupported by the evidence, and therefore insufficient to survive summary judgment.
General Dynamics also filed a motion to strike Mr. Spear’s affidavit in the reply brief on its summary judgment motion. However, citing procedural deficiencies, the court declined to rule on the motion to strike.