Decastro v. Beech Aircraft Corporation et al

MOTION for Summary Judgment Pursant to Fed. R. Civ. P. 56 -

D. Del.May 18, 2017

ME1 24862627v.1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JOHN DECASTRO and VICKI ) DECASTRO, ) ) Plaintiffs, ) ) v. ) Civ. No. 16-951-SLR/SRF ) AEROJET ROCKETDYNE HOLDINGS, ) INC., et al., ) ) Defendants. ) TEXTRON INC.’S MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 56 Defendant Textron Inc. (hereafter “Textron”) hereby moves for the entry of judgment as a matter of law pursuant to Rule 56 of the Federal Rules of Civil Procedure. As grounds therefore, Textron shows unto the Court the following: NATURE AND STAGE OF THE PROCEEDINGS Plaintiff, a California resident, brought this product liability action against Textron Inc. and others for alleged personal injuries arising from alleged exposure to asbestos fibers that occurred in California. Plaintiff alleges that he worked in the telephone and aviation industries as well as the United States Air Force and came in contact with asbestos containing products during the course of his work. He also alleges that he was exposed to asbestos containing products while working on various vehicles and personal aircraft. Textron filed a motion to dismiss Plaintiff’s complaint for failure to state a claim. That motion is currently pending and ripe for review. However, in addition to the insufficiency of Plaintiff’s allegations, there is also no admissible evidence from which a reasonable jury could conclude that Mr. DeCastro was Case 1:16-cv-00951-SLR-SRF Document 70 Filed 05/18/17 Page 1 of 10 PageID #: 418 2 ME1 24862627v.1 exposed to and inhaled asbestos while working on or around any Textron product. He admits this. Nor can Mr. DeCastro demonstrate by admissible evidence that any Textron product was a substantial cause of his disease. Rather, Mr. DeCastro bases his allegations against Textron on his work on or around one Cessna model 150 aircraft done between 1977 and 1980. The law is clear that Textron is not liable for any purported act or omission of its former wholly owned subsidiary—here, Cessna Aircraft Company (“Cessna”). Moreover, on or about January 1, 2017, Cessna merged into Textron Aviation—also a distinct legal entity from Textron. Due to the operation of corporate law, Textron is not liable for any alleged act or omission of Cessna or Textron Aviation making summary judgment in favor of Textron appropriate. Because Mr. DeCastro’s product liability claims fail, his wife’s loss of consortium claim necessarily fails as well. The Court entered a scheduling order on March 27, 2017. The Court set the following deadlines: (1) joinder of parties and amendment of pleadings due by April 3, 2017; (2) fact discovery due by February 1, 2018, (3) status report due by February 22, 2018; and (4) the dispositive motion deadline is presently set for October 16, 2017. The Court also set a status conference for March 27, 2018 at 10:00 a.m. (See D.I. 48). SUMMARY OF THE ARGUMENT 1. Plaintiff admits he did not directly work with any product manufactured, sold, or distributed by Textron. Accordingly, there is no basis for the imposition of liability against Textron because Plaintiff has failed to identify any Textron product which allegedly caused him injury. Case 1:16-cv-00951-SLR-SRF Document 70 Filed 05/18/17 Page 2 of 10 PageID #: 419 3 ME1 24862627v.1 2. There is no legal basis for the imposition of liability against Textron for the alleged acts or omissions of Cessna, which was, from February 28, 1992 through January 1, 2017, a wholly owned subsidiary of Textron. Pursuant to Delaware law, one corporation cannot be found liable for the acts or omissions of another separate corporation—even if the corporations are parent and subsidiary. 3. There is no basis for the imposition of liability against Textron after January 1, 2017, because Cessna merged with Textron Aviation as of that date. Textron and Textron Aviation are also separate and independent legal entities and no liability can attach to Textron by virtue of Cessna’s merger with Textron Aviation. STATEMENT OF UNDISPUTED MATERIAL FACTS 1. Ann T. Willaman is an Assistant Secretary of Textron Inc. (“Textron”). (See Affidavit of Ann T. Willaman, attached here as Exhibit A at ¶ 2). 2. She has been employed in this position for the past 32 years, and employed with Textron for 40 years. (Id. ¶ 3). 3. Her responsibilities as an Assistant Secretary include the monitoring of each corporate entity in the Textron organization, to ensure that each entity is (and remains) in compliance with all statutory requirements and corporate formalities. (Id. ¶ 4). 4. As an Assistant Secretary of Textron, her duties require that she remains knowledgeable on the general lines of business pursued by Textron, its operating divisions and subsidiary corporations. She also has personal knowledge of the ownership, functional, operating and legal relationships between Textron and the company’s divisions and subsidiary corporations. (Id. ¶ 5). Case 1:16-cv-00951-SLR-SRF Document 70 Filed 05/18/17 Page 3 of 10 PageID #: 420 4 ME1 24862627v.1 5. Cessna Aircraft Company (“Cessna”) was a Kansas corporation, having its principal offices and place of business in Wichita, Kansas. (Id. ¶ 7). 6. Cessna was acquired by Textron through a stock acquisition transaction completed February 28, 1992. (Id. ¶ 8). Cessna was a wholly owned subsidiary of Textron until January 1, 2017. (Id. ¶ 8). 7. Textron is a publicly traded Delaware corporation, having its principal offices and place of business at 40 Westminster Street, Providence, Rhode Island. (Id. ¶ 6). 8. Textron and Cessna were at all times separate legal entities. Each company had an individual, independent legal existence. Each entity had its own management team and principal officers and separate board of directors. (Id. ¶ 9). 9. Cessna was responsible for the day-to-day operation of its business. Textron did not control or dominate the business of Cessna but rather exercised only such oversight as is consistent with the obligations and corporate governance responsibilities of a parent corporation. (Id. ¶ 10). 10. Textron did not design, manufacture, service, market, or sell the aircraft or communicate with the Federal Aviation Administration concerning any aspect of the aircraft, the foregoing being the sole responsibility of Cessna. (Id. ¶ 11). 11. On or about January 1, 2017, Cessna merged with Textron Aviation Inc., a Kansas corporation. Textron Aviation is a Kansas corporation and a wholly-owned subsidiary of Textron, having its principal offices and place of business in Wichita, Kansas. Textron and Textron Aviation are and were at all times separate legal entities. Each company has an Case 1:16-cv-00951-SLR-SRF Document 70 Filed 05/18/17 Page 4 of 10 PageID #: 421 5 ME1 24862627v.1 individual, independent legal existence. Each entity has its own management team and principal officers and separate board of directors. (Id. ¶ 12). 12. Textron Aviation is responsible for the day-to-day operation of its business. Textron did not control or dominate the business of Textron Aviation but rather exercised only such oversight as is consistent with the obligations and corporate governance responsibilities of a parent corporation. (Id. ¶ 13). 13. Plaintiff alleges that he was “wrongfully exposed to and inhaled, ingested, or otherwise absorbed asbestos fibers . . . emanating from certain products he was working with and/or around which were manufactured, sold, distributed, or installed by the Defendants . . . .” (See Plaintiff’s Second Amended Complaint, attached here as Exhibit B, at ¶ 10). He includes Textron in the list of Defendants. (Id.). He further alleges that his exposure caused him to contract lung cancer. (Id. at ¶ 14). 14. Plaintiff testified that he did not work with any product manufactured, sold, distributed, or installed by Textron. (See Deposition of J. DeCastro, attached here as Exhibit C, at 206:23 – 207:12). 15. Plaintiff testified that he did some maintenance work on a Cessna 150, a small single aircraft that he owned between 1977 and 1980. (Ex. C at 210:1-25). STANDARD OF REVIEW The standard for review for consideration of a motion for summary judgment is well established. The Third Circuit, in an asbestos case describes it as follows: “A moving party is entitled to summary judgment only if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” In re Asbestos Prod. Liab. Litig. (No. VI), Case 1:16-cv-00951-SLR-SRF Document 70 Filed 05/18/17 Page 5 of 10 PageID #: 422 6 ME1 24862627v.1 837 F.3d 231, 235 (3d Cir. 2016) (quoting Fed. R. Civ. P. 56(a)). “A dispute about a material fact is ‘genuine’ only ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “While all reasonable inferences must be drawn in favor of the nonmoving party, ‘an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat summary judgment.’” Id. (quoting Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014) (quotation marks omitted)). The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A failure of proof concerning an essential element of the non-moving party’s case renders all other facts immaterial. Celotex Corp., 477 U.S. at 323. ARGUMENT A. Plaintiff’s Failure to Identify a Product Manufactured, Sold or Distributed by Textron Is Fatal to His Claims Pursuant to California Law. 1 In his Second Amended Complaint, Plaintiff asserts claims for negligence, willful and wanton conduct, and strict product liability against Textron and the other defendants. Plaintiff is required to prove that he was injured as a result of exposure to asbestos-containing products designed, manufactured, distributed, supplied or sold by Textron. This he cannot do. California law requires a plaintiff bringing a product liability action to prove, among other things, (1) the identity of the injury-causing product; and (2) the identity of the manufacturer/supplier of the 1 In general, Delaware courts apply the Restatement (Second) of Conflicts of Laws to choice-of-law issues. See, e.g., Bell Helicopter Textron, Inc. v. Arteaga, 113 A.3d 1045, 1051 (Del. 2015) (finding that law of the place where the alleged injury occurred in a product liability case applied). For purposes of this motion, Textron does not dispute that California law applies to Plaintiff’s tort claims. Case 1:16-cv-00951-SLR-SRF Document 70 Filed 05/18/17 Page 6 of 10 PageID #: 423 7 ME1 24862627v.1 injury causing product. Rutherford v. Owens-Illinois, Inc., 16 Cal.4 th 953, 968 (Cal. 1997) (plaintiff in a product liability case based on asbestos exposure “must provide that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.”). In a case involving purported asbestos-related injuries, a plaintiff must demonstrate “some threshold exposure to … asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.” Casey v. Perini Corp., 206 Cal.App.4th 1222, 1236 (Cal. App. 2012) (quoting Rutherford, 16 Cal.4 th at 982). The Plaintiff must offer more than speculation to prove product identification. Id. at 1237. In this case, the Plaintiff has no evidence that he was exposed to an asbestos-containing product allegedly designed, manufactured, distributed, supplied or sold by Textron; he admits that he was not exposed to any Textron product. (See Ex. C at 207:6-12). In his Second Amended Complaint, Plaintiff alleges that he developed lung cancer as a result of working with, around, or near asbestos materials specified, mined, manufactured, distributed, sold, licensed, leased, installed or removed by various defendants, including Textron. (See Ex. B, Second Am. Compl., ¶ 9). Plaintiff also alleges that the Defendants, including Textron “were also engaged in the development, manufacture, distribution, sales, licensing or leasing of equipment, procedures or technology necessary to mine, manufacture, sell, distribute, install, remove, and use asbestos and asbestos-containing products.” (Id.). However, during his deposition, Plaintiff expressly testified that he did not work with any product designed, manufactured, distributed, supplied or sold by Textron. (See Ex. C at 210:1- 25). Given that the Plaintiff disavows having come in contact with any Textron product, he Case 1:16-cv-00951-SLR-SRF Document 70 Filed 05/18/17 Page 7 of 10 PageID #: 424 8 ME1 24862627v.1 cannot demonstrate that Textron manufactured or supplied any product which allegedly caused him to develop lung cancer. Plaintiff cannot meet his burden to identify a Textron product that purportedly caused him harm. Summary judgment in favor of Textron is, therefore, appropriate. B. Textron is not Liable for Any Act or Omission of Its Former Wholly Owned Subsidiary Pursuant to Delaware Law. 2 As discussed above, Plaintiff has not identified any Textron product, the heart of any product liability claim; but he also claims that Textron is a successor-in-interest to Cessna, and therefore responsible for an aircraft manufactured decades before Textron acquired Cessna. (See Ex. B, Second Am. Compl.). Plaintiff’s claims against Textron under a successor-in-interest theory fail as a matter of well-settled corporate law principles holding that a parent corporation is not liable for the conduct of its subsidiaries. This principle is clearly recognized by the United States Supreme Court, which calls it “a general principle of corporate law deeply ‘ingrained in our economic and legal systems’ that a parent corporation (so-called because of control through ownership of another corporation’s stock) is not liable for the acts of its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61 (1998) (quoting Douglas & Shanks, Insulation from Liability Through Subsidiary Corporations, 39 Yale L.J. 193 (1929)). The Court went on to state “‘[n]either does the mere fact that there exists a parent-subsidiary relationship between two corporations make the one liable for the torts of its affiliate.’” Id. (quoting 1 W. Fletcher, Cyclopedia of Law of Private Corporations § 33, p. 568 (rev. ed. 1990)). “Limited liability is the rule, not the exception.” Id. (quoting Anderson v. 2 Delaware law applies to the question whether a Delaware parent corporation should be liable for a subsidiary’s obligations even when the subsidiary is a foreign corporation. Mobil Oil Corp. v. Linear Films, Inc., 718 F. Supp. 260 (1989) (citing Pauley Petroleum, Inc. v. Continental Oil Co., 239 A.2d 629 (Del. 1968)). Case 1:16-cv-00951-SLR-SRF Document 70 Filed 05/18/17 Page 8 of 10 PageID #: 425 9 ME1 24862627v.1 Abbott, 321 U.S. 349, 362 (1944); see also Burnet v. Clark, 287 U.S. 410, 415 (1932) (“A corporation and its stockholders are generally to be treated as separate entities”). The Supreme Court recognized these principles are so clear as to be matters of “hornbook” law: “Thus it is hornbook law that ‘the exercise of the ‘control’ which stock ownership gives to the stockholders ... will not create liability beyond the assets of the subsidiary. That ‘control’ includes the election of directors, the making of by-laws ... and the doing of all other acts incident to the legal status of stockholders. Nor will a duplication of some or all of the directors or executive officers be fatal.” Id. at 61-62 (quoting Douglas 196 (footnotes omitted)). Pursuant to these principles, Plaintiff cannot present admissible evidence to overcome Textron’s separate corporate existence from Cessna. The undisputed evidence demonstrates that the two companies remained separate and distinct during the time Textron was Cessna’s parent corporation. Ms. Willaman’s affidavit demonstrates that the companies each maintained a separate legal identity, had different management teams, distinct boards of directors, and Cessna was responsible for the operation of its own business. (Ex. A, ¶ 9). Textron did not dominate Cessna’s business. (Ex. A, ¶ 10). Thus, the general rule of limited corporate liability must be applied here. Because there is no genuine issue of material fact as to Textron’s limited corporate liability, summary judgment in favor of Textron is warranted. C. Textron is not Liable for Any Act or Omission of Textron Aviation into which Cessna Merged in January 2017. To any extent the Plaintiff may argue that Textron should be liable for Cessna’s alleged use of asbestos-containing products because Cessna recently merged into Textron Aviation, that argument is legally and factually insufficient due to the same principles of limited corporate liability discussed above. On or about January 1, 2017, Cessna merged into Textron Aviation. Case 1:16-cv-00951-SLR-SRF Document 70 Filed 05/18/17 Page 9 of 10 PageID #: 426 10 ME1 24862627v.1 Regardless, Textron and Textron Aviation are also separate and distinct corporate entities. (Ex. A, ¶ 12). Textron does not dominate Textron Aviation’s business. (Ex. A, ¶ 13). Because of these undisputed realities, Textron is not and cannot be liable for any alleged obligation of its subsidiary Textron Aviation. D. Because Plaintiff’s Product Liability Claims Fail, Mrs. DeCastro’s Loss of Consortium Claim Also Fails. Plaintiff’s claims against Textron fail as a matter of well-settled law and his inability to produce any evidence to suggest he was exposed to a Textron asbestos-containing product. Because Plaintiff’s claims fail, his wife’s claim for loss of consortium also necessarily fails. LeFiell Mfg Co. v. Superior Court, 55 Cal.4th 275, 284 (Cal. 2012) (“As a factual matter, spouse’s claim for loss of consortium is unquestionably derivative of, and dependent on, employee’s industrial injuries.”). The Court should, as a result, grant summary judgment in favor of Textron on Mrs. DeCastro’s claim. CONCLUSION Wherefore, Textron, Inc. respectfully requests that the Court grant its motion for summary judgment and dismiss the claims against it with prejudice. McCARTER & ENGLISH, LLP /s/ Matthew J. Rifino___________ James J. Freebery (DE Bar# 3498) Matthew Rifino (DE Bar# 4749) 405 N. King Street, 8 th Floor Wilmington, DE 19801 (302) 984-6306 (telephone) jfreebery@mccarter.com mrifino@mccarter.com Dated: May 18, 2017 Attorneys for Defendant Textron, Inc. Case 1:16-cv-00951-SLR-SRF Document 70 Filed 05/18/17 Page 10 of 10 PageID #: 427 EXHIBIT A Case 1:16-cv-00951-SLR-SRF Document 70-1 Filed 05/18/17 Page 1 of 4 PageID #: 428 EXHIBIT A Case 1:16-cv-00951-SLR-SRF Document 70-1 Filed 05/18/17 Page 2 of 4 PageID #: 429 Case 1:16-cv-00951-SLR-SRF Document 70-1 Filed 05/18/17 Page 3 of 4 PageID #: 430 Case 1:16-cv-00951-SLR-SRF Document 70-1 Filed 05/18/17 Page 4 of 4 PageID #: 431 EXHIBIT B Case 1:16-cv-00951-SLR-SRF Document 70-2 Filed 05/18/17 Page 1 of 14 PageID #: 432 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X IN RE: ASBESTOS LITIGATION JOHN DECASTRO, and VICKI DECASTRO, his wife, Plaintiffs, v. BORGWARNER MORSE TEC LLC; CURTISS-WRIGHT CORPORATION; FEDERAL-MOGUL ASBESTOS PERSONAL INJURY TRUST, as a successor to FELT PRODUCTS MFG. CO.; FORD MOTOR COMPANY; GENERAL ELECTRIC COMPANY; HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC., as successor in interest to THE BENDIX CORPORATION; PFIZER, INC.; TEXTRON, INC., individually, and as successor in interest to CESSNA AIRCRAFT COMPANY and BEECH HOLDINGS; THE GOODYEAR TIRE AND RUBBER COMPANY UNION CARBIDE CORPORATION; UNITED TECHNOLOGIES CORPORATION, individually, and as successor to UNITED TECHNOLOGIES PRATT & WHITNEY AIRCRAFT DIVISION, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X C.A. No. 1:16-cv-00951-SLR-SRF SECOND AMENDED COMPLAINT JURY TRIAL DEMANDED Case 1:16-cv-00951-SLR-SRF Document 56-1 Filed 04/10/17 Page 1 of 13 PageID #: 335 EXHIBIT B 70 2 5 8 2 4 4 3 2 SECOND AMENDED COMPLAINT COMES NOW Plaintiffs, JOHN DECASTRO and VICKI DECASTRO, by and through their attorneys, DALTON & ASSOCIATES, P.A., BALICK & BALICK, LLC and WEITZ & LUXENBERG, P.C., and in support of their claims against the Defendants, state as follows: FACTS 1. Plaintiff JOHN DECASTRO was born on November 2, 1930. Plaintiff VICKI DECASTRO was born on November 2, 1930. 2. Plaintiffs JOHN DECASTRO and VICKI DECASTRO have resided at 4705 Acacia Way, Penngrove, CA 94951 since approximately 1989. Plaintiff JOHN DECASTRO’s former residences include, but are not limited to, the following: a. 306 Lance Drive, Vacaville, CA, from approximately 1968 to 1989; b. 11 Grande Vista, Novato, CA, from approximately 1957 to 1968; c. 1482 43rd Avenue, San Francisco, CA, from approximately 1938 to 1950; and d. 149 Pope Street, San Francisco, CA, from 1930 to approximately 1938. 3. Plaintiff JOHN DECASTRO’s former employers include, but are not limited to, the following: a. Pacific Bell Telephone, in San Francisco, CA, as a Frameman, from approximately 1948 to 1950; b. United States Air Force, at Lackland Air Force Base, TX; Wichita Falls Air Force Base, TX; Williams Air Force Base, AZ; Laredo Air Force Base, TX; Hamilton Air Force Base, CA; Travis Air Force Base, CA; and Sheppard Air Force Base, TX, as an Aircraft Mechanic, from approximately 1950 to 1990; and Case 1:16-cv-00951-SLR-SRF Document 56-1 Filed 04/10/17 Page 2 of 13 PageID #: 33670 2 5 8 3 4 4 4 3 c. United Airlines, at the San Francisco International Airport in San Francisco, CA, as a Painter and Hydraulic Specialist, from approximately 1985 to 1996. 4. During the above employment, Plaintiff JOHN DECASTRO was wrongfully exposed to, inhaled, ingested, and otherwise absorbed asbestos fibers emanating from various sources which were mixed, mined, manufactured, distributed, sold, removed, installed, and/or used by the Defendants including, but not limited to: aircraft brakes, engines, and gaskets. 5. Plaintiff JOHN DECASTRO was exposed to asbestos as a result of the installation, use, maintenance, servicing, and/or removal of the Defendants’ products as noted in this Second Amended Complaint which resulted in the exposure to the asbestos even if the asbestos fibers were not mined, manufactured, sold, or distributed by the Defendants. 6. Plaintiff JOHN DECASTRO was exposed to asbestos during non-occupational projects, including, but not limited to, working on personal vehicles, as well as vehicles of family members and friends, and performing maintenance work on personal aircraft. Plaintiff JOHN DECASTRO was exposed to asbestos-containing products including, but not limited to, automobile brakes, brake linings, clutches, and gaskets, and aircraft brakes and gaskets. 7. Plaintiff JOHN DECASTRO may have also been exposed to asbestos in such a manner that further investigation and/or discovery may uncover. 8. Defendants herein are incorporated as follows: Defendant BORGWARNER MORSE TEC LLC is a Delaware Limited Liability Company whose registered agent for service of process is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. Defendant CURTISS-WRIGHT CORPORATION is a Delaware Corporation whose registered agent for service of process is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. Defendant FEDERAL- MOGUL ASBESTOS PERSONAL INJURY TRUST, as a successor to FELT PRODUCTS MFG. CO. is a Delaware Statutory Trust whose Case 1:16-cv-00951-SLR-SRF Document 56-1 Filed 04/10/17 Page 3 of 13 PageID #: 33770 2 5 8 4 4 4 5 4 registered agent for service of process is Wilmington Trust SP Services, Inc., 1105 N. Market Street, Suite 1300, Wilmington, DE 19801. Defendant FORD MOTOR COMPANY is a Delaware Corporation whose registered agent for service of process is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. Defendant GENERAL ELECTRIC COMPANY is a foreign business entity doing business in the State of Delaware whose registered agent for service of process is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. Defendant HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC., as successor in interest to THE BENDIX CORPORATION, is a Delaware Corporation whose registered agent for service of process is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808. Defendant PFIZER, INC., is a Delaware Corporation whose registered agent for service of process is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. Defendant TEXTRON, INC., individually, and as successor in interest to CESSNA AIRCRAFT COMPANY and BEECH HOLDINGS, is a Delaware Corporation whose registered agent for service of process is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. Defendant THE GOODYEAR TIRE AND RUBBER COMPANY is a foreign business entity doing business in the State of Delaware whose registered agent for service of process is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808. Defendant UNION CARBIDE CORPORATION is a foreign business entity doing business in the State of Delaware whose registered agent for service of process is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. Defendant UNITED TECHNOLOGIES CORPORATION, individually, and as successor to UNITED TECHNOLOGIES PRATT & WHITNEY AIRCRAFT DIVISION is a Delaware Corporation whose registered agent for service of process is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. 9. All Defendants herein were at all times pertinent, directly or indirectly engaged in the specification, mining, manufacturing, distribution, sales, licensing, leasing, installation, Case 1:16-cv-00951-SLR-SRF Document 56-1 Filed 04/10/17 Page 4 of 13 PageID #: 33870 2 5 8 5 4 4 6 5 removal, or use of asbestos and asbestos-containing products. 1 F Defendants were also engaged in the development, manufacture, distribution, sales, licensing or leasing of equipment, procedures, or technology necessary to mine, manufacture, sell, distribute, install, remove, and use asbestos and asbestos-containing products. 10. Plaintiff JOHN DECASTRO was wrongfully exposed to and inhaled, ingested, or otherwise absorbed asbestos fibers, an inherently dangerous toxic substance emanating from certain products he was working with and/or around which were manufactured, sold, distributed, or installed by the Defendants: BORGWARNER MORSE TEC LLC; CURTISS-WRIGHT CORPORATION; FEDERAL-MOGUL ASBESTOS PERSONAL INJURY TRUST, as a successor to FELT PRODUCTS MFG. CO.; FORD MOTOR COMPANY; GENERAL ELECTRIC COMPANY; HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC., as successor in interest to THE BENDIX CORPORATION; PFIZER, INC.; TEXTRON, INC., individually, and as successor in interest to CESSNA AIRCRAFT COMPANY and BEECH HOLDINGS; THE GOODYEAR TIRE AND RUBBER COMPANY; UNION CARBIDE CORPORATION; UNITED TECHNOLOGIES CORPORATION, individually, and as successor to UNITED TECHNOLOGIES PRATT & WHITNEY AIRCRAFT DIVISION (collectively referred to herein as “Defendants”). 11. At all times herein set forth, the Defendants’ products were being employed in the manner and for the purposes for which they were intended. 12. Plaintiff JOHN DECASTRO’s exposure to and inhalation, ingestion, or absorption of asbestos fibers emanating from the use of the above-mentioned products was completely foreseeable and could or should have been anticipated by the Defendants. 1 Throughout this Second Amended Complaint, Plaintiffs’ references to “asbestos-containing products” include asbestos, asbestos-containing products, products designed to be used with asbestos-containing products, and/or products that it was foreseeable would be used with asbestos-containing products. Case 1:16-cv-00951-SLR-SRF Document 56-1 Filed 04/10/17 Page 5 of 13 PageID #: 33970 2 5 8 6 4 4 7 6 13. The Defendants knew or should have known that the asbestos fibers contained in their products had a toxic, poisonous, and highly deleterious effect upon the health of persons inhaling, ingesting, or otherwise absorbing them. 14. As a result of the Defendants’ wrongful conduct, Plaintiff JOHN DECASTRO suffers from an asbestos-related disease including, but not limited to, Lung Cancer. Plaintiff JOHN DECASTRO first became aware that he suffered from said disease in or around March 2015, and, subsequently thereto, became aware that the same was wrongfully caused. As a result of developing Lung Cancer, Plaintiff JOHN DECASTRO has endured, and continues to endure, great physical pain and suffering, mental anguish, emotional pain and suffering, and loss of enjoyment of life. Further, as a result of Defendants’ wrongful conduct, Plaintiff JOHN DECASTRO is required to receive, and does receive, medical treatment to mitigate his asbestos related disease, thus incurring reasonable and necessary costs for medical care, diagnosis, and treatment. COUNT I NEGLIGENCE AS TO MANUFACTURERS, SELLERS, DISTRIBUTORS AND INSTALLERS OF ASBESTOS-CONTAINING PRODUCTS 15. The allegations in paragraphs one (1) through fourteen (14) above are realleged and incorporated by reference within this Count. Plaintiffs JOHN DECASTRO and VICKI DECASTRO’s recovery herein is predicated upon the substantive law of the State of Texas, or such law as the Court holds applicable. 16. At all relevant times herein, the Defendants had a duty to exercise reasonable care and caution for the safety of Plaintiff JOHN DECASTRO and others working with and around the Defendants’ asbestos-containing products. Case 1:16-cv-00951-SLR-SRF Document 56-1 Filed 04/10/17 Page 6 of 13 PageID #: 34070 2 5 8 7 4 438 7 17. The Defendants knew or should have known that the asbestos fibers contained in their products had a toxic, poisonous, and highly deleterious effect upon the health of persons inhaling, ingesting, or otherwise absorbing them. 18. The Defendants were negligent in that they failed to exercise ordinary care and caution for the safety of Plaintiff JOHN DECASTRO in one or more of the following respects: a. Included asbestos in their products even though it was completely foreseeable and could or should have been anticipated that persons such as Plaintiff JOHN DECASTRO working with and around them would inhale, ingest, or otherwise absorb asbestos; b. Included asbestos in their products when the Defendants knew or should have known that said asbestos would have a toxic, poisonous, and highly deleterious effect upon the health of persons inhaling, ingesting, or otherwise absorbing them; c. Failed to substitute, suggest, promote, or require the substitution of materials other than asbestos in their products when adequate substitutes for the asbestos in those products were available; d. Failed to provide any warning or adequately warn persons working with and around the products of the dangers of inhaling, ingesting, or otherwise absorbing the asbestos fibers contained in them; e. Failed to provide any or adequate instructions concerning the safe methods of working with and around the products, including specific instructions on how to avoid inhaling, ingesting, or otherwise absorbing the asbestos fibers in them; f. Failed to conduct tests on the asbestos-containing products manufactured, sold, delivered, or installed by the Defendants in order to determine the hazards to which persons such as Plaintiff JOHN DECASTRO might be exposed while working with or around the products; and g. Designed, manufactured and sold equipment, vehicles, machinery, technologies and systems that included asbestos-containing components and required and/or specified the use of asbestos-containing replacement components. 19. As a direct and proximate result of one or more of the foregoing negligent acts and/or omissions on the part of the Defendants, Plaintiff JOHN DECASTRO was exposed to and Case 1:16-cv-00951-SLR-SRF Document 56-1 Filed 04/10/17 Page 7 of 13 PageID #: 34170 2 5 8 8 4 439 8 inhaled, ingested, or otherwise absorbed asbestos fibers, causing Plaintiff JOHN DECASTRO to develop the asbestos disease aforesaid, which disabled and disfigured Plaintiff JOHN DECASTRO. Plaintiff JOHN DECASTRO has in the past and will in the future be compelled to expend and become liable for large sums of money for hospital, medical, and other health care services necessary for the treatment of his asbestos-induced disease and conditions. Plaintiff JOHN DECASTRO has in the past and will in the future experience great physical pain and mental anguish as a result of his asbestos-induced disease and conditions. Plaintiff JOHN DECASTRO has been hindered and prevented from pursuing his normal course of living, thereby losing large sums of income which otherwise would have accrued to him. COUNT II WILLFUL AND WANTON CONDUCT AS TO MANUFACTURERS, SELLERS, DISTRIBUTORS AND INSTALLERS OF ASBESTOS-CONTAINING PRODUCTS 20. The allegations in paragraphs one (1) through nineteen (19) above are realleged and incorporated by reference within this Count. 21. The Defendants had a duty to refrain from willful and wanton acts or omissions which would harm Plaintiff JOHN DECASTRO. 22. Defendants named herein willfully and wantonly, for their own economic gain and with reckless indifference to the health and safety of Plaintiff JOHN DECASTRO, as well as others similarly situated, are guilty of one or more of the following acts or omissions amounting to willful and wanton misconduct: a. Intentionally or with reckless disregard for the safety of Plaintiff JOHN DECASTRO, included asbestos in their products, even though it was completely foreseeable and could or should have been anticipated that persons such as Plaintiff JOHN DECASTRO working with or around them, would inhale, ingest, or otherwise absorb asbestos; Case 1:16-cv-00951-SLR-SRF Document 56-1 Filed 04/10/17 Page 8 of 13 PageID #: 34270 2 5 8 9 4 4 0 9 b. Intentionally or with reckless disregard for the safety of Plaintiff JOHN DECASTRO, included asbestos in their products when the Defendants knew or should have known that said asbestos fibers would have a toxic, poisonous, and highly deleterious effect upon the health of persons inhaling, ingesting, or otherwise absorbing them; c. Intentionally or with reckless disregard for the safety of Plaintiff JOHN DECASTRO, included asbestos in their products when adequate substitutes for the asbestos in them was available; d. Intentionally or with reckless disregard for the safety of Plaintiff JOHN DECASTRO, failed to provide any or adequate warnings to persons working with and around their products of the dangers of inhaling, ingesting, or otherwise absorbing asbestos fibers in them; e. Intentionally or with reckless disregard for the safety of Plaintiff JOHN DECASTRO, failed to provide any or adequate instructions concerning the safe methods of working with and around their products, including specific instructions on how to avoid inhaling, ingesting, or otherwise absorbing the asbestos fibers in them; f. Intentionally or with reckless disregard for the safety of Plaintiff JOHN DECASTRO, failed to conduct tests on the asbestos-containing products manufactured, sold, delivered, or installed by the Defendants in order to determine the hazards to which persons such as Plaintiff JOHN DECASTRO might be exposed while working with and around the products; g. Intentionally or with reckless disregard for the safety of Plaintiff JOHN DECASTRO, failed to adequately label, warn, package, market, distribute, install, remove, or use asbestos in a reasonable manner which would minimize or eliminate the escape of asbestos dust fibers, therefore adding to the exposure of Plaintiff JOHN DECASTRO and others similarly situated; h. Intentionally or with reckless disregard for the safety of Plaintiff JOHN DECASTRO, failed to take adequate steps to remedy the above failures, including, but not limited to, (1) failure to recall or require removal of asbestos and asbestos-containing products, coupled with (2) ongoing failure to conduct research as to how to cure or minimize asbestos injuries and how to use, install, or distribute asbestos so as to render it safe, and (3) failure to promptly and safely remove the asbestos now in place; and i. Intentionally or with reckless disregard for the safety of Plaintiff JOHN DECASTRO, designed, manufactured, and sold equipment, vehicles, Case 1:16-cv-00951-SLR-SRF Document 56-1 Filed 04/10/17 Page 9 of 13 PageID #: 343Case 1:16-cv-00951-SLR-SRF Docu ent 70-2 Filed 05/18/17 Page 10 of 14 PageID #: 441 10 machinery, technologies, and systems that included asbestos-containing components and required and/or specified the use of asbestos-containing replacement components. 23. As a direct and proximate result of one or more of the foregoing willful, wanton, intentional, and/or reckless acts and/or omissions of Defendants, Plaintiff JOHN DECASTRO was exposed to and inhaled, ingested, or otherwise absorbed asbestos fibers, causing Plaintiff JOHN DECASTRO to develop the asbestos disease aforesaid, which disabled and disfigured Plaintiff JOHN DECASTRO. Plaintiff JOHN DECASTRO has in the past and will in the future be compelled to expend and become liable for large sums of money for hospital, medical, and other health care services necessary for the treatment of his asbestos-induced disease and conditions. Plaintiff JOHN DECASTRO has in the past and will in the future experience great physical pain and mental anguish as a result of his asbestos-induced disease and conditions. Plaintiff JOHN DECASTRO has been hindered and prevented from pursuing his normal course of living, thereby losing large sums of income which otherwise would have accrued to him. 24. In addition to compensatory damages, an award of punitive damages is appropriate and necessary in order to punish the Defendants for their willful, wanton, intentional, and/or reckless misconduct and to deter each Defendant and others similarly situated from engaging in like misconduct in the future. COUNT III STRICT PRODUCT LIABILITY 25. The allegations in paragraphs one (1) through twenty-four (24) above are realleged and incorporated by reference within this Count. Case 1:16-cv-00951-SLR-SRF Document 56-1 Filed 04/10/17 Page 10 of 13 PageID #: 34470 2 5 8 1 4 4 2 11 26. At the time each and all Defendants used, installed, manufactured, sold, and distributed the asbestos-containing products to which Plaintiff JOHN DECASTRO was exposed, said products were in a defective condition and were unreasonably dangerous in that: a. Said products contained friable asbestos fibers as a constituent substance; b. Said asbestos fibers were highly toxic, deleterious, poisonous, and harmful to the health of JOHN DECASTRO and others similarly situated; and c. Said products were not accompanied by any warning/instructions or by adequate warning and/or instructions advising of the danger of exposure to asbestos or of precautions to be employed in the use of asbestos- containing products. 27. The Defendants placed their asbestos and asbestos-containing products on the market and knew or should have known they would be used without inspection for defects. 28. At all times relevant hereto, said products were used in the manner and environment intended, and in a manner reasonably foreseeable and anticipated by each of the Defendants. 29. When their asbestos and asbestos-containing products left the Defendants’ possession and were placed on the market they were defective in that, when used in the intended or reasonably foreseeable manner, they were not reasonably safe for their intended use, they failed to perform as safely as would be expected by an ordinary user or consumer, and/or created a risk of harm beyond that which would be contemplated by the ordinary user or consumer. 30. Asbestos and asbestos-containing products are inherently dangerous, and, as such, the Defendants are strictly liable to Plaintiff JOHN DECASTRO for all injuries and damages which were contracted as a direct and proximate result of his exposure from said products. 31. As a direct and proximate result of one or more of the foregoing acts and/or omissions on the part of the Defendants, Plaintiff JOHN DECASTRO was exposed to and Case 1:16-cv-00951-SLR-SRF Document 56-1 Filed 04/10/17 Page 11 of 13 PageID #: 34570 2 5 8 2 4 4 3 12 inhaled, ingested, or otherwise absorbed asbestos fibers, causing Plaintiff JOHN DECASTRO to develop the asbestos disease aforesaid, which disabled and disfigured Plaintiff JOHN DECASTRO. Plaintiff JOHN DECASTRO has in the past and will in the future be compelled to expend and become liable for large sums of money for hospital, medical, and other health care services necessary for the treatment of his asbestos-induced disease and conditions. Plaintiff JOHN DECASTRO has in the past and will in the future experience great physical pain and mental anguish as a result of his asbestos-induced disease and conditions. Plaintiff JOHN DECASTRO has been hindered and prevented from pursuing his normal course of living, thereby losing large sums of income which otherwise would have accrued to him. COUNT IV LOSS OF CONSORTIUM 32. The allegations in paragraphs one (1) through thirty-one (31) above are realleged and incorporated by reference within this Count. 33. Plaintiff JOHN DECASTRO is married to Plaintiff VICKI DECASTRO. As a result of the Defendants’ wrongful conduct which caused her husband's above stated asbestos- related disease and problems, Plaintiff VICKI DECASTRO has suffered, and will continue in the future to suffer, a loss of the support, consortium, and society of her husband, together with related mental anguish and pain and suffering. WHEREFORE Plaintiffs JOHN DECASTRO and VICKI DECASTRO pray this Honorable Court to enter judgment against the Defendants and to award: compensatory damages in an amount to be proved at trial, but believed to exceed $100,000; and punitive damages in an amount sufficient to punish the Defendants for their misconduct and to deter similarly situated Case 1:16-cv-00951-SLR-SRF Document 56-1 Filed 04/10/17 Page 12 of 13 PageID #: 34670 2 5 8 3 4 4 4 13 parties from committing like acts of misconduct in the future; and such other and further relief that this Court deems appropriate. Respectfully submitted, DALTON & ASSOCIATES, P.A. /s/ Ipek K. Medford Bartholomew J. Dalton, Esq.(ID 808) Ipek K. Medford, Esq. (ID 4110) Andrew C. Dalton, Esq. (ID 5878) Cool Spring Meeting House 1106 West Tenth Street Wilmington, DE 19806 (302) 652-2050 IMedford@BDaltonlaw.com Attorneys for Plaintiff BALICK & BALICK, LLC /s/ Adam Balick Adam Balick, Esq. (ID 2718) Michael Collins Smith, Esq. (ID 5997) 711 North King Street Wilmington, DE 19801 (302) 658-4265 abalick@balick.com Attorneys for Plaintiff OF COUNSEL: WEITZ & LUXENBERG, P.C. 700 Broadway New York, NY 10003 (212) 558-5500 Dated: April 10, 2017 Case 1:16-cv-00951-SLR-SRF Document 56-1 Filed 04/10/17 Page 13 of 13 PageID #: 34770 2 5 8 4 4 4 5 EXHIBIT C Case 1:16-cv-00951-SLR-SRF Document 70-3 Filed 05/18/17 Page 1 of 5 PageID #: 446 EXHIBIT C Case 1:16-cv-00951-SLR-SRF Document 70-3 Filed 05/18/17 Page 2 of 5 PageID #: 447 Case 1:16-cv-00951-SLR-SRF Document 70-3 Filed 05/18/17 Page 3 of 5 PageID #: 448 Case 1:16-cv-00951-SLR-SRF Document 70-3 Filed 05/18/17 Page 4 of 5 PageID #: 449 Case 1:16-cv-00951-SLR-SRF Document 70-3 Filed 05/18/17 Page 5 of 5 PageID #: 450