Case 2:17-cv-00977-ER Document 154 Filed 04/02/19 Page 1 of 5

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE: ASBESTOS PRODUCTS Consolidated Under

LIABILITY LITIGATION (No. VI) MDL DOCKET NO. 875

~EON BOLICK, et al. Case No. 17-977

v.

CBS CORPORATION, et al.

0 R D E R

AND NOW, this 1st day of April, 2019, upon

consideration of the motion for summary judgment filed by Boein

Company (ECF No. 141) and the response and reply thereto (ECF

Nos. 147 & 153), it is hereby ORDERED that the motion is

GRANTED. 1

Leon Bolick worked for the United States Air Force

from 1959 to 1968 at five air bases. He repaired instrument
gauges in various aircraft, including nine types of craft
manufactured by Boeing. Bolick contracted mesothelioma which he
contends arose from exposure to asbestos-containing products
during his time in the Air Force. Bolick sued a number of
Defendants that built the aircraft or whose components were used
in the aircraft. Bolick asserts that the aircraft and components
contained asbestos, exposure to which caused his disease. Bolick

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raises claims of negligence, strict liability, conspiracy, and
breach of warranty.

Boeing is the only remaining defendant in the case.

Boeing asserts i~ its motion that summary judgment is
appropriate because: (1) there is no evidence Bolick encountere
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asbestos for which 1t is responsible; (2) Boeing is protected by
derivative sovereign immunity; and (3) Boeing is protected by
the government contractor defense .

. The Court addresses only the first argument because it

1s dispoJitive. Viewing the facts in the light most favorable jo
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 Case 2:17-cv-00977-ER Document 154 Filed 04/02/19 Page 2 of 5

Plaintiff, but without resorting to speculation, no reasonable

jury could find in Bolick's favor as there is no evidence that
the components at issue actually contained asbestos. As a
result, summary judgment in favor of Boeing is warranted.

I. STANDARD

Summary judgment is appropriate if there is no genuine

dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A motion
for summary judgment will not be defeated by 'the mere
existence' of some disputed facts, but will be denied when there
is a genuine issue of material fact." Arn. _Eag!~_ Outfitte_!"~·-
;_,yle_&_ Scott Ltd., 584 F. 3d 575, 581 (3d Cir. 2009) (quoting
~derson v. Lib~~Lobby, Inc., 477 U.S. 242, 247 (1986)). A
fact is "material" if proof of its existence or nonexistence
might affect the outcome of the litigation, and a dispute is
"genuine" if "the evidence is such that a reasonable jury could /
return a verdict for the nonrnoving party." ~nderson, 477 U.S. at
248.
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The Court views the facts in the light most favorable
to the nonrnoving party. "After making all reasonable inferences
in the nonrnoving party's favor, there is a genuine issue of
material fact if a reasonable jury could find for the nonrnoving I
party." Pignataro v.:.. Port Auth. of N.Y. and N.J., 593 F.3d 265,j
268 (3d Cir. 2010). While the moving party bears the initial
burden of showing the absence of a genuine issue of material
fact, meeting this obligation shifts the burden to the nonrnovin
party who must "set forth specific facts showing that there is~
genuine issue for trial." An_9.ers<2~, 477 U.S. at 250 (citing Fed.
R. Civ. P. 56).

When defending against a motion for summary judgment,

"the nonrnoving party must affirmatively 'show where in the
record there exists a genuine dispute over a material fact.'"
Wharton v. Danber_g:, 854 F.3d 234, 244 (3d Cir. 2017) (quoting
Doe v. Abington_Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007))
"[S]peculation and conjecture may not defeat a motion for
summary judgment." Acurned LLC v. Advanced Surgical Servs., _Inc._
561 F.3d 199, 228 (3d Cir. 2009) (citing Lexing_ton Ins._ Co. v.
w_._Pe~nsylvani_a HO§£:., 423 F.3d 318, 332-33 (3d Cir. 2005)).

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II. EXPOSURE FACTS

Bolick proffers three circumstances in which he claims

to have encountered asbestos in Boeing aircraft.

First, Bolick regularly removed woven cloth-like

insulation tape from wiring bundles inside the aircraft and then
re-taped them once any repairs were made. Bolick did not know
what the tape was made of, or the manufacturer of the tape he
removed. He thought the manufacturer of the replacement tape was
"Arco" or "Narco." The process of removing and replacing the
tape stirred up dust, which he breathed in, but Bolick's
testimony is unclear whether the dust came from the tape or
elsewhere.

Second, Bolick regularly removed and reinstalled

insulation matting that buttoned onto the inside skin of the
aircraft so that he could reach the wiring bundles. Again,
Bolick did not know the composition of the matting or its
manufacturer. Bolick testified that removing and replacing the
matting also created dust which he inhaled.

Third, while performing his duties, Bolick witnessed

other employees performing maintenance tasks, including
repairing brakes and changing tires on the aircraft, which
created dust that he inhaled. Bolick did not know the
manufacturer of any parts utilized by these other employees or
the specifics of the tasks they were performing.

III. DISCUSSION

The parties have agreed that the applicable law is

that of Pennsylvania. Therefore, this Court will apply
Pennsylvania law in deciding the motion. §ee ~rie R.R. Co. v._
!ompkins, 304 U.S. 64 (1938); ~ee al~o Guaranty Trust_i;~·~'!_:_
York, 326 U.S. 99 (1945).

As a threshold requirement for liability based on

asbestos exposure, a plaintiff must establish that he or she
inhaled asbestos fibers shed from a product for which the
defendant is responsible. Rotondo v. Keene Cor12...:.., 956 F.2d 436,
439 (3d Cir. 1992) (citing Eckenrod_ v. GAF Cor_E__:_, 544 A.2d 50,
52 (Pa. Super. 1988)). That requirement is not met here.

Bolick relies on only one document to argue that any

of the three circumstances described above exposed him to

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asbestos: Federal Specification SS-C-466, "CLOTH, YARN, THREAD,

AND TAPE; ASBESTOS," dated December 1940. This document
identifies government specifications for various asbestos
textiles and tapes, including their required percentage of
asbestos.

Bolick provides no evidence or testimony that this

Specification was applicable or relevant to the components
described above. Bolick merely speculates that the tape and
matting were required to and, in fact did, meet this
Specification. Bolick likewise provides no evidence regarding
the makeup of "Arco" or "Narco" tape and submits no co-worker ori
expert testimony concerning the brand or composition of any of
the relevant aircraft parts.

Instead, Bolick's response brief weaves together

arguments from inaccuracies. The brief asserts that Bolick's
testimony establishes that, "[i]n troubleshooting the electrical
equipment on these aircraft, Mr. Bolick worked with asbestos
insulating tape and asbestos matting throughout the planes."
Resp. Br. at 13; see also id. at 11 ("Mr. Bolick's deposition
clearly establishes that he worked with asbestos-containing
parts on Boeing aircraft on a regular frequent, and proximate
basis in the Air Force."). However, Bolick testified that he di
not know the composition of these materials.

Similarly, the brief provides that the Federal

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Specification described above "shows that the tape and matting

insulation that Mr. Bolick worked on contained asbestos
throughout his stint in the Air Force," and that "[i]t was this
cloth and tape that Mr. Bolick would have worked on throughout
the various Boeing aircraft." ~9..:... at 14. As explained, these are
bald conclusions based on speculation.

Finally, the brief asserts that "Dr. Daniel C. DuPont;

will testify that Mr. Bolick's exposure to asbestos from
insulation tape and matting insulation on Boeing aircraft,
specifically, was a distinct factual cause of Mr. Bolick's
disease." Id._ at 11. However, Dr. DuPont's expert report does
not support this proposition. The report does not indicate that
Dr. DuPont had any knowledge regarding the asbestos content of
the specific tape and matting at issue. Dr. DuPont's conclusion
is that Bolick's mesothelioma was caused by occupational
asbestos exposure that he was told occurred while Bolick worked
in the Air Force.

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In that the parties have indicated that Boeing is the

last Defendant in the case (ECF No. 152), it is hereby further

ORDERED that: (1) all Defendants not previously term~nated shall

be terminated on the docket; and (2) the Clerk of Court is

directed to mark this case as CLOSED.

AND IT IS SO ORDERED.

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EDUARDO C. ROBRENO, J.

One could speculate that one or more of these

components contair.ed asbestos during the relevant time period.
However, speculation is not sufficient to overcome summary
judgment, and there is no other evidence in the record to create
a genuine dispute regarding their asbestos content. ~cumed LLC,
561 F.3d at 228. As a result, the Court grants summary judgment
in favor of Boeing and against Bolick.