Paul Olds v. 3M Company, No. 2:2012cv08539 - Document 299 (C.D. Cal. 2013)
Court Description: ORDER GRANTING LOCKHEED MARTIN CORPORATIONS MOTION FOR SUMMARY JUDGMENT AND STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW signed by Judge Manuel L. Real. (pj)
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Paul Olds v. 3M Company Doc. 299 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 CASE NO. CV-12-08539 R (MRWx) PAUL OLDS, 11 Plaintiff, 12 13 14 15 16 Hon. Manuel L. Real Courtroom: 8 v. 3M COMPANY a/k/a MINNESOTA MINING AND MANUFACTURING COMPANY, et al. Defendants. ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT AND STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 17 18 19 20 21 22 23 24 25 26 27 Defendant Lockheed Martin Corporation’s Motion for Summary Judgment (“the Motion”) came on regularly for hearing on August 19, 2013, before the Honorable Manuel L. Real, presiding in Department 8 of the United States District Court for the Central District of California. All appearances are as reflected in the record. The Court, having read and considered all papers filed in support of and in opposition to the Motion, all admissible evidence filed in support of and in opposition to the Motion, and argument of counsel, IT IS HEREBY ORDERED THAT the 28 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW Dockets.Justia.com 1 Motion is GRANTED and that judgment be entered in favor of Lockheed Martin 2 Corporation. 3 The Court’s ruling granting Lockheed Martin Corporation’s Motion for 4 Summary Judgment is based on the findings of uncontroverted facts and conclusions 5 of law set forth below, and as stated on the record at the August 19, 2013 hearing on 6 the Motion for Summary Judgment. UNCONTROVERTED FACTS 7 8 9 ISSUE: All of Plaintiff's causes of action against Lockheed Martin (negligence, strict products liability, and breach of warranty) fail for lack of causation because 10 Plaintiff has no evidence that he was exposed to any asbestos-containing products for 11 which Lockheed Martin is responsible. 12 13 14 MATERIAL FACTS: 1. Paul Olds ("Plaintiff") sues SUPPORTING EVIDENCE: Plaintiff's Complaint [Docket No. 1], 15 approximately forty-five defendants, excerpts attached as Exhibit 1 to 16 including Lockheed Martin, for Declaration of Deborah M. Parker 17 damages related to his alleged (“Parker Decl.”) at pp. 5:14-8:23 and 18 asbestos exposure. 11:4-16:20. 19 20 21 2. Plaintiff alleges that he was exposed Plaintiff’s Complaint [Docket No. 1], 22 to asbestos while serving in the excerpts attached as Exhibit 1 to Parker 23 United States Air Force ("USAF") Decl. at p. 9:21-22. 24 from 1948 to 1968. 25 3. As to Lockheed Martin, Plaintiff Plaintiff’s Complaint [Docket No. 1], 26 alleges that, during his USAF excerpts attached as Exhibit 1 to Parker 27 service, he worked “with and around Decl. at p. 10:4-6. 28 asbestos-containing Lockheed 2 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 aircraft engines, including, but not 2 limited to, the Lockheed F-80 3 engines, for which plaintiff contends 4 Lockheed Martin Corporation is now 5 6 legally responsible." 4. Plaintiff's deposition occurred on 7 January 15 through January 18, attached as Exhibit 2 to Parker Decl. 2013. 8 (“Plaintiff's Depo.”) at pp. 18-19:18-19; 9 24-25:18-19; 63-64:18-19; and 66- 10 11 Deposition of Paul Olds, excerpts 67:18-19. 5. Plaintiff worked on only one aircraft 12 type manufactured by Lockheed 13 Declaration of Valentino Jimenez ("Jimenez Decl."), at ¶ 22. Martin: the F-80 Shooting Star. 14 F-80 SHOOTING STAR MILITARY AIRCRAFT 15 16 Plaintiff testified that, while Plaintiff's Depo., Vol. II at 26:14-27:1; stationed at Williams Air Field 27:10-15. from November of 1948 through 6. Q. Okay. Sir, am I correct that the next Air Force base that you were assigned to was Williams Field in Arizona? A. Correct. Q. And you believe that you arrived there in approximately October 1948? A. Probably November. I took a leave. Q. So your best estimate is November 1948? A. Right. Q. Yesterday you indicated that you believed you left there in August 1950. Does that still sound 3 17 18 19 August of 1950, he worked on F20 80A, F-80B, and F-80C aircraft 21 (hereinafter, "F-80"). 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 accurate? A. Correct. 3 (Id. at 26:14-27:1.) 4 Q. 5 6 A. Q. A. 7 8 9 10 11 ***** Do you recall the model or model number of any of the aircraft that you performed hands-on work to? Yes. Could you please tell me. F-80A, -B, and –C, all three of them. (Id. at 26:10-15.) Plaintiff testified that all F-80 Plaintiff's Depo., Vol. II at 29:15-17. 12 aircraft he encountered were 13 Military aircraft. Q. Would you agree with me that an F80 aircraft is a military aircraft? A. Yes. Plaintiff testified that he does not Plaintiff's Depo., Vol. II at 27:23-28:5. 7. 14 15 8. know how many F-80 aircraft were 16 present at Williams Field. 17 18 19 20 21 22 9. Plaintiff testified that he does not 23 know the construction serial 24 number, Military serial number, or 25 tail number of any F-80 aircraft 26 that was present at Williams Field. 27 28 Q. With respect to the F-80As that were present at Williams Field, how many were there, if you know? A. I have no idea. Q. Okay. Is it also fair to say you don’t know how many F-80Bs or F80Cs were at Williams Field? A. You’re correct. Plaintiff's Depo., Vol. II at 28:11-19. Q. Do you know the construction serial number of any of those aircraft? A. No. Q. Do you know the military serial number of any of those aircraft? A. No. Q. Do you know the tail number of any of those military F-80s? 4 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 A. No. 10. Plaintiff testified that, with respect 3 to all of the F-80 aircraft he 4 Plaintiff's Depo., Vol. II at 30:4-10. encountered, he does not know the 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q. You would agree with me that with respect to all the F-80s that you encountered, you do not know the maintenance history of any of maintenance history of that aircraft those aircraft prior to encountering prior to your encountering it – A. No. them. Q. -- true? A. You’re correct. 11. Plaintiff testified that he has no Plaintiff's Depo., Vol. II at 30:20-24. information or knowledge that any Q. Okay. So that is fair to say that you of the F-80 aircraft or F-80 aircraft do not have any information or knowledge as to whether any of the components were original factory F-80s or their parts were original installed equipment. factory-installed equipment; true? A. You’re correct. I have no knowledge. 12. Plaintiff testified that, while stationed at Williams Field (19481950), he went to Smoky Hill Air Force Base for one week where he worked on one F-80 aircraft. Plaintiff's Depo., Vol. II at 45:6-7, 1117; 46:6-11, 20-21. Q. Now, I understand you don't recall when you were at Smoky Hill, but can you tell me if it was that the beginning, middle, or end of your military service? And if you can't, it's okay, sir. A. It was when I was stationed in William Field at the beginning. 24 (Id. at 45:11-17.) 25 ***** Q. Do you recall how long you were there? A. A week. 26 27 28 5 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 (Id. at 45:6-7.) 2 Q. 3 4 A. Q. 5 6 ***** Okay. Did you perform any work to the Lockheed aircraft that was at Smoky Hill? Yes. Okay. Let's talk about the aircraft. What kind of aircraft was it? F-80. 7 A. 8 (Id. at 46:6-11.) 9 11 ***** Q. How many F-80s were there? A. One. 12 (Id. at 46:20-21.) 10 13 13. Plaintiff testified that he does not 14 know the construction serial 15 number, Military serial number, 16 tail number, or sub-designation of 17 the F-80 aircraft that was present 18 at Smoky Hill. 19 20 21 14. Plaintiff admits that he does not 22 know the maintenance history of 23 the F-80 that was at Smoky Hill or 24 whether any of the F-80 25 components were original factory 26 installed items. 27 Plaintiff's Depo., Vol. II at 46:22-47:5. Q. Okay. Do you recall its construction serial number? A. No. Q. Military serial number? A. No. Q. Tail number? A. No. Q. Sub-designation? A. No. .... Plaintiff's Depo., Vol. II at 53:12-15; 54:9-18. Q. Also fair to say, sir, that you do not know the maintenance history of the F-80 that was at Smoky Hill; true? A. True. (Id. at 53:12-15.) 28 6 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 ***** Q. Sir, the F-80 that was at Smoky Hill, you have no personal knowledge or information as to its maintenance history or whether any of its products or equipment were the actual products and equipment that were originally installed at the Lockheed production facility; true? Mr. Green: Asked and answered. A. I don't know, to be honest. There's -- I'm not speculating, but I don't know the answer. 2 3 4 5 6 7 8 9 10 (Id. at 54:9-18.) 11 12 15. During the 1940's through 1951, 13 Lockheed Martin delivered to the 14 USAF, and the USAF accepted and 15 placed into Military service, over 16 Jimenez Decl., ¶ 15. 1,700 F-80 aircraft. 17 16. Upon delivery to the Military, each 18 F-80 aircraft was equipped with 19 numerous components 20 manufactured and supplied by 21 multiple different companies 22 Jimenez Decl., ¶ 20. unrelated to Lockheed Martin. 23 17. After aircraft delivery to the 24 Military, many of the F-80 25 components were replaced 26 numerous times for numerous 27 reasons including but not limited to: 28 Jimenez Decl., ¶ 20. scheduled maintenance, test flight 7 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 inspections, component life cycle, and corrective maintenance. 18. F-80 aircraft components subject to Jimenez Decl., ¶ 20. replacement, and which often were replaced, after aircraft delivery to the Military, include: whole and complete engines, engine assemblies and sub-assemblies (such as the starter assembly, hydraulic pump assembly, hose assemblies, electrical connection assemblies, and blankets), gaskets, seals, and clamps. 19. Lockheed Martin never supplied the Jimenez Decl., ¶ 20. Military with any F-80 replacement engines or engine accessories, such as the starter and hydraulic pump assemblies. Rather, to ensure mission accomplishment, the Military always had (and still has) multiple component distribution/vendor sources at their immediate disposal for such components, including the specific component manufacturer. 25 26 27 20. Plaintiff testified that, at Williams Field, all of his F-80 aircraft work Plaintiff's Depo., Vol. II at 32:13-19; 34:9-11; 35:21-36:8. 28 8 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 was related to helping remove the engine from the aircraft fuselage. Specifically, Plaintiff testified that his job was disconnecting the fuselage aft section from the Q. You indicated that you performed some hands-on work to the F-80 aircraft at Williams Fields. A. Correct. Q. Can you specifically distinguish the work you performed on the F-80A versus the F-80B verses the F-80C? A. All the same. fuselage mid section. 7 (Id. at 32:13-19.) 8 11 ***** Q. Okay. And your work was with respect to the engines that power this aircraft? A. Yes. 12 (Id. at 34:9-11.) 9 10 13 Q. 14 15 16 A. 17 18 19 20 21 Q. 22 23 24 A. 25 (Id. at 35:21-36:8.) 26 27 28 ***** Okay. But, as you sit here today, you cannot recall any specific task or duty that you performed to that engine; true? No. To remove that engine from the aircraft, everybody has a specific job to do. Some of them were on the front of the engine, some of them with the motor mounts. And my job was taking the aft section off. Okay. That's a perfect example of a detailed task. You recall specifically removing the aft fuselage section from the midfuselage section? Yes. 21. Plaintiff testified that the aft Plaintiff's Depo., Vol. II at 36:9-11. fuselage section is made of all 9 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 metal. 2 3 4 22. Plaintiff testified that the mid 5 fuselage section is made of all 6 metal. 7 8 9 10 11 23. Plaintiff testified that the task of removing the aft fuselage section from the mid-fuselage section is a "fairly simple and quick task." 12 13 14 15 16 17 18 19 20 21 22 23 24 24. Plaintiff testified that, to disconnect the F-80 aft fuselage Q. Okay. And, sir you would agree with me that the aft fuselage section is made of all metal? A. Correct. Plaintiff's Depo., Vol. II at 36:12-14. Q. And the mid-fuselage section is made of all metal? A. Correct. Plaintiff's Depo., Vol. II at 36:15-19. Q. And you would agree with me that the task of removing the aft fuselage section from the midfuselage section is a fairly simple and quick task? A. Yes. Plaintiff's Depo., Vol. II at 37:24-38:7; 38:11-21. section from the mid fuselage Q. Okay. Now, let me make sure I have the universe of tasks that you specifically recall performing with specifically recalls performing was respect to the removal of the F-80 opening an access panel to access aft fuselage section from the midfuselage section. and disconnect the rudder cable, A. Correct. elevator rod, and aileron cables. Q. The first thing you would do would open up an access panel? A. Correct. Q. In order to access the rudder cable, the elevator rod, and the aileron cables; true? A. Correct. section, the first task he 25 26 (Id. at 38:11-21.) 27 ***** Q. Okay. So you disconnected the rudder cables? 10 28 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 A. Correct. Q. You disconnected the cables for the ailerons? A. Correct. Q. And you disconnected the rod for the elevators? A. Correct. 2 3 4 5 6 7 8 9 10 11 12 13 14 (Id. at 37:24-38:7.) 25. Plaintiff admits that the entire exterior of the F-80 fuselage and Plaintiff's Depo., Vol. II at 31:6-20; 36:9-14; 38:22-39:1. all of the access panels on the Q. You would agree with me that the exterior of the fuselage, including entire exterior of the aircraft fuselage is made of all metal? the specific access panel he opened A. Correct. to access and disconnect the rudder (Id. at 31:6-9.) cable, elevator rod, and aileron cables are made of all-metal. 15 Q. 16 A. Q. A. 17 18 ***** You would agree with me that all of the access panels on the exterior of the fuselage – Correct. – are made of all metal – Correct. 19 (Id. at 31:16-20.) 20 ***** Q. Okay. You would agree with me that that access panel and panels that you had to open to disconnect the rudder, elevator, and aileron cables and rods is made of all metal? A. Aluminum, yes. 21 22 23 24 25 26 (Id. at 38:22-302:1.) 27 28 26. Plaintiff admits that the rudder Plaintiff's Depo., Vol. II at 39:6-14. 11 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 cable, elevator rod, and aileron cable are made of all metal. 3 4 5 6 7 8 9 10 11 12 13 14 15 27. Plaintiff admits that all of the Q. Very good. You would agree with me that the rudder cable is made of all metal? A. Oh, Correct. Q. You would agree wit me that the elevator rod is made of all metal? A. Correct. Q. And you would agree with me that the aileron cable is made of all metal? A. Correct. Plaintiff's Depo., Vol. II at 39:15-19. hardware and fasteners associated Q. And you would agree with me that with the rudder cable, elevator rod, all of the hardware and fasteners associated with the ruder cable, the and aileron cable are made of all elevator rod, and the aileron cable metal. are also made of all metal? A. Correct. 28. All of the items Plaintiff testified 16 to encountering to access and 17 disconnect the rudder cable, 18 aileron cables, and elevator rod are 19 Jimenez Decl., ¶¶ 27 and 29. made of metal -- not asbestos. 20 29. The F-80 is powered by a single 21 turbo jet engine (an Allison- 22 manufactured J-33 engine), which 23 is located entirely within the 24 aircraft fuselage. Specifically, the 25 engine is mounted on all-metal 26 supports located in the aft portion 27 Jimenez Decl., ¶ 27. of the fuselage mid section (i.e., 28 12 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 the engine bay). 30. The F-80 aircraft fuselage is built Jimenez Decl., ¶ 27. into three separate sections: nose section, mid section, and aft section. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 31. The F-80 mid and aft fuselage Jimenez Decl., ¶ 23. sections are separable through three quickly detachable all-metal tension fittings to accommodate engine installation and removal. 32. The F-80 fuselage is equipped with Jimenez Decl., ¶ 27. multiple access panels to accommodate access to various assemblies, subassemblies and components, including the flight control cables and rods. 33. The entire F-80 fuselage structure, Jimenez Decl., ¶ 27. including all skin and access panels, is made of metal. Specifically, the fuselage skin and access panels are of aluminum alloy construction. 24 25 26 27 28 34. All hardware and fasteners Jimenez Decl., ¶ 27. associated with the F-80 fuselage access panels are made of all metal. 13 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 35. The F-80 aircraft rudder and 2 aileron control systems cables are 3 made of all-steel, and are equipped 4 with corrosion-resistant steel 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jimenez Decl., ¶ 29. fittings. 36. The F-80 rudder and aileron Jimenez Decl., ¶ 29. control cables are attached to allmetal structures with quick disconnect assemblies comprised of all-metal hardware/fasteners (e.g., bolts, screws and/or brackets). These cables are disconnected by removing the allmetal hardware/fasteners. 37. The F-80 aircraft elevator control Jimenez Decl., ¶ 29. system contains a series of pushpull tubes or "rods" made of aluminum alloy and steel. The elevator push-pull tubes are disconnected by removing allmetal bolts that attach the all-metal tubes to the all-metal arms. 38. Plaintiff testified that, after disconnecting the elevator rod, the next task he specifically recalls performing was disconnecting a hydraulic hose for the dive brake. Plaintiff's Depo., Vol. II at 38:5-39:24. Q. And you disconnected the rod for the elevators? A. Correct. Q. Okay. A. And there was one hydraulic hose for the dive brakes. 14 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 Q. Okay. Now, let me make sure I have the universe of tasks that you specifically recall performing with respect to the removal of the F-80 aft fuselage section from the midfuselage section. A. Correct. 2 3 4 5 6 (Id. at 38:5-15.) 7 ***** Q. The next task you would do is you would disconnect a hydraulic hose – A. Correct. 8 9 10 11 12 13 14 15 (Id. at 39:22-24.) 39. Plaintiff testified that, to disconnect the hydraulic hose, he loosened a B-nut attached to the hose. 16 17 18 19 20 21 22 23 40. Plaintiff admits that the exterior of the hydraulic hose, the B-nut and all other associated hardware, such as safety wire, are made of allmetal. 41. All of the items Plaintiff testified 24 Q. You would agree with me that the exterior of the hydraulic hose and the B-nut and all other associated hardware, such as safety wire, is all made of metal; true? A. Correct. Jimenez Decl., ¶ 31. hydraulic hose are made of metal - 27 Plaintiff’s Depo., Vol. II at 40:10-14. disconnecting the dive brake 26 Q. And in order to disconnect the hydraulic hose, it would – you would loosen the B-nut attached to it? A. Correct. to encountering when 25 Plaintiff's Depo., Vol. II at 40:6-9. not asbestos. 28 15 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42. The F-80 is equipped with a dive Jimenez Decl., ¶ 31. flap assembly (also called dive brake assembly), which includes an all-metal hydraulic line equipped with all-metal fasteners and hardware, including an allmetal threaded B-nut coupling. 43. The dive brake assembly hydraulic Jimenez Decl., ¶ 31. line is disconnected from an allmetal dive brake actuator by loosening and removing the allmetal B-nut coupling. 44. Aircraft safety wire is an industry Jimenez Decl., ¶ 31. standard item made of high strength metal. 45. Plaintiff testified that, after Plaintiff's Depo., Vol. II at 41:5-10. removing the rudder cable, the Q. The next step you would do after elevator rod, the aileron cable, and removing the rudder cable, the elevator rod, the aileron cable, and the hydraulic hose, the next task he the hydraulic hose would be to put performed was opening up a large your hand in there and open up the large V-clamp that holds the V-clamp that holds the tailpipe to tailpipe to the exhaust cone? engine exhaust cone. A. Correct. 46. Plaintiff testified that, once the V- Plaintiff's Depo., Vol. II at 41:11-20. clamped is opened up, he would Q. And once that V-clamped is opened up, you would just slide it back onto the tailpipe, off of the flange, onto and onto the tailpipe and then slide the tailpipe? the tailpipe back. A. Correct. slide the V-Clamp off of the flange 16 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 Q. Okay. You didn't actually take the clamp off? A. No. Q. All right. A. And you slid the tailpipe back after you got that done. 2 3 4 5 6 7 8 9 47. Plaintiff testified that he removed and replaced the exhaust blanket located on the tailpipe. Plaintiff's Depo., Vol. I at 20:11-16; 21:12-25. Q. Were there ever any heat shields or insulating blankets you encountered on the fuselage of the F-80? 10 11 12 13 Ms. Yee: Objection: leading, overbroad, compound, lacks foundation. The Deponent: Just on the tailpipe. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (Id. at 20:11-16.) ***** Q. And how would you go about disconnecting the insulating blankets on the F-80 tailpipe? A. Well, the F-80 has a number of little boot hooks, and you would safetywire it, and cut the wire, take it and undo it, we would lay it - hang it out on the ground, and take a piece of wood or anything you had to flatten it out so you could put it back on. And it was wired on because the little hooks, real quick hook up. Like a boot hook. Q. And were these hooks were they part of the aircraft themselves? Ms. Yee: Objection. 28 17 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 The Deponent: No. Part of the insulating blanket. 3 (Id. at 21:12-25.) 4 48. Plaintiff testified that, to remove 5 the blanket, he had to remove a 6 thermocouple. Plaintiff's Depo., Vol. II at 60:1-61:6. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 49. Plaintiff admits that the V-clamp, Q. Sir, with respect to thermocouples that may have been present at any of the military bases, whether it's associated with aircraft or engines or something else, as you sit here today, you cannot specifically recall the manufacturer or the brand or the supplier of any of the thermocouples; true? Mr. Green: My objection is compound. The Deponent: No. Q. Okay. A. You want to know why? Q. Sure. A. When we get a newer airplane in, it comes directly from the manufacturer, and it would have manufacturer's units on it. And like the F-80, we had six brand-new ones come in. When we changed the engine or pulled the tailpipe off, we had to take the blanket off; right? Take the exhaust blanket off. In order to do that, you got to disconnect the thermocouple. I was thinking about that last night, that I lied to you yesterday. But that's the only part that I ever come in contact with the thermocouples. Ms. Yee - Okay, sir, I'll move to strike those portions that are nonresponsive and speculation. Plaintiff's Depo., Vol. II at 41:21-42:3. 18 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 tailpipe, and exhaust cone are made of all-metal. 3 4 5 6 7 8 50. All of the items Plaintiff testified 9 to encountering when opening up 10 the V-clamp, sliding back the V- 11 clamp and tailpipe, and removing 12 the exhaust tailpipe blanket and 13 thermocouple are made of metal 14 Q. Exactly. Okay. You would agree with me that the V-clamp that holds the tailpipe to the exhaust cone is made of all metal? A. Correct. Q. Okay. You would also agree with me that the tailpipe and the exhaust cone are also made of all metal? A. Correct. and fiberglass -- not asbestos. 15 51. The F-80 is equipped with a 96" 16 exhaust pipe (also referred to as 17 exhaust tailpipe or tailpipe) that 18 extends from the aft section of the 19 engine to the aft extremity of the 20 Jimenez Decl., ¶¶ 33 and 35-36. aft fuselage. 21 52. The F-80 exhaust tailpipe is made 22 of metal; specifically, it is of 23 corrosion resistant steel 24 Jimenez Decl., ¶ 33. construction. 25 53. The F-80 is equipped with an all- 26 Jimenez Decl., ¶ 33. metal V-clamp assembly 27 Jimenez Decl., ¶ 33. (manufactured by Solar Aircraft), 28 19 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 which is used to secure the exhaust tailpipe to a stainless steel tailpipe adapter or flange (manufactured by Solar Aircraft). 54. The F-80 stainless steel tailpipe Jimenez Decl., ¶ 33. adapter/flange is attached to the stainless steel aft section of the engine. 55. All hardware and fasteners Jimenez Decl., ¶ 33. associated with the V-clamp assembly are made of metal. 56. The F-80 exhaust tail pipe blanket Jimenez Decl., ¶ 35. is made of fiberglass (interior material), and is enclosed by an all-metal cover (either aluminum alloy or stainless steel cover depending on construction serial number). 57. The exhaust tail pipe blanket is Jimenez Decl., ¶ 35. wrapped around the all-metal exhaust tail pipe and is secured with stainless steel or monel mesh lacing that is fastened/wrapped around metal hooks. 25 26 27 28 58. The F-80 aircraft thermocouple Jimenez Decl., ¶ 36. circuit employs temperature indicators (located on the 20 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 instrument panel) and General Electric-manufactured thermocouples that are located inside the all-metal exhaust tailpipe. 59. Each thermocouple houses all- Jimenez Decl., ¶ 36. metal elements (i.e., alumel and chromel) that transmit a temperature signal to the cockpit indicator. 60. The thermocouple is removed by Jimenez Decl., ¶ 36. cutting all-metal safety wire, removing an all-metal B-nut, removing an all-metal washer, and pulling the thermocouple probe (which has an all-metal exterior surface) from the all-metal tailpipe attach fitting that is welded to the all-metal tailpipe structure. 61. Plaintiff admits that he testified to Plaintiff’s Depo., Vol. II at 42:4-8. all of the specific duties he recalls Q. Okay. Have you now told me about personally performing with respect all of the specific duties that you recall personally performing with the removal of the F-80 aft respect to the removal of the F-80 fuselage section from the midaft fuselage section from the midfuselage section. fuselage section? A. That's all I would do. 62. Plaintiff testified that, in Plaintiff’s Depo., Vol. II at 42:9-24. 21 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 performing his duties, he saw the crew chief roll the aft-section stand under the aircraft and other mechanics loosen the aft-section fuselage bolts and engine mount bolts. 7 8 9 10 11 12 13 14 15 63. Plaintiff admits that all of the aft- 16 section fuselage bolts and their 17 associated hardware/safety wire, 18 the engine mount bolts, and the 19 interior engine bay wall are made 20 of all-metal. 21 22 23 24 25 26 27 28 Q. Thank you, sir. Now, you indicated that in performing your duties, you saw some mechanics do other things. For example, you saw the crew chief get the aft fuselage section stand and roll it underneath the aircraft. A. Correct. Q. Okay. And you also saw other mechanics loosen the three engine mount bolts; true? A. Well, the aft section bolts first. Q. Okay. And there's three aft section bolts? A. I don't remember. Q. Okay. Either way, you had to loosen the bolts in order to disconnect the aft section – A. Right. Plaintiff's Depo., Vol. II at 42:2543:17. Q. [Regarding aft section bolts] You would agree with me that those bolts and all the hardware and safety wire associated with them is made of all metal? A. Correct. Q. Okay. You also indicated that you saw other mechanics loosen the three engine mount bolts; true? A. Correct. Q. Okay. And those three engine mount bolts are what secure the engine to the engine bay? A. Correct. Q. Okay. You would agree with me that those engine mount bolts are also made of all metal? 22 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 A. Correct. Q. Okay. And you would agree with me that the interior of the engine bay is a metal wall? It's a big tube? A. Correct. 2 3 4 5 64. Plaintiff admits that he testified to 6 Plaintiff's Depo., Vol. II at 44:8-13. all of the duties he performed and 7 8 9 10 11 12 Q. Fair to say you have now told me saw others perform with respect to all of the duties you performed and all of the duties you saw others the F-80 aircraft and its component perform with respect to F-80 parts while stationed at Williams aircraft and its component parts while you were stationed at field. Williams Field, Arizona; true? A. True, as far as I can go. 65. All of the F-80 items Plaintiff 13 testified to seeing other mechanics 14 encounter when loosening the aft- 15 section fuselage bolts and engine 16 mount bolts are made of metal -- 17 Jimenez Decl., ¶¶ 27 and 38-39. not asbestos. 18 66. The F-80 aircraft mid and aft 19 fuselage sections are 20 separated/connected through three 21 attachment fittings (also called 22 tension fittings) to accommodate 23 Jimenez Decl., ¶¶ 23 and 34. engine installation and removal. 24 67. The F-80 tension fittings are 25 integral to the all-metal fuselage 26 structure and connected with 27 mounting bolts and nuts (sometime 28 Jimenez Decl., ¶¶ 27 and 38. referred to as aft or mid fuselage 23 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 mount bolts). 68. The F-80 tension fittings and all Jimenez Decl., ¶¶ 27 and 38. associated hardware and fasteners, including the mount bolts and nuts, are made of metal. 69. The F-80 aircraft engine is located Jimenez Decl., ¶¶ 27 and 39. entirely in the fuselage and is mounted on three engine mount supports located in the aft section of the mid-fuselage section (i.e., the engine bay). 70. The F-80 aircraft engine mount Jimenez Decl., ¶¶ 27 and 39. supports are integral to the allmetal fuselage structure and are made of aluminum alloy and steel. 71. Each engine mount support is a Jimenez Decl., ¶¶ 27 and 39. hinged clam shell type assembly that, when closed, securely encloses an all-metal captive ball assembly, which is integral to the all-metal structure of the engine. 22 23 24 25 26 27 28 72. The fuselage aft section stand is Jimenez Decl., ¶ 44. ground equipment used to support and transport the fuselage aft section; it contains no asbestos. 73. Regarding Plaintiff's one week assignment at Smoky Hill, Plaintiff Plaintiff Depo., Vol. II at 47:23-48:22. Q. Sir, with respect to the one F-80 24 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 testified that, in addition to removing the aft fuselage section from the mid fuselage section (which Plaintiff admits involved the exact same duties that he A. Q. performed at Williams Field), he helped remove the engine from the A. Q. engine bay and replaced engine components. 10 11 12 13 14 A. 15 Q. 16 17 18 A. 19 20 Q. 21 A. 22 74. Plaintiff testified that, in removing 23 the engine from the engine bay, his 24 hands-on duties were limited to 25 disconnecting three engine bolts. 26 27 28 that was present at Smoky Hill during that one week that you were there, do you recall specifically the duties that you performed to that aircraft? Yes. Okay. Was it removing the aft fuselage section from the midfuselage section? Yes. So, sir, to save you time, is it fair to say that the duties that you performed to the F-80 aircraft at Smoky Hill, you have already described those duties fully and completely to me this morning when we were talking about your work on F-80 aircraft at Williams Field; true? True. Except that Smoky Hill would get a little bit more on it. Okay. What other work do you specifically recall doing to the F-80 at Smoky Hill other than removing the aft section of the fuselage from the midsection of the fuselage? Replacing components on the engine. After we removed it. Did you personally help remove the engine from the engine bay? Yes. Plaintiff Depo., Vol. II at 48:20-49:6. Q. Did you personally help remove the engine from the engine bay? A. Yes. Q. Okay. And let's talk about that duty, and I don't want you to guess or speculate. But would it be a fair and accurate summary to say that 25 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 your hands-on duties for removing the engine were limited to the disconnecting the three engine bolts – A. Correct. Q. - engine mounts; true? A. - Correct. 2 3 4 5 6 75. Plaintiff admits that the engine 7 mount bolts, and all associated 8 hardware, are made of all metal. 9 10 11 76. All of the F-80 items that Plaintiff 12 testified to encountering when 13 mount bolts are made of metal and 16 fiberglass - not asbestos. 17 77. Regarding engine component 18 removal work at Smoky Hill, 19 Plaintiff testified that he removed Jimenez Decl., ¶¶ 27, 29, 31, 33, 35-36, and disconnecting the engine 15 Q. Okay. And those engine mount bolts are - and all of the associated hardware are made of all metal, true? A. True. removing the aft fuselage section 14 Plaintiff Depo., Vol. II at 49:7-10. 20 only three engine components: the 21 starter, the hydraulic pump, and 22 the hydraulic pump gasket. 23 24 and 38-39. Plaintiff's Depo., Vol. II at 49:15-20; 51:8-17; 52:10-15. Q. You indicated that some components were taken off of the engine. A. Correct. Q. Did you personally do that? A. I removed the starter and the hydraulic pump. 25 (Id at 49:15-20.) 26 ***** Q. Sir, do you specifically recall removing the starter gasket on the engine that powered the F-80 when 26 27 28 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 you were at Smoky Hill in Kansas? A. No, I don't. Q. Okay. Thank you, sir. Sir as you sit here today, under oath, do you recall removing any other component or installing or handling any other component for the engine that powers the F-80 at Smoky Hill? A. Hydraulic pump. 2 3 4 5 6 7 8 (Id. at 51:8-17.) 9 ***** Q. Okay. At you sit here today, sir, do you actually recall removing a hydraulic pump gasket? A. Yes. 10 11 12 (Id. at 52:10-12.) 13 14 78. Plaintiff admits that, with respect 15 to the F-80 at Smoky Hill, he 16 testified to all of the components 17 and parts that he specifically 18 recalls handling and seeing others 19 handle. 20 79. Plaintiff testified that the engine 21 starter and hydraulic pump are 22 attached to all-metal accessory 23 pads located on the all-metal 24 accessory gear drive. 25 Plaintiff's Depo., Vol. II at 55:15-19. Q. All right. Now with respect to the F-80 that was at Smoky Hill, have you now told me all of the components and parts that you specifically recall handling and see others handle? A. Yes. Plaintiff's Depo., Vol. II at 49:21-50: 6; 50:17-20; 51:19-52:4. Q. You would agree with me that the mounting pad where the starter is attached to the accessory gear drive is made of all metal? A. Yes. 26 27 (Id. at 50:17-20.) ***** 28 27 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 4 Q. [Regarding hydraulic pump] You would agree with the accessory pad on the accessory drive case is made of all metal? A. Correct. 5 (Id. at 52:1-4.) 6 ***** Q. The entire accessory drive case is made of metal? A. Correct. 2 3 7 8 9 10 11 12 13 14 15 16 17 18 19 20 (Id. at 50:4-6.) 80. Plaintiff admits that the F-80 engine starter and hydraulic pump Plaintiff's Depo., Vol. II at 50:9-16; 51:19-25. are fully encased in all-metal Q. Okay. And you would agree with housings, and that all associated me, sir, that a starter is fully housed and fully encased in an all-metal hardware, fasteners and safety wire housing? also are made of all metal. A. Correct. Q. And you would agree with me that the bolts and other fasteners and the safety wire associated with it are made of all metal? A. Correct. (Id. at 50:9-16.) 21 22 Q. 23 24 25 A. Q. 26 27 A. ***** You would agree with me that the hydraulic pump is also fully housed in an all-metal housing? Correct. You would agree with me that the hardware associated with the hydraulic pump is made of all metal? Correct. 28 28 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 (Id. at 51:19-25.) 81. Plaintiff admits that he does not 3 know the composition of any 4 gaskets present at Smoky Hill. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 82. Plaintiff admits that, other than Plaintiff's Depo., Vol. II at 57:6-12. Q. With respect to any gaskets that may have been present A. Right. -- at Smoky Hill, you do not have any personal knowledge regarding what those gaskets are made of; true? A. True. Plaintiff's Depo., Vol. II at 53:7-11. metal, he does not know the Q. Other than metal, it's fair to say that composition of any products, you do not know the composition of any products, equipment, or equipment or materials with which materials that you may have come he may have come into contact. into contact with; true? A. True. 83. Plaintiff admits that he does not know the brand, manufacturer or supplier of the starter, hydraulic pump, or any gaskets associated with these components. Plaintiff's Depo., Vol. II at 53:1-5; 57:14-17. Q. Fair to say you do not know the brand, manufacturer, or supplier of the starter, hydraulic pump, or any gaskets associated with those components – A. Correct. 22 23 24 25 26 27 (Id. at 53:1-5.) ***** Q. And with respect to any of those gaskets at Smoky Hill, you do not know the brand or manufacturer; true? A. True. 28 29 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 (Id. at 57:14-17.) 84. All of the items Plaintiff testified 3 to encountering when removing 4 the engine starter and hydraulic 5 pump are made of metal and other 6 materials -- not asbestos. 7 85. The F-80 engine starter is fully Jimenez Decl., ¶ 42. 8 9 Jimenez Decl., ¶ 42. encased in an all-metal housing. 86. The F-80 engine hydraulic pump is Jimenez Decl., ¶ 42. 10 fully encased in an all-metal 11 housing. 12 87. The F-80 engine starter and engine Jimenez Decl., ¶ 42. 13 hydraulic pump are affixed with 14 all-metal hardware/fasteners/safety 15 wire to the all-metal accessory 16 mounting pads located on the all- 17 metal accessory gear drive. 18 88. The engine accessory gear drive is 19 made of metal (i.e., magnesium 20 alloy), and is flange mounted to 21 the all-metal front truss and ring, 22 which is integral to the forward 23 section of the engine. 24 89. The Military specifications Jimenez Decl., ¶ 42. 25 applicable to the hydraulic pump 26 accessory interface gasket do not 27 Jimenez Decl., ¶ 42. include or list asbestos in the 28 30 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 material composition of that gasket. 90. Regarding Plaintiff's entire Military career, Plaintiff admits Plaintiff’s Depo., Vol. II at 42:4-8; 44:8-13; 55:15-19; 58:5-24. that that the above-listed duties Q. Okay. Have you now told me about all of the specific duties that you recall personally performing with 45-49, 61-64, 73-75, and 77-83) respect to the removal of the F-80 are the only duties he recalls aft fuselage section from the midperforming, and/or seeing others fuselage section? perform, on F-80 aircraft. Plaintiff A. That's all I would do. (Material Fact Nos. 20-27, 38-40, further admits that he has provided (Id. at 42:4-8.) his best testimony regarding all ***** work he recalls being performed at Q. Fair to say you have now told me all of the duties you performed and each Military base he has visited all of the duties you saw others or worked at during his Military perform with respect to F-80 aircraft and its career. component parts while you were stationed at Williams Field, Arizona; true? A. True, as far as I can go. 20 (Id. at 44:8-13.) 21 ***** Q. All right. Now with respect to the F-80 that was at Smoky Hill, have you now told me all of the components and parts that you specifically recall handling and see others handle? A. Yes. 22 23 24 25 26 27 (Id. at 55:15-19.) 28 31 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 Q. 3 4 A. Q. 5 6 7 8 9 A. Q. 10 11 12 13 A. Q. A. 14 15 16 ***** Sir, have you now told me about all of the military stations that you visited or worked at during your military career? Yes. Okay. And, sir, is it a fair and accurate statement that you have provided me your best testimony with respect to what you recall performing and doing at these military bases? Correct. And is it fair and accurate to say that you have provided me your best testimony with respect to the type of work that was taking place at these military bases? With-That you recall? With the years that went by, yes. (Id. at 58:5-20.) 17 18 19 20 21 22 ISSUE: Lockheed Martin Is Immune From Liability Under Two Separate and Independent Doctrines: 1) Derivative Sovereign Immunity, and 2) The Government Contractor Defense. Plaintiff’s failure-to-warn claims also are barred by California’s sophisticated user doctrine. 23 24 91. The United States always has 25 delegated to and relied upon 26 outside contractors, such as 27 Lockheed Martin, for the 28 Jimenez Decl., ¶¶ 9-12. development and manufacture of 32 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 its Military aircraft. 92. The Military always has exercised Jimenez Decl., ¶¶ 9-19. a high degree of control, direction and involvement in the design, manufacture, testing and production of all Military aircraft, including all series of the F-80 Shooting Star ("F-80"). 93. The Military directed and Jimenez Decl., ¶¶ 17-19. controlled the inclusion, type, placement, and content of the finishes, markings, insignia, identifications, and warnings to be placed on all Military aircraft and aircraft components, including the F-80 aircraft and F-80 aircraft components. 94. The Military controlled the content Jimenez Decl., ¶¶ 16 and 18. of all manuals and publications governing maintenance, service, overhaul, and operation of all Military aircraft (hereinafter, "Aircraft Manuals"), including the F-80. 95. The Military published the Aircraft Jimenez Decl., ¶ 16. Manuals as Technical Orders, and controls all information contained 28 33 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 in them and owns them. 96. The United States Government's Jimenez Decl., ¶¶ 9-12. procurement of all Military aircraft has been conducted pursuant to detailed negotiated Government procurement contracts. 97. Lockheed Martin and the Jimenez Decl., ¶¶ 11-14. Government entered into Government procurement contracts requiring Lockheed Martin (then, Lockheed Aircraft Corporation) to manufacture and the Government to purchase F-80 Military aircraft. 98. Lockheed Martin manufactured all Jimenez Decl., ¶¶ 9-19. of its Military aircraft, including the F-80 Military aircraft, at the direction of the Government pursuant to contractually delegated authority. 99. Lockheed Martin took no action in Jimenez Decl., ¶¶ 9-19. the manufacture of any Military aircraft, including the F-80 Military aircraft, that went beyond the authority delegated to it by the Government. 27 28 100. All Military aircraft procurement Jimenez Decl., ¶¶ 9-19. 34 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 contracts, including those regarding the F-80 Military aircraft, have included detailed Military-issued and/or Militaryapproved specifications. 101. The Government approved and Jimenez Decl., ¶¶ 9-19. required Lockheed Martin to follow detailed design, performance and material specifications when manufacturing the F-80 Military aircraft. 102. Lockheed Martin could not, and Jimenez Decl., ¶ 11. did not, commence manufacturing of the F-80 Military aircraft until the Government had agreed to all the specifications. 103. The Military-mandated Jimenez Decl., ¶¶ 17-19. specifications for the F-80 included detailed specifications for the placement of warnings, markings, and insignia on aircraft, which prohibited Lockheed Martin from placing any warnings, markings or insignia other than those approved by the Military. 104. The Military-mandated Jimenez Decl., ¶¶ 12-14, 16, and 18. specifications for the F-80 Military 28 35 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 aircraft included detailed direction and control over all information contained in the Aircraft Manuals. 105. The Military published the F-80 Jimenez Decl., ¶ 16. Aircraft Manuals as Technical Orders, and the Military controls all information contained in them and owns them. 106. The Military-mandated Jimenez Decl., ¶¶ 12-14. specifications for the F-80 set forth in detail, among other requirements, the equipment that the Government mandated Lockheed Martin to install in the Military aircraft. Some of this equipment included Government Furnished Equipment ("GFE"). 107. GFE is equipment that the Jimenez Decl., ¶ 12. Government selects, procures, and furnishes to the contractor, such as Lockheed Martin, with mandatory installation instructions. 108. The Government selected, Jimenez Decl., ¶¶ 14 and 41. procured, and furnished to Lockheed Martin, for mandatory installation in the F-80, a substantial quantity of GFE, 28 36 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 including, but not limited to the Allison-manufactured J-33 engine complete with multiple attached engine assemblies, subassemblies and components, including the starter assembly, hydraulic pump mounting pad cover and hydraulic pump gasket. The Government supplied Lockheed Martin with all manuals concerning GFE; Lockheed Martin had no authority to alter or amend GFE manuals. 109. The Military had personnel Jimenez Decl., ¶ 15. stationed on-site at Lockheed Martin's manufacturing facilities inspecting and supervising the design, manufacture, testing and production of all Lockheed Martin-manufactured Military aircraft, including the F-80. 110. Before accepting delivery of any Jimenez Decl., ¶ 15. Lockheed Martin-manufactured Military aircraft, including the F80, Military representatives inspected and tested the aircraft to ensure compliance with Military specifications. 28 37 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 111. The Military's acceptance of each Jimenez Decl., ¶ 15. aircraft means that the aircraft was designed and manufactured in strict accordance with Government contracts and all Militarymandated/approved specifications. 112. The USAF knew of potential Air Forces Manual No. 30, dated July health hazards of asbestos by at 1944, excerpts of which are attached as least 1944 and prescribed Exhibit 3 to Parker Decl. at p. 71 precautionary procedures for (Section C(1)); and dealing with asbestos dust. Ground Safety Accident Prevention 12 Handbook, dated June 1949, excerpts 13 of which are attached as Exhibit 4 to 14 Parker Decl. at p. 74 (Section 6.1-1(1) 15 and p. 74-A[chart]). 16 17 18 19 20 21 22 23 24 25 26 27 113. Army Air Forces Manual No. 30, Air Forces Manual No. 30, attached as dated July 1944, and entitled Exhibit 3 to Parker Decl. at p. 71 “Ground Safety Rules, A Manual (Section C(1)). for Safe Rules and Practices,” recognized that “[t]he degree of harmful exposure to silica and asbestos dust is determined by four factors: by the proportion of free silica or asbestos dust found in the dust, by the size of the dust particles (the smaller, the more 28 38 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 dangerous), by the concentration of the dust or the number of dust particles per cubic foot of air, and by the length of the exposure.” 114. In the 1940s and 1950s, the Military established specific Exhibit 3 to Parker Decl. at p. 71 precautionary procedures for (Section C(1); dealing with asbestos dust. Ground Safety Accident Prevention 9 Handbook, attached as Exhibit 4 to 10 Parker Decl. at p. 74 (Section 6.1-1(1) 11 and p. 74-A [chart]); 12 Air Force Pamphlet 160-1-1, dated 13 September 13, 1951, excerpts of which 14 are attached as Exhibit 5 to Parker Decl. 15 at pp. 76 and 77 [chart]; and 16 Air Force Pamphlet 160-6-1, dated 17 September 2, 1952, excerpts of which 18 are attached as Exhibit 6 to Parker Decl. 19 20 21 22 23 24 25 Air Forces Manual No. 30, attached as at pp. 81-82, Par. 3(c). 115. The USAF established a Air Force Pamphlet 160-1-1, attached “Respiratory Protection Program” as Exhibit 5 to Parker Decl. at pp. 76 by 1951, which specified and 77 [chart]. respiratory protection equipment for “pneumoconiosis-producing dusts,” including asbestos. 26 27 116. By 1952, the USAF established a Air Force Pamphlet 160-6-1, excerpts 28 39 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 specific “threshold limit value” for of which are attached as Exhibit 6 to asbestos dust; specifically, 5 Parker Decl. at pp. 81-82, Par. 3(c). million particles of dust per cubic feet of air for eight hours per day, five days per week, 50 weeks per year. 7 8 9 10 11 12 13 14 15 16 117. During the period of time that Jimenez Decl., ¶ 45. Plaintiff encountered Military Aircraft, including the F-80, Lockheed Martin had no knowledge superior to that of the United States Government of any hazards associated with the use of asbestos in general or on aircraft in particular. 17 CONCLUSIONS OF LAW 18 19 1. This Court exercises original subject matter jurisdiction over this case pursuant to 20 28 U.S.C. § 1332, because the matter in controversy exceeds the sum or value of 21 $75,000, exclusive of interest and costs, and is between citizens of different 22 States. 23 2. Summary judgment is appropriate when there is no genuine dispute. Fed. R. 24 Civ. P. 56(a). A dispute as to a material fact is genuine if the evidence is such 25 that a reasonable jury could return a verdict for the nonmoving party. Anderson 26 v. Liberty Lobby, Inc., 477 U.S. 242 (1986). 27 28 3. All of Plaintiff's causes of action against Lockheed Martin (negligence, strict products liability, and breach of warranty) fail for lack of causation because 40 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 Lockheed Martin presented undisputed evidence, including Plaintiff’s own 2 deposition testimony, that Plaintiff was not exposed to any asbestos-containing 3 product for which Lockheed Martin may be liable. O’Neil v. Crane Co., 53 4 Cal.4th 335 (2012). Even if Plaintiff encountered asbestos-containing products, 5 there is no admissible evidence Lockheed Martin manufactured or supplied such 6 products. Lockheed Martin’s objections to the admissibility of Plaintiff’s expert 7 Mark Thomson are sustained because Mr. Thomson has no firsthand knowledge 8 of Plaintiff’s work. See Tyler v. Foster Wheeler Co., Inc., MDL 875, 2011 WL 9 5506026 (July 5, 2011). 10 4. Lockheed Martin also prevails as a matter of law under its government 11 contractor defense as set forth in Boyle v. United Technologies Corp., 487 U.S. 12 500 (1988). The government contractor defense is satisfied here because the 13 design specifications for the F-80 aircraft at issue were Government-mandated 14 and/or approved, the aircraft conformed to those specifications, and Lockheed 15 Martin did not fail to warn the Government of any dangers known to Lockheed 16 Martin and unknown to the Government. Moreover, with respect to the aircraft 17 components implicated by Plaintiff’s claims, the Government not only approved 18 reasonably precise specifications, but actually selected, purchased and provided 19 the equipment to Lockheed Martin in the form of “Government Furnished 20 Equipment.” The government contractor defense also applies to claims of 21 failure to warn. See Tate v. Boeing Helicopters, 55 F. 3d 1150, 1157 (6th Cir. 22 1995). 23 5. Lockheed Martin also prevails on its defense of derivative sovereign immunity. 24 See Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940); see also City of 25 Worcester v. HCA Management Co., Inc., 753 F. Supp. 31, 37 (D. Mass. 1990). 26 Lockheed Martin has established the requisite elements of this defense by 27 showing that it complied with validly conferred authority from the government 28 and did not independently harm Plaintiff. There is no evidence that Lockheed 41 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 Martin acted beyond its validly conferred authority or that it caused harm 2 through independent tortious conduct. 3 6. To the extent Plaintiffs rely on the declaration of their retained expert, Mark 4 Thomson, to create a triable dispute of material fact regarding Lockheed 5 Martin’s government contractor defense and derivative sovereign immunity 6 defense, Lockheed Martin’s objections to Mr. Thomson’s declaration are 7 sustained. 8 9 7. Plaintiff’s failure-to-warn claims are barred by California’s sophisticated user doctrine. Plaintiff, by virtue of his employment as a uniformed mechanic in the 10 United States Air Force, is deemed to have had the same state-of-the-art 11 knowledge as the Air Force concerning any potential health hazards of asbestos. 12 The admissible evidence establishes that the Air Force had more knowledge of 13 such risks than Lockheed Martin. See In re Related Asbestos Cases, 543 14 F.Supp. 1142, 1151 (N.D. Cal. 1982). 15 16 IT IS SO ORDERED. 17 18 19 20 Dated: _Oct. 16, 2013__ By: ________________________________ Hon. Manuel L. Real 21 22 23 24 25 26 27 28 42 [PROPOSED] ORDER GRANTING LOCKHEED MARTIN CORPORATION’S MOTION FOR SUMMARY JUDGMENT; STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 1 CERTIFICATE OF SERVICE 2 3 I, the undersigned, do hereby certify that on the below noted date, the 4 aforementioned document was electronically filed with the Clerk of the Court of the 5 United States District Court, Central District of California using the ECF system which 6 sent notification of such filing to all counsel of record. This document is now 7 available for viewing and downloading from the ECF system. 8 9 10 11 12 13 14 15 Dated: October 9, 2013 /s/ Deborah M. Parker Deborah M. Parker, SBN 228203 Glazier Yee LLLP 707 Wilshire Boulevard, Suite 2025 Los Angeles, California 90017 Phone: (213) 312-9200 Fax: (213) 312-9201 Email: parker@glazieryee.com Attorneys for Defendant LOCKHEED MARTIN CORPORATION 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE
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