Lannes Ex Rel. Estate of Lannes v. Flowserve U.S., Inc.

FILED
NOT FOR PUBLICATION OCT 14 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY J. LANNES, individually and as No. 13-56391
Personal Representative of the Estate of
Vernon P. Lannes; KRISTI JOHNSON, D.C. No. 2:12-cv-01876-PA-AJW

Plaintiffs - Appellants,
MEMORANDUM*
v.

FLOWSERVE U.S., INC., sued
individually and as successor-in-interest to
Edward Valve, Inc.,

Defendant - Appellee.

JEFFREY J. LANNES, individually and as No. 13-56393
Personal Representative of the Estate of
Vernon P. Lannes; KRISTI JOHNSON, D.C. No. 2:12-cv-01876-PA-AJW

Plaintiffs - Appellants,

v.

FLOWSERVE U.S., INC., sued
individually and as successor-in-interest to
Edward Valve, Inc.,

Defendant,

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
 and

JERGUSON GAGE & VALVE
COMPANY,

Defendant - Appellee.

JEFFREY J. LANNES, individually and as No. 13-56397
Personal Representative of the Estate of
Vernon P. Lannes; KRISTI JOHNSON, D.C. No. 2:12-cv-01876-PA-AJW

Plaintiffs - Appellants,

v.

FLOWSERVE U.S., INC., sued
individually and as successor-in-interest to
Edward Valve, Inc. and JERGUSON
GAGE & VALVE COMPANY,

Defendants,

and

WARREN PUMPS, LLC,

Defendant - Appellee.

Appeals from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding

Argued and Submitted August 31, 2015

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 Pasadena, California

Before: KOZINSKI, O’SCANNLAIN, and BYBEE, Circuit Judges.

The facts and procedural posture of these consolidated cases are known to

the parties, and we do not repeat them here. Plaintiffs Jeffrey Lannes and Kristi

Johnson appeal the district court’s grant of summary judgment in favor of

defendants Flowserve U.S. Inc., Jerguson Gage & Valve Co., and Warren Pumps,

LLC. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Under California law, the plaintiffs must show as a “threshold requirement”

that “the defendant[s] manufactured, sold, or supplied” the asbestos-laden gaskets,

packing, or insulation to which decedent Vernon Lannes was exposed when he

worked on the USS Fletcher and the USS Duncan during his naval service. O’Neil

v. Crane Co., 266 P.3d 987, 1005 (Cal. 2012). There is no triable issue of fact

here, and summary judgment was therefore proper.

First, the defendants shifted the burden of demonstrating a material issue of

fact by “pointing out . . . that there is an absence of evidence to support the

[plaintiffs’] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). As for

original insulation from Warren, the plaintiffs’ expert—Captain William

Lowell—admitted that, due to overhaul schedules, there would have been no

original insulation on the ships when Lannes came aboard. Lannes also admitted

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he did not know the pumps’ maintenance history, which erodes any foundation for

his testimony that he once opened a Warren pump and saw “original” insulation.1

Lannes did not base this statement on any prior experience handling what he knew

to be original insulation; he merely said the insulation was packed tightly and

looked “old.”

With respect to replacement gaskets, packing, and insulation from the three

defendants,2 Lannes admitted he had no personal knowledge of who made any of

the replacement parts he used, and that packing was “pretty standard” and could

come from numerous sources. At best, his testimony showed that his superior

officer would order replacement parts out of a manufacturer-provided book, which

contained generic Naval Supply System numbers, and that the parts fit when they

arrived. Captain Lowell could conclude only that Lannes was exposed to

1
We reject plaintiffs’ argument that Warren needed to do something more
than make a timely, specific objection to the district court to preserve an objection
to the foundation of Lannes’s testimony. See Pfingston v. Ronan Eng’g Co., 284
F.3d 999, 1003 (9th Cir. 2002). We similarly deny Warren’s motion to strike the
plaintiffs’ reply-brief arguments discussing this objection. A plaintiff need not
anticipate, at penalty of forfeiture, what alternative bases for affirmance an
appellee might raise on appeal.
2
In their opening brief, the plaintiffs adequately raised the issue of whether
Warren supplied replacement insulation. We thus deny Warren’s motion to strike
those arguments as having been raised for the first time in the plaintiffs’ reply
brief.

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replacement parts that contained asbestos, with no mention of where they came

from. And Lowell admitted he had no documentary evidence that Warren ever

supplied replacement parts to the ships at issue.

Second, the plaintiffs’ opposition evidence failed to create a material issue

of fact. Neither the fact that Warren cut its own gaskets for its pumps when it

produced them, nor its admission that at “certain times” it “may have” sold

replacement gaskets during its hundred-plus-year history, suffices to create a

triable issue as to whether Warren supplied the parts Lannes handled. Captain

Lowell’s testimony from a different case—involving different ships, plaintiffs, and

defendants—is too generic to create a fact issue for this case and these defendants.

Similarly, Flowserve’s answers to interrogatories from that same case, and its

corporate representative’s testimony from yet another case, show only that at some

point Flowserve sold replacement parts. The defendants’ affirmative evidence

from expert Thomas McCaffery, however, shows that neither Floweserve nor

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Jerguson were approved suppliers of replacement parts to the Navy during the

relevant time period.3

Third, the district court did not abuse its discretion when it excluded Captain

Francis Burger’s declaration. No formal motion is necessary for a court to

disallow the use of undisclosed expert testimony. See Fed. R. Civ. P. 37(c)(1).

And we fail to appreciate how the plaintiffs could create a material issue of fact by

relying on expert testimony that they claim will not be used at trial. “Rule 26 of

the Federal Rules of Civil Procedure requires parties to disclose the identity of any

expert witness.” Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817,

824 (9th Cir. 2011). And Rule 37(c)(1) is the enforcement mechanism for the

disclosure rule, which plaintiffs violated here. See Yeti by Molly, Ltd. v. Deckers

Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).

Summary judgment in favor of the defendants was proper, see O’Neil, 266

P.3d at 996, so we AFFIRM.

3
The plaintiffs are right that the district court erred when it concluded that
they failed to object to the McCaffery report. But they did fail to object to
McCaffery’s expert qualifications, and may not do so now on appeal. As for the
remainder of their objection, McCaffery’s report provided sufficient factual and
methodological bases for its conclusions and was thus properly considered. See
Fed. R. Evid. 702; Walton v. U.S. Marshals Serv., 492 F.3d 998, 1008 (9th Cir.
2007).

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