NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAY 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROGER BOTTS and CAROL BOTTS, No. 14-35007
Plaintiffs - Appellants, D.C. No. 2:12-cv-01943-JLR
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted May 2, 2016
Seattle, Washington
Before: GRABER and BERZON, Circuit Judges, and CURIEL,** District Judge.
Roger and Carol Botts appeal the district court’s grant of summary judgment
to the government. We have jurisdiction under 28 U.S.C. §§ 1346(b), 2671-2680,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gonzalo P. Curiel, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
1
and we reverse and remand for further proceedings consistent with this disposition.
The district court erred in finding that Botts failed to produce evidence from
which a finder of fact could reasonably conclude that asbestos exposure at the
Puget Sound Naval Shipyard (the “Shipyard”) resulting from violations of the
Navy’s mandatory rules after March 1970 was a substantial factor in causing Roger
Botts’ mesothelioma. See Lockwood v. AC & S, Inc., 744 P.2d 605, 613 (Wash.
1987).
The district court’s view of the evidence was unduly restrictive in several
ways. First, the district court found that the record did not establish the extent to
which asbestos exposure at the Shipyard was due to violations of the Navy’s
asbestos containment regulations. However, evidence in the record shows that
Navy personnel did not comply with the containment regulations after they came
into effect in March 1970, and that, had the containment regulations been complied
with, the volume and spread of asbestos fibers on ships due to just removal and
cleanup activities would have been reduced by 90%.
Second, the district court discounted Botts’ Shipyard-wide asbestos
exposure. However, there is evidence that asbestos-related work, including
asbestos removal, installation, and fabrication, took place both on board ships and
around the Shipyard while Botts made deliveries to the shipyard from 1970 to
2
1976. Under Washington law, expert “testimony that asbestos fibers have the
ability to disperse over an entire shipyard is sufficient evidence from which it
could be inferred that” an individual who worked at that shipyard during times that
asbestos products were used “breathed the asbestos regardless of whether [the
individual] worked on the ships or only in the shipyard.” Berry v. Crown Cork &
Seal Co., 14 P.3d 789, 795 (Wash. Ct. App. 2000). Here, Dr. Heyer so testified,
and the United States has not challenged the validity or admissibility of his expert
testimony. See Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.
1995);
Third, the district court found that the time frame of exposure was only a
one-month period from February to March of 1971. However, violations of the
Navy’s asbestos containment regulations began in March 1970, and there is
evidence that, from 1970 to 1976, Botts spent as much as 20% of his working time
each year at the Shipyard. There was expert testimony that working for less than a
year in total in a shipyard during this time period could result in anywhere between
a two- to eight-fold increase in the risk of developing mesothelioma due to
asbestos exposure.
Thus, a finder of fact could have reasonably concluded that Botts provided
sufficient evidence of causation. See Berry, 14 P.3d at 795; Allen v. Asbestos
3
Corp., 157 P.3d 406, 409–10 (Wash. Ct. App. 2007).1 Accordingly, we reverse the
district court’s grant of summary judgment and remand for further proceedings.
REVERSED AND REMANDED.
1
McIndoe v. Huntington Ingalls Inc., Nos. 13-56762, 13-56764, 2016 WL
1253903 (9th Cir. Mar. 31, 2016), does not command otherwise. Not only was
McIndoe decided under maritime and California law, rather than the Washington
law applicable here, but in McIndoe plaintiff failed to provide any evidence as to
the extent of his exposure to defendants’ asbestos, especially with regard to the
amount and duration of the exposure. Id. at *4–5. McIndoe also rejected the only
other causation evidence McIndoe provided—expert testimony that “every
exposure to asbestos above a threshold level is necessarily a substantial factor in
the contraction of asbestos-related diseases.” Id. at *5. McIndoe expressly
distinguished other cases, like this one, that do not rely on the same type of
“sweeping testimony” amounting to a legal conclusion. See id. & n.8.
4