Botts v. US (2016)

Our plain-English summary of Botts v. US (U.S. Court of Appeals, Ninth Circuit, May 16, 2016).

Roger Botts and his wife Carol sued the United States, claiming that asbestos exposure at the Puget Sound Naval Shipyard caused Roger's mesothelioma. The district court granted summary judgment to the government, finding Botts had not shown enough evidence that exposure caused by Navy violations of its own asbestos containment rules was a substantial factor in his disease. The Ninth Circuit reversed. It noted evidence that Navy personnel did not follow the containment rules after March 1970 and that compliance would have cut fiber spread from removal and cleanup by 90%. Botts made deliveries to the shipyard from 1970 to 1976, spending as much as 20% of his working time there, and asbestos work took place both on ships and around the yard. An unchallenged expert said asbestos fibers can disperse over a whole shipyard, and another expert said under a year of shipyard work could raise mesothelioma risk two- to eight-fold. Under Washington law, a factfinder could find causation, so the case went back to the district court.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. Court of Appeals, Ninth Circuit
• Decided: May 16, 2016
• Docket: No. 14-35007
• Stage: Appeal from summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: California

Outcome. The Ninth Circuit reversed the district court's grant of summary judgment to the United States and remanded for further proceedings, siding with Roger and Carol Botts.

What the court held. Under Washington law, expert testimony that asbestos fibers disperse across a whole shipyard can support an inference that a person working there breathed asbestos, so evidence of Navy rule violations, shipyard-wide exposure and a multi-year exposure period was enough for a factfinder to find causation.

Issues decided: Causation, Expert Testimony, Government Contractor Defense and Removal, Maritime Law and Navy Ships.

The people and their exposure

• Roger Botts: mesothelioma

The defendants

• United States of America (government)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Lockwood v. AC & S, Inc. (Washington Supreme Court, 1987). The Washington Supreme Court affirmed the Court of Appeals and the trial court, leaving in place the $183,372 jury verdict for Albert Lockwood against Raymark Industries.
• Berry v. Crown Cork & Seal Co., Inc. (Washington Court of Appeals, 1st Division, 2000). The Court of Appeals reversed summary judgment for Saberhagen Holdings and remanded for trial, holding the plaintiffs (Berry's estate and widow) raised a genuine issue of fact on exposure to Brower-supplied products.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

ROGER BOTTS and CAROL BOTTS, Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA, Defendant-Appellee.

No. 14-35007

Argued and Submitted May 2, 2016 — Seattle, Washington.

Filed May 16, 2016.

United States Court of Appeals, Ninth Circuit.

Before: GRABER and BERZON, Circuit Judges, and CURIEL,[**] District Judge.

NOT FOR PUBLICATION

MEMORANDUM[*]

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, 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 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 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.

[**] The Honorable Gonzalo P. Curiel, District Judge for the U.S. District Court for the Southern District of California, sitting by designation.

[*] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. [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.

Sources

• The opinion on Google Scholar
• California asbestos laws
• California asbestos exposure sites