Curtis v. Abb Incorporated (2015)

Our plain-English summary of Curtis v. Abb Incorporated (U.S. Court of Appeals, Ninth Circuit, November 13, 2015).

Christopher Curtis sued, individually and as representative of the estate of Charles C. Curtis, who had mesothelioma. The defendants were ABB, Eaton and Schneider Electric, makers of electrical components. The district court granted summary judgment for the defendants. Before he died, Charles Curtis testified in a deposition that he could identify the defendants' products, and the asbestos in them, by color and swirl designs. He said he breathed asbestos released when he repaired and sanded the components, many times over the years. The Ninth Circuit held the district court was wrong to find no triable issue on exposure. It said the lower court wrongly treated Curtis as having limited his work to cleaning and sanding metal parts without asbestos. His arguably inconsistent testimony was not conclusive against him, and any discrepancies were for a factfinder to resolve. The court also found the lower court overlooked his testimony about dust from cleaning destroyed parts encased in asbestos-containing material. Because the record did not show whether causation was decided on other grounds, the court vacated and remanded, and awarded costs to the plaintiff.

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: November 13, 2015
• Docket: Nos. 13-56976, 13-56977, 13-56978
• Stage: Appeal from summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: Washington

Outcome. The Ninth Circuit vacated the district court's summary judgment for ABB, Eaton and Schneider Electric and remanded for further proceedings, ruling for plaintiff Christopher Curtis on the exposure and product identification question.

What the court held. A plaintiff must show exposure to the defendant's product and that the product was a substantial factor in causing the injury. Arguably inconsistent deposition testimony is not conclusive against the nonmovant at summary judgment, and discrepancies raise credibility issues for the factfinder.

Issues decided: Causation, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Charles C. Curtis: mesothelioma; died

The defendants

• ABB Incorporated, successor in interest to ITE Imperial Co., FKA ITE Circuit Breaker Company (manufacturer)
• Eaton Corporation, successor in interest to Cutler Hammer (manufacturer)
• Schneider Electric USA, Inc., FKA Square D. Company (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Rutherford v. Owens-Illinois, Inc. (California Supreme Court, 1997). The California Supreme Court reversed the Court of Appeal's judgment, which had ordered a new trial for Owens-Illinois. It held that the burden-shifting instruction was error but harmless, and that the tobacco company defense issue was controlled by Richards, so the plaintiffs' judgment against Owens-Illinois was not overturned.

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.

CHRISTOPHER C. CURTIS, individually and as Personal Representative of the Estate of Charles C.

Curtis, Plaintiff-Appellant,

v.

ABB INCORPORATED, individually and as successor in interest to ITE Imperial Co., FKA ITE

Circuit Breaker Company, Defendant-Appellee,

CHRISTOPHER C. CURTIS, individually and as Personal Representative of the Estate of Charles C.

Curtis, Plaintiff-Appellant,

v.

EATON CORPORATION, as successor in interest to Cutler Hammer, Defendant-Appellee.

CHRISTOPHER C. CURTIS, individually and as Personal Representative of the Estate of Charles C.

Curtis, Plaintiff-Appellant,

v.

SCHNEIDER ELECTRIC USA, INC., FKA Square D. Company, Defendant-Appellee.

Nos. 13-56976, 13-56977, 13-56978.

Argued and Submitted October 20, 2015 — Pasadena, California.

Filed November 13, 2015.

United States Court of Appeals, Ninth Circuit.

Before: PREGERSON and CALLAHAN, Circuit Judges and BASTIAN,[**] District Judge.

NOT FOR PUBLICATION

MEMORANDUM[*]

Plaintiff-Appellant Christopher Curtis ("Plaintiff"), individually and as personal representative of the estate of decedent Charles C. Curtis ("Curtis"), appeals from the district court's grant of summary judgment in favor of the Defendant-Appellees ABB, Inc., Eaton Corporation, and Schneider Electric USA, Inc. ("Defendants"). A district court's decision to grant summary judgment is reviewed de novo. Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir. 2011). We have jurisdiction under 28 U.S.C. § 1291. We vacate the district court's summary judgment and remand.

1. In order to prevail in products liability cases, a plaintiff must establish, at minimum, (1) the plaintiff was exposed to the defendant's product, and (2) the product was a substantial factor in causing the injury suffered. Lindstrom v. A-C Product Liability Trust, 424 F.3d 488, 492 (6th Cir. 2005); Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1219-20, 1223 (Cal. 1997).

2. The district court erred in granting summary judgment to the extent that it found Plaintiff failed to raise a triable issue of fact that Curtis was exposed to asbestos released from Defendants' products. Prior to his death, Curtis testified in his deposition that he could visually identify the Defendants' products, and the asbestos in their electrical components by their color and swirl designs. Curtis testified that he would inhale asbestos released from Defendants' electrical components when he repaired and sanded them. He further testified that he repaired Defendants' products over the years "many, many times," "too many to count."

The district court also erred in finding that Curtis "clarified" that the work he performed was confined to cleaning and sanding the metal portions of Defendants' electrical components which did not contain asbestos. Although Curtis gave arguably inconsistent deposition testimony on this point, such testimony is not conclusive against him at summary judgment. See Emeldi v. Univ. of Oregon, 698 F.3d 715, 730, n.9 (9th Cir. 2012). Rather, any discrepancies should be resolved in favor of the nonmoving party at summary judgment, and raise issues of credibility for a factfinder to resolve. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Emeldi's holding is even more persuasive in the circumstances

here as the deponent, Curtis, is now deceased; a factfinder will need to scrutinize his word choices in his preserved deposition testimony even more carefully than where the deponent is available for trial.[1]

The district court further erred by not considering Curtis's testimony that he inhaled dust after cleaning destroyed electrical parts that were encased in asbestos-containing material. Thus, viewing the facts in the light most favorable to Plaintiff, we hold that the district court erred in granting summary judgment on the ground that Plaintiff failed to raise a triable issue of fact that Curtis was exposed to asbestos released from Defendants' products.

3. Because the district court erred in finding that Plaintiff failed to raise a triable issue of asbestos exposure from Defendants' products, it also erred to the extent it relied on this finding to conclude that asbestos exposure from Defendants' products was not a substantial factor in causing Curtis's mesothelioma. However, it is not clear from the record whether the district court decided causation in Defendants' favor on a ground other than product identification, such as insufficient medical evidence linking Curtis's exposure to asbestos to his mesothelioma. Therefore, we remand this action to the district court for further proceedings. We express no opinion on whether Defendants may move for summary judgment on other grounds of insufficient causation besides product identification.

VACATED AND REMANDED.

Costs are awarded to Plaintiff-Appellant.

[**] The Honorable Stanley Allen Bastian, District Judge for the U.S. District Court for the Eastern District of Washington, sitting by designation.

[*] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. [1] In his opening and reply briefs, Plaintiff argued that the district court erred by not considering the deposition testimony of Danny Mangum. At oral argument, however, Plaintiff argued that reversal of summary judgment was appropriate without considering Mr. Mangum's testimony. Because we agree, we do not consider Mr. Mangum's testimony in our decision.

Sources

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