Jack v. Dco, LLC (2021)

Our plain-English summary of Jack v. Dco, LLC (U.S. Court of Appeals, Ninth Circuit, February 22, 2021).

Patrick Jack developed mesothelioma and died. His representative Leslie Jack and David Jack sued under Washington law in federal court. They sued Union Pacific Railroad, Ford Motor Company and DCo, LLC. The claim against Union Pacific was a take-home exposure claim: Patrick was said to have been exposed through his father's clothes. The claims against Ford and DCo were that they failed to warn after sale. The district court granted summary judgment for Union Pacific. After trial it granted judgment as a matter of law for Ford and DCo. The Ninth Circuit affirmed in an unpublished memorandum. On Union Pacific, it found too little evidence that asbestos was present on the railroad's premises. The only support was Patrick's testimony about "white chalky material" and an expert opinion built on that testimony and on a study of a different railway. It also held that the danger to workers' family members was not foreseeable before 1955, so Union Pacific owed Patrick no duty. On Ford and DCo, the evidence did not show that an adequate post-sale warning would have led Patrick to avoid injury. The court also denied a motion to certify questions to the Washington Supreme 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: February 22, 2021
• Docket: No. 19-35563
• Stage: Appeal from summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: Washington

Outcome. The Ninth Circuit affirmed summary judgment for Union Pacific Railroad and judgment as a matter of law for Ford and DCo, so the Jacks lost on all claims.

What the court held. Under Washington law, a take-home exposure claim fails without evidence of asbestos on the premises and without evidence that the risk to a worker's family was foreseeable at the relevant time. A post-sale failure-to-warn claim fails without specific evidence that an adequate warning would have led the plaintiff to avoid injury.

Issues decided: Causation, Expert Testimony, Failure to Warn, Premises Owner Liability, Trial Procedure and Discovery, Take-Home Exposure.

The people and their exposure

• Patrick Jack (family member): mesothelioma; died

The defendants

• Union Pacific Railroad Company (railroad)
• Ford Motor Company (manufacturer)
• DCo, LLC (manufacturer)

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.
• Morgan v. Aurora Pump Co. (Washington Court of Appeals, 1st Division, 2011). The Court of Appeals reversed the trial court's summary judgment dismissal of the Morgans' claims against the pump and valve makers (Aurora, Buffalo, IMO, Warren, Weir and Powell) and remanded for trial.

Later decisions citing this one

3 later decisions in our library cite this one:

• Perkins v. United States (U.S. District Court, Western District of Washington, 2024). The district court denied without prejudice the United States' motion to dismiss under the FTCA discretionary function exception and denied its motion for summary judgment, leaving the plaintiff's negligence claim for bench trial.
• Perkins v. United States (U.S. District Court, Western District of Washington, 2024). After a bench trial, the court entered judgment for the United States and against the plaintiff, finding she did not prove that actionable Navy conduct caused Geraldine Perkins's mesothelioma.
• Spurlin v. Air & Liquid Systems Corporation (U.S. District Court, Southern District of California, 2021). The court granted Tate Andale's summary judgment motion and all defendants' motion on punitive damages and loss of consortium, but denied the other equipment manufacturers' motion on duty to warn, causation and the government contractor defense, and on plaintiffs' cross-motion granted judgment for the Spurlins only on the sophisticated purchaser defense.

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.

LESLIE JACK, individually and as Personal Representative of Patrick Jack; DAVID JACK,

individually, Plaintiffs-Appellants,

v.

DCO, LLC, FKA Dana Companies, LLC; etal., Defendants-Appellees, and

BORG-WARNER MORSE TEC LLC, sued individually and as successor-in-interest to Borg-Warner

Corporation, Defendant.

No. 19-35563.

Argued and Submitted February 2, 2021 — Seattle, Washington.

Filed February 22, 2021.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Western District of Washington; James L. Robart, District Judge, Presiding, D.C. No. 2:17-cv-00537-JLR.

Before: GRABER, McKEOWN, and PAEZ, Circuit Judges.

NOT FOR PUBLICATION

MEMORANDUM[*]

Leslie and David Jack (the "Jacks") appeal the district court's grant of summary judgment for Union Pacific Railroad Company ("UP") and grant of post-trial motions for judgment as a matter of law for Ford Motor Company ("Ford") and DCo, LLC ("DCo") in an action under Washington law arising out of Patrick Jack's ("Patrick") development of, and ultimate death from, asbestos-related mesothelioma. The parties are familiar with the facts, so we discuss them below only as relevant. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.[1]

We review the district court's orders de novo. Rose v. A.C. & S., Inc., 796 F.2d 294, 296 (9th Cir. 1986) (summary judgment); Reese v. County of Sacramento, 888 F.3d 1030, 1036 (9th Cir. 2018) (renewed motion for judgment as a matter of law). We also review de novo the district court's interpretation of state law. Rose, 796 F.2d at 296. The Jacks did not present evidence sufficient to raise a triable issue of fact that asbestos was present on UP's premises, that Patrick or his father actually encountered asbestos, and that exposure was a "substantial factor" causing Patrick's mesothelioma. See Lockwood v. AC & S, Inc., 744 P.2d 605, 623 (Wash. 1987) (en banc). No jury could have reasonably inferred that asbestos was present at UP's premises on this record, where the Jacks rely on Patrick's testimony that he saw "white chalky material" on UP's premises and Dr. Brodkin's opinion, which in turn was based on Patrick's testimony and a study of a different railway system for a different case.

Even if asbestos were present at UP's premises, the take-home exposure claim additionally fails on legal duty. Under Washington law, "duty encompasses the concept of foreseeability." Maltman v. Sauer, 530 P.2d 254, 258 (Wash. 1975) (en banc). Washington courts look to evidence specifically addressing the foreseeability of risks to someone in the plaintiff's position. See Keller v. City of Spokane, 44 P.3d 845, 848 (Wash. 2002) (en banc) ("a court must decide not only who owes the duty, but also to whom the duty is owed. . . .").

Here, the Jacks raise insufficient evidence for a reasonable trier of fact to conclude that the hazards of take-home asbestos exposure to workers' family members were or should have been foreseeable to UP before 1955, the last date when Patrick could have been exposed via his father's clothes. The Jacks' expert conceded that UP would have found "practically nothing in print describing specific cases" of family-member exposure before 1955, and that "[s]tudies on the occurrence of asbestos disease that included family members of asbestos-exposed workers were not published until the 1960s." Because the harm to workers' family members was not foreseeable, UP did not owe a duty to Patrick and summary judgment was appropriate.

As to Ford and DCo, judgment as a matter of law on the post-sale warning claim was proper. Even if Washington law countenanced the existence of a manufacturer's duty to warn of the dangers of post-sale exposures to a third party's products that exacerbate the original risk, the Jacks do not present evidence sufficient to meet their burden to prove that an adequate post-sale warning from Ford and DCo, whatever its scope, would have caused Patrick to avoid injury. See Morgan v. Aurora Pump Co., 248 P.3d 1052, 1056 (Wash. Ct. App. 2011). Analogous Washington cases rest on evidence addressing the specific measures plaintiffs would have taken to avoid harm. See e.g., Ayers ex rel. Ayers v. Johnson & Johnson Baby Prods. Co., 818 P.2d 1337, 1340-42 (Wash. 1991) (en banc). Patrick's deposition testimony regarding unspecified "precautions" he would have taken did not meet this bar. The lack of sufficiently specific evidence here would have left the trier of fact to speculate precisely how, and whether, Patrick would have altered his conduct because of a post-sale warning from Ford and DCo. See Lakeside-Scott v. Multnomah Cnty., 556 F.3d 797, 802-03 (9th Cir. 2009) (judgment as a matter of law "is appropriate when the jury could have relied only on speculation to reach its verdict").

AFFIRMED.

[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. [1] We also deny Appellants' Motion to Certify Questions to the Washington State Supreme Court (Dkt. 46).

Sources

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