Sequira v. 3M Company (2015)

Our plain-English summary of Sequira v. 3M Company (U.S. Court of Appeals, Ninth Circuit, October 27, 2015).

Joni Sequira sued as successor-in-interest to Paul Olds, who had mesothelioma. She sued 3M, Lockheed Martin and United Technologies (successor to Pratt & Whitney). Olds claimed that blankets and valves in the J-33 engine of the Lockheed F-80 aircraft, and asbestos from Pratt & Whitney engines, released asbestos into the air where he worked. The district court granted summary judgment to Lockheed and United Technologies, and Sequira appealed. The Ninth Circuit affirmed. For Lockheed, affidavits showed the United States approved reasonably precise specifications requiring the asbestos-containing government-furnished equipment, the equipment conformed to them, and the government knew of asbestos hazards by 1944. Sequira offered no competent evidence in response, and she did not challenge the exclusion of her only declaration. For United Technologies, she offered no expert evidence that Pratt & Whitney engine asbestos was a substantial factor in causing the mesothelioma, as California law requires. The court would not consider arguments raised for the first time on appeal. The decision is unpublished.

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: October 27, 2015
• Docket: Nos. 13-56921, 14-55383
• Stage: Appeal from summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.

Outcome. The Ninth Circuit affirmed summary judgment for Lockheed Martin (government contractor defense) and for United Technologies, successor to Pratt & Whitney (no expert evidence of causation), against plaintiff Joni Sequira.

What the court held. A defendant is entitled to summary judgment on the government contractor defense when the government approved reasonably precise specifications, the equipment conformed to them, and the government knew the hazards as well as the contractor did. A California mesothelioma plaintiff must offer expert evidence that exposure was a substantial factor in causing the disease, and an issue not raised in the district court will not be reviewed on appeal.

Issues decided: Causation, Expert Testimony, Government Contractor Defense and Removal.

The people and their exposure

• Paul Olds: mesothelioma

The defendants

• Lockheed Martin Corporation (manufacturer)
• United Technologies Corporation, successor-in-interest to Pratt & Whitney (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Lineaweaver v. Plant Insulation Co. (California Court of Appeal, 1st Appellate District, 1st Division, 1995). The Court of Appeal reversed the nonsuit for Plant Insulation as to Lineaweaver and remanded for retrial, but affirmed the nonsuit against King and Ward for insufficient evidence of exposure to Plant-supplied Pabco.

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.

JONI SEQUIRA, successor-in-interest to PAUL OLDS, Plaintiff-Appellant,

v.

3M COMPANY, AKA Minnesota Mining and Manufacturing Company, Defendant, and

LOCKHEED MARTIN CORPORATION, DBA Lockheed Martin Aeronautics, FKA Lockheed Martin

Tactical Systems, Defendant-Appellee.

JONI SEQUIRA, successor-in-interest to PAUL OLDS, Plaintiff-Appellant,

v.

3M COMPANY, AKA Minnesota Mining and Manufacturing Company, Defendant, and

UNITED TECHNOLOGIES CORPORATION, sued individually and as successor-in-interest to Pratt

and Whitney, Defendant-Appellee.

Nos. 13-56921, 14-55383.

Argued and Submitted August 31, 2015 — Pasadena, California.

Filed October 27, 2015.

United States Court of Appeals, Ninth Circuit.

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

NOT FOR PUBLICATION

MEMORANDUM[*]

1. The district court did not err in granting summary judgment to Lockheed based on the government contractor defense. See Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988) (design defect claims); Getz v. Boeing Co., 654 F.3d 852, 866 (9th Cir. 2011) (failure-to-warn claims). Lockheed introduced affidavits from Valentino Jimenez and Deborah Parker establishing the elements of this affirmative defense. Sequira offered no competent evidence to rebut it. The affidavits show that the United States approved "reasonably precise specifications" requiring Lockheed to use asbestos-containing "Government Furnished Equipment" in the F-80 aircraft, including a J-33 engine and its integrated subassemblies. See Boyle, 487 U.S. at 512. These subassemblies contained blankets and valves, which Paul Olds claimed released asbestos particles into the air where he worked. Moreover, the equipment conformed to the government's specifications because Lockheed complied with all its directives for constructing the F-80 aircraft, including the use of specific warnings. See Getz, 654 F.3d at 864, 866. Finally, the United States knew about the hazards of asbestos as early as 1944—well before Olds allegedly encountered it. Therefore, there were no dangers known to Lockheed but not to the United States. See Boyle, 487 U.S. at 512.

Sequira attempted to introduce the declaration of Mark Thomson to counter Lockheed's assertions. But the district court excluded the Thomson declaration for lack of foundation and because Thomson "manufacture[d] . . . factual disputes." Sequira does not challenge this ruling on appeal and is thus left without any evidence to contest Lockheed's affirmative defense. Accordingly, "there is no genuine dispute as to any material fact" and Lockheed "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

2. UTC, as successor-in-interest to Pratt & Whitney, is also entitled to summary judgment because Sequira didn't present a prima facie case of asbestos exposure. Sequira didn't offer competent expert evidence showing that the asbestos from the Pratt & Whitney engines was a "substantial factor" in causing his mesothelioma. See Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1219 n.11 (Cal. 1997) (citing Lineaweaver v. Plant Insulation Co., 37 Cal. Rptr. 2d 902, 906 (Cal. Ct. App. 1995)) (directing mesothelioma and lung cancer plaintiffs to introduce expert testimony to show that exposure was a "substantial factor" in causing their injuries).

Having admitted that Olds failed to present competent evidence or even address the point before the district court, Sequira can't argue the "substantial factor" issue here. We don't review issues raised for the first time on appeal, much less factual ones. Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1004 (9th Cir. 2002).

AFFIRMED.

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

Sources

• The opinion on Google Scholar