Varney v. Goodyear Tire & Rubber Company (2021)

Our plain-English summary of Varney v. Goodyear Tire & Rubber Company (U.S. Court of Appeals, Ninth Circuit, March 1, 2021).

Maria Varney sued Goodyear Tire & Rubber and several valve and pump makers, individually and as representative of the estate of her husband, Donald Varney, who had mesothelioma. She claimed his disease was caused by the defendants' asbestos products. The district court granted summary judgment to the defendants after ruling that a declaration from Mr. Varney was inadmissible as a dying declaration. The declaration said his mesothelioma came from the defendants' products. The Ninth Circuit reviewed that ruling. It found the district court had carefully reviewed the hearing evidence and did not abuse its discretion. The evidence did not show who prepared the declaration, where its details about the manufacturers and his exposure came from, whether he read it, or whether he had personal knowledge of its contents. His earlier interrogatory answers said only that he believed his attorneys had information about his exposure, which conflicted with the declaration. Mrs. Varney did not otherwise challenge summary judgment, which rested on lack of causation evidence without the declaration. The court affirmed. The appeal as to Ingersoll-Rand was administratively closed because of its bankruptcy.

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: March 1, 2021
• Docket: No. 19-35859
• 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• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.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 the defendants (Goodyear, Crosby Valve, John Crane, Flowserve, Weir Valves, Warren Pumps) against Maria Varney, holding the district court did not abuse its discretion in excluding Donald Varney's declaration.

What the court held. A declaration offered as a dying declaration was properly excluded where the evidence did not show the declarant had personal knowledge of its contents; the district court's factual findings were reviewed for clear error and its evidentiary ruling for abuse of discretion.

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

The people and their exposure

• Donald Varney: mesothelioma; died

The defendants

• Goodyear Tire & Rubber Company (manufacturer)
• Crosby Valve, LLC (manufacturer)
• John Crane, Inc. (manufacturer)
• Flowserve US, Inc. (manufacturer)
• Weir Valves & Controls USA Inc (manufacturer)
• Warren Pumps LLC (manufacturer)
• Ingersoll-Rand Company (manufacturer)

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.

MARIA VARNEY, Individually and as Personal Representative for the Estate of Donald Varney,

Plaintiff-Appellant,

v.

GOODYEAR TIRE & RUBBER COMPANY; CROSBY VALVE, LLC; JOHN CRANE, INC.; FLOWSERVE

US, INC.; WEIR VALVES & CONTROLS USA INC; WARREN PUMPS LLC; INGERSOLL-RAND

COMPANY, Defendants-Appellees, and

ALFA LAVAL, INC.; ARMSTRONG INTERNATIONAL, INC.; AURORA PUMP COMPANY; BLACKMER

PUMP COMPANY; BNS CO.; BW/IP INTERNATIONAL; CARRIER GLOBAL CORPORATION; CBS

CORPORATION; CLA-VAL COMPANY; CLARK-RELIANCE CORPORATION; CRANE CO.; CRANE

ENVIRONMENTAL, INC.; CROWN CORK & SEAL COMPANY INC.; DARIGOLD, INC.; ELLIOTT

TURBOMACHINERY CO. INC.; FMC CORPORATION; FRYER-KNOWLES, INC.; FRYER-KNOWLES,

INC.; GENERAL ELECTRIC COMPANY; THE GORMAN-RUPP COMPANY; GOULDS PUMPS LLC;

GRINNELL LLC; HOPEMAN BROTHERS, INC.; IMO INDUSTRIES, INC.; ITT, LLC; McNALLY

INDUSTRIES, INC.; METROPOLITAN LIFE INSURANCE COMPANY; NASH ENGINEERING

COMPANY; SB DECKING, INC.; STERLING FLUID SYSTEMS (USA) LLC; SUPERIOR-

LIDGERWOOD-MUNDY CORPORATION; TACO, INC.; UNIROYAL HOLDING, INC.; VIKING PUMP,

INC.; WM. POWELL COMPANY, Defendants.

No. 19-35859.

Submitted February 1, 2021[**] — San Francisco, California.

Filed March 1, 2021.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding, D.C. No. 3:18-cv-05105-RJB.

Before: SILER,[***] RAWLINSON, and BUMATAY, Circuit Judges.

NOT FOR PUBLICATION

MEMORANDUM[*]

Appellant Maria Varney appeals the district court's evidentiary ruling that a declaration from her husband, Donald Varney, stating that his mesothelioma was caused by products manufactured by Appellees,[1] was inadmissible as a dying declaration pursuant to Federal Rule of Evidence 804(b)(2). Mrs. Varney contends that the district court erred in holding that the evidence and testimony submitted during an evidentiary hearing did not sufficiently establish that Mr. Varney had personal knowledge of the declaration's contents.

Contrary to Mrs. Varney's assertions, the district court conducted a thorough review of the testimony, depositions, and statements submitted during the evidentiary hearing, and did not abuse its discretion in holding that the evidence did not establish who prepared the declaration, the source of the details concerning the manufacturers' liability and Mr. Varney's exposure to asbestos, that Mr. Varney read the declaration, or that Mr. Varney had personal knowledge of the declaration's contents. See Clare v. Clare, 982 F.3d 1199, 1201 (9th Cir. 2020) (articulating that "[w]e review evidentiary rulings for an abuse of discretion even when the rulings determine the outcome of a motion for summary judgment") (citation and internal quotation marks omitted); see also Endy v. Cty. of Los Angeles, 975 F.3d 757, 763 (9th Cir. 2020) (explaining that "affidavits or declarations supporting [an] opposition [to summary judgment] must be made on personal knowledge") (citation and internal quotation marks omitted).

The district court also properly determined that the testimony did not resolve the discrepancies between Mr. Varney's interrogatories that he "believe[d] [his] attorneys ha[d] information suggesting that [he] was exposed to the defendants' asbestos products," and details subsequently provided in Mr. Varney's declaration that he had personal knowledge of the specific products resulting in his asbestos exposure. As a result, Mrs. Varney fails to sufficiently establish that the district court clearly erred in its factual findings in support of its ruling that Mr. Varney's declaration was inadmissible as a dying declaration. See In re Nat'l Collegiate Athletic Ass'n Grant-In-Aid Cap Antitrust Litig., 958 F.3d 1239, 1252-53 (9th Cir. 2020) (explaining that "[u]nder clear error review, we must accept the district court's findings of fact unless we are left with the definite and firm conviction that a mistake has been committed") (citations and internal quotation marks omitted).[2] Beyond her evidentiary challenge, Mrs. Varney does not otherwise appeal the district court's entry of summary judgment in favor of Appellees because, without Mr. Varney's declaration, she was unable to demonstrate the requisite causation in support of her claims.

AFFIRMED.

[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). [***] The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. [*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. [1] On December 17, 2020, we administratively closed the appeal as to Ingersoll-Rand Company due to its pending bankruptcy proceedings and imposition of the automatic stay.

Based on the parties' stipulation, Air & Liquid Corp. has been voluntarily dismissed from this appeal.

[2] The district court's factual findings also support its ruling that the declaration was not admissible under Federal Rule of Evidence 807(a). See Fed. R. Evid. 807(a)(1) (excluding statement from hearsay rule if "the statement is supported by sufficient guarantees of trustworthiness-after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement"); see also United States v. $11,500.00 in U.S. Currency, 710 F.3d 1006, 1014 n.3 (9th Cir. 2013) (explaining that "a statement qualifying under the residual exception [provided in Fed. R. Evid. 807(a)(1)] must have equivalent circumstantial guarantees of trustworthiness") (citation and internal quotation marks omitted).

Sources

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