9th Circuit Affirms Summary Judgement

SAN FRANCISCO – The 9th Circuit U.S. Court of Appeals has affirmed awards of summary judgment to two asbestos defendants, finding in part that one of the defendants had provided enough evidence to support its reliance on the government contractor defense.

In the Oct. 27 opinion, the 9th Circuit also found no fault with the federal court’s decision that asbestos from engines was not a substantial factor in causing the plaintiff’s mesothelioma.

Paul Olds asserted the claims, contending that he was exposed to asbestos while working as a jet propulsion mechanic in the U.S. Air Force for 20 years and, later, as a refrigeration mechanic and supervisor at a truck rental facility for more than 10 years.

Lockheed Martin Corp. had moved for summary judgment, arguing that the government contractor defense barred the claims. The federal court agreed, prompting the instant appeal.

In addressing the dispute, the 9th Circuit sided with the defendant, however, saying that while the defendant had proffered evidence supporting the affirmative defense, the plaintiff offered “no competent evidence to rebut it.”

“The affidavits show that the U.S. approved ‘reasonably precise specifications’ requiring Lockheed to use asbestos-containing ‘Government Furnish Equipment’ in the F-80 aircraft, including a J-33 engine and its integrated subassemblies,” the court explained. “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. Finally, the U.S. 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 U.S.”

The appellate court also found no fault with the federal court’s decision to exclude a declaration proffered on behalf of the plaintiff, additionally noting that the plaintiff had chosen not to challenge the court’s finding that the declaration “manufactured factual disputes.”

The 9th Circuit also upheld an award of summary judgment entered in favor of UTC, concluding that the plaintiff “didn’t present a prima facie case of asbestos exposure.”

“[The plaintiff] didn’t offer competent expert evidence showing that the asbestos from the Pratt & Whitney engines was a ‘substantial factor’ in causing his mesothelioma,” the court said.

Sequira v. 3M Co., et al., Nos. 13-56921 and 14-55383 (9th Cir.)

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Date: November 5, 2015

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