William G. Stephens; Norma Stephens, husband and wife, Plaintiffs-Appellants,
Union Pacific Railroad Company, a Delaware corporation, Defendant-Appellee.
and Submitted July 9, 2019 Seattle, Washington
from the United States District Court for the District of
Idaho D.C. No. 1:17-cv-00385-BLW, B. Lynn Winmill, Chief
District Judge, Presiding
Matthew P. Bergman (argued) and Ruby K. Aliment, Bergman
Draper Oslund, Seattle, Washington, for
M. Crane (argued), Viiu Spangler Khare, Barbara S. Hodous,
and Ryan T. Moore, Berkes Crane Robinson & Seal LLP, Los
Angeles, California, for Defendant-Appellee.
Before: Paul J. Watford and Eric D. Miller, Circuit Judges,
and Barbara Jacobs Rothstein, [*] District Judge.
Law / Negligence
panel affirmed the district court's summary judgment in
favor of Union Pacific Railroad in a plaintiff's action
alleging that secondary exposure to asbestos exposure caused
his mesothelioma, and asserting negligence and related claims
under Idaho law.
alleged that his father worked at a Union Pacific roadhouse
where he was exposed to asbestos, and that his father carried
the asbestos home and exposed plaintiff to asbestos.
Idaho law, the panel held that plaintiff failed to create a
genuine issue of fact on whether any asbestos exposure that
may have occurred was a substantial factor in causing his
mesothelioma. The panel held that in the context of asbestos
claims, the substantial-factor test requires
"demonstrating that the injured person had substantial
exposure to the relevant asbestos for a substantial period of
time." McIndoe v. Huntington Ingalls, Inc., 817
F.3d 1170, 1176 (9th Cir. 2016).
effort to establish causation, plaintiff relied on the
testimony of two experts. The panel agreed with the district
court that those opinions were insufficient. The panel held
that the experts had no basis to conclude that plaintiff was
exposed to asbestos with any regularity. The panel rejected
plaintiff's assertion that Union Pacific had waived any
objection to the admissibility of one of the expert's
testimony. The panel concluded that because plaintiff failed
to establish that he was regularly exposed to asbestos
attributable to Union Pacific, plaintiff could not create a
genuine issue of material fact whether his secondary exposure
was a substantial factor in causing his disease, and he could
not prevail on his negligence claim.
MILLER, CIRCUIT JUDGE
Stephens spent nearly 20 years working with
asbestos-containing products while employed at lumber mills
in Oregon. After being diagnosed with mesothelioma, he
brought an action in Oregon state court against his former
employers and other defendants that manufactured or used
asbestos-containing products, including the Union Pacific
Railroad Company. Stephens's claims against Union Pacific
were dismissed for lack of personal jurisdiction, and he
ultimately settled the litigation in exchange for a
substantial payment from the other defendants.
then brought the present action against Union Pacific in the
District of Idaho. In the late 1940s and early 1950s, when
Stephens was a child, his father worked at a Union Pacific
roundhouse in Weiser, Idaho. Stephens alleges that his father
was exposed to asbestos at work and then carried asbestos
home on his clothes, exposing the rest of his family.
According to Stephens, that secondary asbestos exposure
caused his mesothelioma. Invoking the district ...