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Stephens v. Union Pacific Railroad Co.

United States Court of Appeals, Ninth Circuit

August 28, 2019

William G. Stephens; Norma Stephens, husband and wife, Plaintiffs-Appellants,
v.
Union Pacific Railroad Company, a Delaware corporation, Defendant-Appellee.

          Argued and Submitted July 9, 2019 Seattle, Washington

          Appeal 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 Plaintiffs-Appellants.

          Steven 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.

         SUMMARY [**]

         Idaho Law / Negligence

         The 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.

         Plaintiff 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.

         Under 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).

         In an 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.

          OPINION

          MILLER, CIRCUIT JUDGE

         William 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.

         Stephens 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 ...


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