Joni Sequira v. Lockheed Martin Corp , 621 F. App'x 458 ( 2015 )

FILED
NOT FOR PUBLICATION
OCT 27 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONI SEQUIRA, successor-in-interest No. 13-56921
to PAUL OLDS,
D.C. No. 2:12-cv-08539-R-MRW
Plaintiff - Appellant,
v. MEMORANDUM*
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 No. 14-55383
to PAUL OLDS,
D.C. No. 2:12-cv-08539-R-MRW
Plaintiff - Appellant,
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
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.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted August 31, 2015
Pasadena, California
Before: KOZINSKI, O’SCANNLAIN and BYBEE, Circuit Judges.
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.
page 3
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).
page 4
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.