Leslie Jack v. Dco, LLC
837 F. App’x 421
| 9th Cir. | 2021Background:
- Plaintiffs Leslie and David Jack appealed on behalf of their son Patrick, who died of asbestos-related mesothelioma; defendants were Union Pacific Railroad (UP), Ford Motor Co., and DCo, LLC.
- Claims: (1) premises/take-home exposure against UP (Patrick allegedly encountered “white chalky material” on UP property and may have been exposed via his father’s clothes before 1955); (2) post-sale warning failure against Ford and DCo for products that allegedly exacerbated exposure.
- District court granted summary judgment for UP and granted judgment as a matter of law for Ford and DCo; Jacks appealed and sought certification of a question to the Washington Supreme Court (denied).
- Appellate review was de novo for summary judgment, JMOL, and state-law interpretation.
- The Jacks’ evidence consisted primarily of Patrick’s testimony about seeing a “white chalky material” and an expert opinion that relied on Patrick’s testimony and a study of a different railroad system; expert conceded lack of pre-1955 literature showing family-member asbestos disease.
- Court found insufficient evidence both that asbestos was present at UP’s premises and that harm to family members from take-home exposure was foreseeable pre-1955; similarly, insufficient evidence that a post-sale warning from Ford/DCo would have prevented Patrick’s injury.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence shows asbestos present on UP premises and was a substantial factor in Patrick’s mesothelioma | Patrick saw “white chalky material”; expert connects that to asbestos and causation | Evidence is hearsay/insufficient; expert relied on unrelated study and plaintiff testimony | Evidence insufficient; no reasonable juror could infer asbestos presence or causation, summary judgment affirmed |
| Whether UP owed a duty for take-home exposure to family members (foreseeability) | UP should have foreseen family-member risk from workers’ contaminated clothes prior to 1955 | Harm to family members was not reasonably foreseeable before 1955 given lack of literature/evidence then | No duty: foreseeability not established pre-1955, summary judgment for UP proper |
| Whether manufacturers (Ford/DCo) had a duty to give post-sale warnings about third-party products that exacerbate original risk | Manufacturers should warn about post-sale interactions that increase risk | Even if duty existed, plaintiffs failed to prove a warning would have prevented injury | JMOL for Ford/DCo affirmed: plaintiffs failed to show an adequate warning would have changed conduct |
| Whether appellate court should certify a question to the Washington Supreme Court | Appellants asked for certification on state-law issues | Defendants opposed certification; appellate court exercised discretion | Motion to certify denied |
Key Cases Cited
- Rose v. A.C. & S., Inc., 796 F.2d 294 (9th Cir. 1986) (de novo review of summary judgment and state-law interpretation)
- Reese v. County of Sacramento, 888 F.3d 1030 (9th Cir. 2018) (de novo review standard for renewed JMOL)
- Lockwood v. AC & S, Inc., 744 P.2d 605 (Wash. 1987) (en banc) (substantial-factor causation in asbestos cases)
- Maltman v. Sauer, 530 P.2d 254 (Wash. 1975) (en banc) (duty includes foreseeability analysis)
- Keller v. City of Spokane, 44 P.3d 845 (Wash. 2002) (en banc) (duty requires assessing who owes duty and to whom based on foreseeability)
- Morgan v. Aurora Pump Co., 248 P.3d 1052 (Wash. Ct. App. 2011) (plaintiff must show that warnings would have caused avoidance measures)
- Ayers ex rel. Ayers v. Johnson & Johnson Baby Prods. Co., 818 P.2d 1337 (Wash. 1991) (en banc) (causation requires evidence of specific measures plaintiff would have taken)
- Lakeside-Scott v. Multnomah Cnty., 556 F.3d 797 (9th Cir. 2009) (JMOL appropriate where verdict would rest on speculation)