John H. Boyd, Iii v. Warren Pumps, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN H. BOYD, III,
Plaintiff - Appellant,
v.
WARREN PUMPS, LLC,
Defendants - Appellees.
No. 13-56975
D.C. No. 2:13-cv-00436-DSF-
MRW
MEMORANDUM*
JOHN H. BOYD, III,
Plaintiff - Appellant,
v.
AIR & LIQUID SYSTEMS
CORPORATION, sued individually and as
successor-in-interest to Buffalo Pumps,
Inc.,
Defendant - Appellee.
No. 13-57018
D.C. No. 2:13-cv-00436-DSF-
MRW
Appeals from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
FILED
JUN 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Submitted April 5, 2016**
Resubmitted June 14, 2016
Pasadena, California
Before: SILVERMAN and GRABER, Circuit Judges, and EZRA,*** District Judge.
John H. Boyd, III, as the representative of plaintiff and appellant Captain
John H. Boyd, Jr. (deceased),1 appeals the district court’s summary judgment in
favor of Warren Pumps, LLC, and Air and Liquid Systems Corporation (successor
in interest to Buffalo Pumps, Inc.) in this diversity products liability action alleging
that exposure to asbestos from Appellees’ products during Captain Boyd’s service
onboard the United States Navy’s USS Gainard and USS McCain in the 1950s
caused Captain Boyd to develop mesothelioma. We have jurisdiction under 28
U.S.C. § 1291. Reviewing the district court’s grant of summary judgment de novo,
McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016), we
affirm in part, reverse in part, and remand.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable David A. Ezra, Senior United States District Judge for
the District of Hawaii, sitting by designation.
1 Captain Boyd’s spouse, Mary Boyd, was also a plaintiff below.
Because no representative came forward to substitute in for Mrs. Boyd, her claims
were dismissed with prejudice.
2

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Although voluntary dismissals without prejudice below generally do not
create appealable, final judgments, this appeal comes within an exception to the so-
called “single appeal rule,” which arises when, as here, a plaintiff voluntarily
dismisses without prejudice his remaining claims following entry of an adverse
partial judgment. Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548
F.3d 738, 747–48 (9th Cir. 2008). There is no evidence on the record before us of
an attempt to manipulate this court’s jurisdiction “by artificially ‘manufacturing’
finality.” James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1066 (9th Cir. 2002).
We affirm the district court’s grant of summary judgment for Appellees on
the ground that Captain Boyd failed to present evidence sufficient to link Buffalo
Pumps or Warren Pumps to asbestos-containing replacement parts to which
Captain Boyd was exposed during his service onboard the USS Gainard. Buffalo
Pumps and Warren Pumps may be held liable only for Captain Boyd’s exposure to
asbestos-containing products that were either manufactured or supplied by them.
O’Neil v. Crane Co., 266 P.3d 987, 1005 (Cal. 2012); see also Lindstrom v. A-C
Prod. Liab. Tr., 424 F.3d 488, 492 (6th Cir. 2005). Although the record on
summary judgment could support the conclusion that Buffalo and Warren may
have sold asbestos-containing replacement parts to some customers at some points
in time, it does not support a justifiable inference that either Buffalo Pumps or
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Warren Pumps provided the replacement parts to which Mr. Boyd was exposed
during his service on the USS Gainard. See United Steelworkers v. Phelps Dodge
Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc).
We reverse and remand, however, the grant of summary judgment for
Appellees on Captain Boyd’s claim of exposure onboard the USS McCain to
asbestos from spare packing and gaskets (“spare parts”) provided with original
pumps supplied to the Navy by Buffalo Pumps and Warren Pumps. The
circumstantial evidence raised more than a mere possibility that he was exposed to
asbestos-containing spare parts supplied by Buffalo and Warren Pumps—either
during the initial servicing of the Buffalo and Warren pumps onboard the McCain
or when those spare parts were removed and replaced during the second servicing
of those same pumps.
Captain Boyd’s deposition testimony, if believed by a jury, places Buffalo
and Warren pumps onboard the McCain, reflects that the usual maintenance
schedule for such pumps would have resulted in their repacking while Captain
Boyd was aboard, and provides evidence from which a jury could reasonably infer
that it was more likely than not that Captain Boyd was present when at least some
of those pumps were serviced for the first or the second time, which would have
involved “disturbing” the spare parts that had been supplied with the original
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pump. Additionally, as the district court noted, “there is some evidence that the
pumps and valves at issue were shipped from the manufacturer to the Navy with
asbestos packing or gaskets.” The record contains evidence that, upon
manufacture, an original Buffalo pump “typically would be supplied to a customer
with the appropriate packing and gaskets, which often contained asbestos,” and
that at least some Warren pumps were supplied to customers with spare asbestos
packing. Captain Boyd’s showing on this point is bolstered by the declarations of
retired Naval engineering officer Francis J. Burger, which state that, as Navy
equipment vendors, equipment manufacturers like Buffalo and Warren Pumps
more likely than not supplied with a new pump at the time it was sold to the United
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States Navy spare asbestos-containing packing and gaskets that were designed for
use with that original pump.2
Accordingly, viewing Captain Boyd’s evidence in the light most favorable to
him and drawing justifiable inferences from that evidence, a jury could reasonably
conclude that Captain Boyd was exposed onboard the McCain to asbestos-
containing spare packing and gaskets supplied by Buffalo and Warren Pumps. See
United Steelworkers, 865 F.2d at 1542.
AFFIRMED in part; REVERSED in part, and REMANDED.
Costs on appeal awarded to Plaintiff-Appellant.
2 To the extent that the district court’s ruling reflects that it discounted these
specific statements by Burger on the ground that Burger failed to provide a
foundation, the district court erred. See Wagner v. Cty. of Maricopa, 747 F.3d
1048, 1052 (9th Cir. 2013). The Burger declarations detail the extensive personal
and professional experience, knowledge, research and training on which Captain
Burger’s statements are based. As a result, Captain Burger laid an adequate
foundation for his assertion that original equipment manufacturers like Buffalo and
Warren Pumps more likely than not supplied asbestos-containing spare parts with a
new pump at the time it was sold to the Navy. The weight to be accorded Burger’s
statements is a jury question. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986); cf. also Christensen v. Ga.-Pac. Corp., 279 F.3d 807, 812–13 (9th Cir.
2002) (concluding that evidence of industry custom and practices was sufficient to
establish the applicable standard of care and whether that standard had been met).
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