NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

ROGER BOTTS and CAROL BOTTS,

 Plaintiffs - Appellants,

 v.

UNITED STATES OF AMERICA,

 Defendant - Appellee.

No. 14-35007

D.C. No. 2:12-cv-01943-JLR

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

James L. Robart, District Judge, Presiding

Argued and Submitted May 2, 2016 

Seattle, Washington

Before: GRABER and BERZON, Circuit Judges, and CURIEL,** District Judge. 

 

Roger and Carol Botts appeal the district court’s grant of summary judgment

to the government. We have jurisdiction under 28 U.S.C. §§ 1346(b), 2671-2680,

FILED

MAY 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.

 ** The Honorable Gonzalo P. Curiel, District Judge for the U.S. District

Court for the Southern District of California, sitting by designation.

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and we reverse and remand for further proceedings consistent with this disposition. 

The district court erred in finding that Botts failed to produce evidence from

which a finder of fact could reasonably conclude that asbestos exposure at the

Puget Sound Naval Shipyard (the “Shipyard”) resulting from violations of the

Navy’s mandatory rules after March 1970 was a substantial factor in causing Roger

Botts’ mesothelioma. See Lockwood v. AC & S, Inc., 744 P.2d 605, 613 (Wash.

1987).

The district court’s view of the evidence was unduly restrictive in several

ways. First, the district court found that the record did not establish the extent to

which asbestos exposure at the Shipyard was due to violations of the Navy’s

asbestos containment regulations. However, evidence in the record shows that

Navy personnel did not comply with the containment regulations after they came

into effect in March 1970, and that, had the containment regulations been complied

with, the volume and spread of asbestos fibers on ships due to just removal and

cleanup activities would have been reduced by 90%. 

Second, the district court discounted Botts’ Shipyard-wide asbestos

exposure. However, there is evidence that asbestos-related work, including

asbestos removal, installation, and fabrication, took place both on board ships and

around the Shipyard while Botts made deliveries to the shipyard from 1970 to

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1976. Under Washington law, expert “testimony that asbestos fibers have the

ability to disperse over an entire shipyard is sufficient evidence from which it

could be inferred that” an individual who worked at that shipyard during times that

asbestos products were used “breathed the asbestos regardless of whether [the

individual] worked on the ships or only in the shipyard.” Berry v. Crown Cork &

Seal Co., 14 P.3d 789, 795 (Wash. Ct. App. 2000). Here, Dr. Heyer so testified,

and the United States has not challenged the validity or admissibility of his expert

testimony. See Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.

1995); 

Third, the district court found that the time frame of exposure was only a

one-month period from February to March of 1971. However, violations of the

Navy’s asbestos containment regulations began in March 1970, and there is

evidence that, from 1970 to 1976, Botts spent as much as 20% of his working time

each year at the Shipyard. There was expert testimony that working for less than a

year in total in a shipyard during this time period could result in anywhere between

a two- to eight-fold increase in the risk of developing mesothelioma due to

asbestos exposure. 

Thus, a finder of fact could have reasonably concluded that Botts provided

sufficient evidence of causation. See Berry, 14 P.3d at 795; Allen v. Asbestos

3
Corp., 157 P.3d 406, 409–10 (Wash. Ct. App. 2007).1 Accordingly, we reverse the

district court’s grant of summary judgment and remand for further proceedings. 

REVERSED AND REMANDED.

1 McIndoe v. Huntington Ingalls Inc., Nos. 13-56762, 13-56764, 2016 WL

1253903 (9th Cir. Mar. 31, 2016), does not command otherwise. Not only was

McIndoe decided under maritime and California law, rather than the Washington

law applicable here, but in McIndoe plaintiff failed to provide any evidence as to

the extent of his exposure to defendants’ asbestos, especially with regard to the

amount and duration of the exposure. Id. at *4–5. McIndoe also rejected the only

other causation evidence McIndoe provided—expert testimony that “every

exposure to asbestos above a threshold level is necessarily a substantial factor in

the contraction of asbestos-related diseases.” Id. at *5. McIndoe expressly

distinguished other cases, like this one, that do not rely on the same type of

“sweeping testimony” amounting to a legal conclusion. See id. & n.8.

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