Christopher C. Curtis, individually v. Abb Incorporated, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER C. CURTIS, individually
and as Personal Representative of the
Estate of Charles C. Curtis,
Plaintiff - Appellant,
v.
ABB INCORPORATED, individually and
as successor in interest to ITE Imperial
Co., FKA ITE Circuit Breaker Company,
Defendant - Appellee.
No. 13-56976
D.C. No. 2:12-cv-02014-PA-FMO
MEMORANDUM*
CHRISTOPHER C. CURTIS, individually
and as Personal Representative of the
Estate of Charles C. Curtis,
Plaintiff - Appellant,
v.
EATON CORPORATION, as successor in
interest to Cutler Hammer,
Defendant - Appellee.
No. 13-56977
D.C. No. 2:12-cv-02014-PA-FMO
FILED
NOV 13 2015
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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CHRISTOPHER C. CURTIS, individually
and as Personal Representative of the
Estate of Charles C. Curtis,
Plaintiff - Appellant,
v.
SCHNEIDER ELECTRIC USA, INC.,
FKA Square D. Company,
Defendant - Appellee.
No. 13-56978
D.C. No. 2:12-cv-02014-PA-FMO
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted October 20, 2015
Pasadena, California
Before: PREGERSON and CALLAHAN, Circuit Judges and BASTIAN,** District
Judge.
Plaintiff-Appellant Christopher Curtis (“Plaintiff”), individually and as
personal representative of the estate of decedent Charles C. Curtis (“Curtis”),
appeals from the district court’s grant of summary judgment in favor of the
Defendant-Appellees ABB, Inc., Eaton Corporation, and Schneider Electric USA,
** The Honorable Stanley Allen Bastian, District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.
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Inc. (“Defendants”). A district court’s decision to grant summary judgment is
reviewed de novo. Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir. 2011). We
have jurisdiction under 28 U.S.C. § 1291. We vacate the district court’s summary
judgment and remand.
1. In order to prevail in products liability cases, a plaintiff must
establish, at minimum, (1) the plaintiff was exposed to the defendant’s product,
and (2) the product was a substantial factor in causing the injury suffered.
Lindstrom v. A-C Product Liability Trust, 424 F.3d 488, 492 (6th Cir. 2005);
Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1219–20, 1223 (Cal. 1997).
2. The district court erred in granting summary judgment to the extent
that it found Plaintiff failed to raise a triable issue of fact that Curtis was exposed
to asbestos released from Defendants’ products. Prior to his death, Curtis testified
in his deposition that he could visually identify the Defendants’ products, and the
asbestos in their electrical components by their color and swirl designs. Curtis
testified that he would inhale asbestos released from Defendants’ electrical
components when he repaired and sanded them. He further testified that he
repaired Defendants’ products over the years “many, many times,” “too many to
count.”
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The district court also erred in finding that Curtis “clarified” that the work he
performed was confined to cleaning and sanding the metal portions of Defendants’
electrical components which did not contain asbestos. Although Curtis gave
arguably inconsistent deposition testimony on this point, such testimony is not
conclusive against him at summary judgment. See Emeldi v. Univ. of Oregon, 698
F.3d 715, 730, n.9 (9th Cir. 2012). Rather, any discrepancies should be resolved in
favor of the nonmoving party at summary judgment, and raise issues of credibility
for a factfinder to resolve. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Emeldi’s holding is even more persuasive in the
circumstances here as the deponent, Curtis, is now deceased; a factfinder will need
to scrutinize his word choices in his preserved deposition testimony even more
carefully than where the deponent is available for trial.1
The district court further erred by not considering Curtis’s testimony that he
inhaled dust after cleaning destroyed electrical parts that were encased in asbestos-
containing material. Thus, viewing the facts in the light most favorable to Plaintiff,
we hold that the district court erred in granting summary judgment on the ground
1In his opening and reply briefs, Plaintiff argued that the district court erred
by not considering the deposition testimony of Danny Mangum. At oral argument,
however, Plaintiff argued that reversal of summary judgment was appropriate
without considering Mr. Mangum’s testimony. Because we agree, we do not
consider Mr. Mangum’s testimony in our decision.
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that Plaintiff failed to raise a triable issue of fact that Curtis was exposed to
asbestos released from Defendants’ products.
3. Because the district court erred in finding that Plaintiff failed to raise a
triable issue of asbestos exposure from Defendants’ products, it also erred to the
extent it relied on this finding to conclude that asbestos exposure from Defendants’
products was not a substantial factor in causing Curtis’s mesothelioma. However,
it is not clear from the record whether the district court decided causation in
Defendants’ favor on a ground other than product identification, such as
insufficient medical evidence linking Curtis’s exposure to asbestos to his
mesothelioma. Therefore, we remand this action to the district court for further
proceedings. We express no opinion on whether Defendants may move for
summary judgment on other grounds of insufficient causation besides product
identification.
VACATED AND REMANDED.
Costs are awarded to Plaintiff-Appellant.
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