                                                                            FILED
                           NOT FOR PUBLICATION                              NOV 13 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CHRISTOPHER C. CURTIS, individually              No. 13-56976
and as Personal Representative of the
Estate of Charles C. Curtis,                     D.C. No. 2:12-cv-02014-PA-FMO

              Plaintiff - Appellant,
                                                 MEMORANDUM*
 v.

ABB INCORPORATED, individually and
as successor in interest to ITE Imperial
Co., FKA ITE Circuit Breaker Company,

              Defendant - Appellee.



CHRISTOPHER C. CURTIS, individually              No. 13-56977
and as Personal Representative of the
Estate of Charles C. Curtis,                     D.C. No. 2:12-cv-02014-PA-FMO

              Plaintiff - Appellant,

 v.

EATON CORPORATION, as successor in
interest to Cutler Hammer,

              Defendant - Appellee.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
CHRISTOPHER C. CURTIS, individually              No. 13-56978
and as Personal Representative of the
Estate of Charles C. Curtis,                     D.C. No. 2:12-cv-02014-PA-FMO

              Plaintiff - Appellant,

 v.

SCHNEIDER ELECTRIC USA, INC.,
FKA Square D. Company,

              Defendant - Appellee.


                    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.

                                          2
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.”




                                            3
      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

      1
       In 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.

                                           4
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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