                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 27 2015
                   UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


JONI SEQUIRA, successor-in-interest              No. 13-56921
to PAUL OLDS,
                                                 D.C. No. 2:12-cv-08539-R-MRW
              Plaintiff - Appellant,

 v.                                              MEMORANDUM*

3M COMPANY, AKA Minnesota
Mining and Manufacturing Company,

              Defendant,

  and

LOCKHEED MARTIN
CORPORATION, DBA Lockheed
Martin Aeronautics, FKA Lockheed
Martin Tactical Systems,

              Defendant - Appellee.



JONI SEQUIRA, successor-in-interest              No. 14-55383
to PAUL OLDS,
                                                 D.C. No. 2:12-cv-08539-R-MRW
              Plaintiff - Appellant,

 v.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                              page 2

3M COMPANY, AKA Minnesota
Mining and Manufacturing Company,

               Defendant,

  and

UNITED TECHNOLOGIES
CORPORATION, sued individually and
as successor-in-interest to Pratt and
Whitney,

               Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                       Argued and Submitted August 31, 2015
                               Pasadena, California

Before:       KOZINSKI, O’SCANNLAIN and BYBEE, Circuit Judges.

        1. The district court did not err in granting summary judgment to Lockheed

based on the government contractor defense. See Boyle v. United Techs. Corp.,

487 U.S. 500, 512 (1988) (design defect claims); Getz v. Boeing Co., 654 F.3d

852, 866 (9th Cir. 2011) (failure-to-warn claims). Lockheed introduced affidavits

from Valentino Jimenez and Deborah Parker establishing the elements of this

affirmative defense. Sequira offered no competent evidence to rebut it.
                                                                                page 3
      The affidavits show that the United States approved “reasonably precise

specifications” requiring Lockheed to use asbestos-containing “Government

Furnished Equipment” in the F-80 aircraft, including a J-33 engine and its

integrated subassemblies. See Boyle, 487 U.S. at 512. These subassemblies

contained blankets and valves, which Paul Olds claimed released asbestos particles

into the air where he worked. Moreover, the equipment conformed to the

government’s specifications because Lockheed complied with all its directives for

constructing the F-80 aircraft, including the use of specific warnings. See Getz,

654 F.3d at 864, 866. Finally, the United States knew about the hazards of

asbestos as early as 1944—well before Olds allegedly encountered it. Therefore,

there were no dangers known to Lockheed but not to the United States. See Boyle,

487 U.S. at 512.

      Sequira attempted to introduce the declaration of Mark Thomson to counter

Lockheed’s assertions. But the district court excluded the Thomson declaration for

lack of foundation and because Thomson “manufacture[d] . . . factual disputes.”

Sequira does not challenge this ruling on appeal and is thus left without any

evidence to contest Lockheed’s affirmative defense. Accordingly, “there is no

genuine dispute as to any material fact” and Lockheed “is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).
                                                                                 page 4
      2. UTC, as successor-in-interest to Pratt & Whitney, is also entitled to

summary judgment because Sequira didn’t present a prima facie case of asbestos

exposure. Sequira didn’t offer competent expert evidence showing that the

asbestos from the Pratt & Whitney engines was a “substantial factor” in causing his

mesothelioma. See Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1219 n.11

(Cal. 1997) (citing Lineaweaver v. Plant Insulation Co., 37 Cal. Rptr. 2d 902, 906

(Cal. Ct. App. 1995)) (directing mesothelioma and lung cancer plaintiffs to

introduce expert testimony to show that exposure was a “substantial factor” in

causing their injuries).

      Having admitted that Olds failed to present competent evidence or even

address the point before the district court, Sequira can’t argue the “substantial

factor” issue here. We don’t review issues raised for the first time on appeal, much

less factual ones. Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir.

2002).


AFFIRMED.
