                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 21 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KIMBRA GOTTSCHALL, as Wrongful                   No. 14-15379
Death Heir, and as Successor-in-Interest to
Robert Gottschall, Deceased; DEBRA               D.C. No. 3:10-cv-05096-CRB
GABALL; RAYMOND GOTTSCHALL;
ROBERT W. GOTTSCHALL; RONALD
GOTTSCHALL, as Legal Heirs of Robert             MEMORANDUM*
Gottschall, Deceased,

              Plaintiffs-Appellants,

 v.

GENERAL DYNAMICS
CORPORATION,

              Defendant-Appellee,

 and

HUNTINGTON INGALLS, INC., FKA
Northop Grumman Shipbuilding, Inc.,

              Defendant.



KIMBRA GOTTSCHALL, as Wrongful                   No. 14-15380
Death Heir, and as Successor-in-Interest to
Robert Gottschall, Deceased; DEBRA               D.C. No. 3:10-cv-05096-CRB

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
GABALL; RAYMOND GOTTSCHALL;
ROBERT W. GOTTSCHALL; RONALD
GOTTSCHALL, as Legal Heirs of Robert
Gottschall, Deceased,

              Plaintiffs-Appellants,

 v.

GENERAL DYNAMICS
CORPORATION,

              Defendant,

 and

HUNTINGTON INGALLS, INC., FKA
Northop Grumman Shipbuilding, Inc.,

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Charles R. Breyer, District Judge, Presiding

                           Submitted September 21, 2016**
                              San Francisco, California

Before: PAEZ, CLIFTON, and OWENS, Circuit Judges.

       Plaintiffs Kimbra Gottschall, Debra Gaball, Raymond Gottschall, Robert W.

Gottschall, and Ronald Gottschall appeal the district court’s summary judgment in

         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                         2
favor of Defendants General Dynamics Corporation and Huntington Ingalls, Inc.

We vacate the judgment and remand for further proceedings.

      The California Supreme Court has recently made clear that the summary

judgment entered by the district court, in reliance on a decision by the multi-

district litigation court in Pennsylvania, was based on an incorrect understanding of

California law. In Webb v. Special Electric Co., Inc., 63 Cal.4th 167, 189–90

(2016), the California Supreme Court held:

      To establish a defense under the sophisticated intermediary doctrine, a
      product supplier must show not only that it warned or sold to a
      knowledgeable intermediary, but also that it actually and reasonably
      relied on the intermediary to convey warnings to end users. This
      inquiry will typically raise questions of fact for the jury to resolve
      unless critical facts establishing reasonableness are undisputed.

In light of Webb and the California Supreme Court’s dismissal of a petition for

review in Gottschall v. Crane Co., 230 Cal. App. 4th 1115 (2014), dismissed and

remanded by 373 P.3d 471 (Cal. 2016), we conclude that the summary judgment

based on this theory must be vacated.

      The district court never ruled on Defendants’ government contractor

defense. Defendants argue it to us as an alternative basis to affirm the summary

judgment, but genuine disputes of material fact preclude that result. The

government contractor defense is essentially a defendant’s assertion that “the



                                          3
Government made me do it.” In re Hawaii Fed. Asbestos Cases, 960 F.2d 806,

813 (9th Cir. 1992). To prevail, the defendant “must show that it acted in

compliance with reasonably precise specifications imposed on it by the United

States in deciding whether to provide a warning.” Getz v. Boeing Co., 654 F.3d

852, 866 (9th Cir. 2011) (citation, internal quotations and alteration omitted).

Here, the parties pointed to conflicting evidence regarding the Navy’s labeling

policies, so summary judgment is not appropriate.

      We decline to address Defendants’ arguments based on O’Neil v. Crane Co.,

53 Cal.4th 335 (2012) and McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170 (9th

Cir. 2016), because they were not developed in the district court. See Chadd v.

United States, 794 F.3d 1104, 1109 n. 4 (9th Cir. 2015) (declining to address

arguments raised for the first time on appeal). These arguments are more

appropriate for adjudication in the first instance by the district court on remand.

      Costs are taxed in favor of Plaintiffs and against Defendant-Appellee.

      VACATED AND REMANDED.




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