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Botts v. United States

United States District Court, Ninth Circuit

December 20, 2013

ROGER BOTTS AND CAROL BOTTS, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

JAMES L. ROBART, District Judge.

I. INTRODUCTION

Before the court is Defendant United States of America's ("the Government") motion for summary judgment under Federal Rule of Civil Procedure 56. (Mot. (Dkt. #45).) Plaintiffs Roger Botts and Carol Botts bring claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80, relating to Mr. Botts' alleged exposure to asbestos products at Puget Sound Naval Shipyard ("the Shipyard"). ( See generally Compl. (Dkt. #1).) Having considered the submissions of the parties, the balance of the record, and the relevant law, and having heard oral argument, the court GRANTS the Government's motion for summary judgment.

II. FACTS

1. Mr. Botts' visits to the Shipyard

As a truck driver, Mr. Botts, made deliveries to the Shipyard from 1965 to 1980. (Interrog. (Dkt. #34-2).) Beginning in 1966, Mr. Botts regularly delivered food to ships and buildings in the Shipyard, and less frequently delivered other supplies. (Disc. Dep. (Dkt. #13-22) at 11-14.) Each delivery involved "10-12 stops" at places such as the galley, hospital, and numerous ships. (Disc. Dep. at 13.) The parties agree that Mr. Botts' company lost the food delivery contract by March 28, 1971. ( See Mot. at 10; Resp. (Dkt. #48) at 13 n. 6.) After that, Mr. Botts continued to make deliveries of other items to the Shipyard. (Perp. Dep. (Dkt. #13-23) at 19-20, 33.) These deliveries, however, were typically destined for buildings, not ships. ( Id. ) Mr. Botts alternately testified that he made a total of 200-300 deliveries to the Shipyard (Perp. Dep. (Dkt. #13-23) at 22, 29) and that he delivered food and other supplies to the shipyard twice a week for a period of 10 years (Disc. Dep. at 13).

When Mr. Botts delivered supplies to ships, he would board the ship to "find the guy in charge" (usually the chief) to sign the paperwork and coordinate unloading. (Disc. Dep. at 18-19.) It generally took Mr. Botts from 5 minutes to 30 minutes to find the chief, although sometimes it took up to one hour. ( Id. ; Perp. Dep. at 45.) The Navy crew would typically unload the supplies onto the ship, but if the crew was shorthanded, Mr. Botts would help. (Disc. Dep. at 19-20).

Mr. Botts recalled that there was "usually" some kind of construction occurring on the ships he visited. (Disc. Dep. at 20.) He thought that the air on the ships was "kind of smoky and dusty." (Perp. Dep. at 24-25.) Mr. Botts encountered Navy personnel "working in the corner walls, like the stairways going down below... working on pipes or some construction overhead." (Disc. Dep. at 20.) He witnessed white insulation material being "wrapped" around pipes "quite a few times." (Disc. Dep. at 20-21; see also Perp. Dep. at 24-25.) He now believes that the material contained asbestos. (Perp. Dep. at 44.) Mr. Botts did not, however, see any warning signs specific to asbestos. ( Id. at 48.) Mr. Botts rarely made deliveries to the Shipyard after 1976. (Disc. Dep. at 24.)

2. Navy asbestos regulations

Navy issued its first mandatory asbestos control rules for personnel not working directly with asbestos, called NAVMAT P-5100, in March, 1970. (1st Beckett Dec. (Dkt. #13-1) ¶ 11.) The March 1970 rules required:

(3) Shipboard "ripout" of insulation shall be accomplished in designated exclusion areas. Only personnel whose work requires their presence shall be permitted in such areas. All personnel entering such areas shall be made aware of the hazards. Ships' force (crewmen) and others accomplishing essential duties in the removal area are required to wear approved respirators.
(4) The area in which removal takes place shall be confined by means of curtains, portable partitions, etc. to prevent excessive contamination of other areas.
...
(9) Dust shall not be exhausted into other working areas.

(NAVMAT (Dkt. #13-8) at 23.)

In February 1971, the Navy issued NAVSHIPS INSTRUCTION 5100.26, which prescribed certain rules for asbestos fabrication, installation, and removal. ( See NAVSHIPS (Dkt. #13-9).) With respect to fabrication, the February 1971 rules required:

(3) Asbestos cloth cutting tables or benches provided with adequate local exhaust ventilation should be used whenever cutting operations are performed. Exhaust air containing asbestos dust will not be dispersed into the atmosphere without being adequately filtered.
...
(8) Industrial type vacuum cleaners should be used to pick up dusts and scrap.... Dry sweeping of scrap or dust should not be permitted.

( Id. at 3-4.)

With respect to installation, the February 1971 rules required:

(2) Unpacking and application of insulation materials at the installation site will be done in such a manner that will minimize airborne dust.
(3) The area around the installation procedures should be isolated when possible. Adequate warning signs (enclosure (1)) will be posted. Only persons whose work requires their presence should be permitted in such areas. If airborne asbestos dust is present, they will wear Bureau of Mines approved respirators for dust or leave the area.
...
(9) Decks and spaces contaminated by insulation debris will ...

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